40th Anniversary of the Federal Court of Australia

Date & time

9am Friday 8 September – 1pm Saturday 9 September 2017

Venue

Federal Court of Australia

Law Courts Building, Queens Square, Sydney

Contact

Nicole Harman

Presented by The Centre for Commercial Law and the Centre for International and Public Law

Conference
Event image

The ANU Centre for Commercial Law and Centre for International and Public Law are proud to announce a conference to mark the 40th anniversary of the establishment of the Federal Court of Australia. Current and former Federal Court Justices, leading academics and practitioners will consider the Federal Court’s contribution to the development of Australian law.

CPD points available for this event.

Speakers 

The Hon Chief Justice James Allsop AO, The Hon Justice Michelle Gordon, The Hon Justice Mark Weinberg, The Hon Justice Andrew Greenwood, The Hon Justice Neil McKerracher, The Hon Justice Alan Robertson, The Hon Justice John Griffiths, The Hon Justice Debra Mortimer, Prof William Gummow AC, Prof Elise Bant, Prof Mick Dodson AM, Prof Mary Keyes, JK Kirk SC, Mr Russell Miller, Assoc Prof Jeannie Paterson, Prof Joellen Riley, Prof Peta Spender, Prof James Stellios, Prof Miranda Stewart and Emeritus Prof Fiona Wheeler.

Early bird registration rates (book by Friday 14 July)

  • Academic early bird: $450
  • General early bird: $600
  • Dinner: $140

Registration rates

  • Academic full rate: $500
  • General full rate: $700
  • Dinner: $140

To inquire about concessional rates for full-time students, please email events.law@anu.edu.au.

Book

A collection of papers to be published after the conference. Special conference price available on registration: $80.

Accommodation near the Federal Court of Australia

Below are a selection of hotels, offering a special delegate rate for conference attendees, within a 10 minute walk of the Federal Court of Australia. Please contact the hotel directly to check availability and pricing, and to make a booking. When making a hotel reservation, please state that you are attending the 40th Anniversary of the Federal Court of Australia conference hosted by ANU College of Law.

Speakers

  • The Hon Chief Justice James Allsop AO »

    The role and future of the Federal Court within the Australian judicial system

    This paper will address the role of the Federal Court within the Australian judicial system from both a historical and contemporary perspective. It will provide an overview of the way in which proposals for an Australian superior federal court were conceived, and chart the Federal Court’s evolving role in light of its historical expansion as a court of general civil federal jurisdiction. 

    The paper will canvass some of the different way in which the ‘role’ of the Court can be conceived – in terms of its jurisdiction, administrative architecture, practice, societal function and jurisprudence. The paper will conclude with some thoughts on the future of the Court and its importance as a national institution. 

  • Professor Elise Bant & Associate Professor Jeannie Paterson »

    Misleading conduct before the Federal Court: Achievements and challenges

    The law of misleading conduct responding to s18 of the Australian Consumer Law (formerly s 52 Trade Practices Act) has been strongly influenced by a series of landmark Federal Court decisions. 

    This body of work has helped not only to interpret the statutory norm and its remedial scheme, but to locate their operation within their broader common law and equitable contexts. However, with the ongoing proliferation of statutes replicating and modifying that regime across a myriad of general and specialised contexts comes the danger of developing incoherence in the law. Fortunately, this is a danger the Federal Court has already demonstrated that it is well-placed to address.

  • The Hon Justice Michelle Gordon »

    Corporations and insolvency jurisdiction of the Federal Court: From passer-by to chameleon lodger

    This topic will consider the development of the Federal Court’s corporations and insolvency jurisprudence over several distinct periods: from the Court’s creation to the conferral of general federal jurisdiction upon it in 1997; from 1997 to the enactment of the Corporations Act 2001 (Cth) (including the impact of Re Wakim); and the period since then. It will also briefly consider some challenges that might lie ahead. 

  • The Hon Justice John Griffiths & Professor James Stellios »

    The Federal Court’s contribution to the development of constitutional law

  • Professor William Gummow AC »

    Remedies

    When lamenting the absence of Chancery practitioners from the present membership of the UK Supreme Court, Lord Millett emphasised that “Equity is not a set of rules but a state of mind” which is focussed upon shaping the appropriate relief in the case at hand. This recalls the statement of Sir Nigel Bowen to the writer that in recruiting for the newly established Federal Court he had sought “equity minds”.

    The jurisdiction of the new Court was based primarily in statutes which included complex remedial provisions not replicating the general law and requiring care and foresight in their application. Part VI of what was then the Trade Practices Act 1974 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth) were significant examples.

    Further, the development of the accrued jurisdiction in questions of general law threw the spotlight upon the phrase “as the Court thinks appropriate” in the general remedial provision of s 23 of the Federal Court of Australia Act 1976 (Cth). The development in Australia of what has become known as “case management”, discovery before suit, the class action, the assets preservation order and, most significantly, of the remedial constructive trust are examples of the application of the cast of judicial mind which Sir Nigel had fostered in the new Court.

  • Professor Mary Keyes »

    The contribution of the Federal Court to the development of Australian private law

    This presentation will outline the influential contributions that the Federal Court has made to the development of a distinctively Australian private international law, particularly in the area of jurisdiction. It will also consider how the court has addressed the challenges of dealing with the Australian Consumer Law and the Trade Practices Act in transnational commercial litigation. Finally, it will consider the competition for international commercial dispute resolution, and the Federal Court’s position in that context.

  • JK Kirk SC »

    The Federal Court and the development of the nation

     

  • The Hon Justice Neil McKerracher »

    The law of admiralty: An ancient regime in a modern era

    Despite its antiquity, the law of Admiralty in its modern form has evolved to meet the international maritime world’s constantly developing yet integrated and technological environment.  Australia is a major consumer of maritime services in the world market.  In this unusually hands on area, over the 40 years of its operation the FCA has worked on two combined fronts - the judicial and the practical.  And has necessarily had two regions in mind - national and international.  

  • Mr Russell Miller »

    Developing Australia’s competition law: The Federal Court’s contribution

  • The Hon Justice Debra Mortimer »

    Anti-discrimination: The history of the Federal Court’s human rights jurisdiction

    Only recently, since the introduction of the National Court Framework in 2013, has the Federal Court identified itself as having a “human rights” jurisdiction. That label is now applied to all proceedings involving complaints of unlawful discrimination. Mostly they arise under the four pieces of federal legislation which confer jurisdiction in this Court after a complaint has been terminated by the Australian Human Rights Commission. The Court has also heard cases in its accrued jurisdiction under the Victorian Charter of Rights and Responsibilities Act 2006. 

    Justice Mortimer will trace the development of the Court’s anti-discrimination jurisdiction, and share some snapshots about the nature and number of proceedings in that jurisdiction over the Court’s 40 year history.

  • Professor Joellen Riley »

    The Federal Court’s contribution to Australian workplace law

    Since 25 May 1997, the Federal Court of Australia has exercised jurisdiction over matters arising under federal workplace relations laws, and, as a consequence of the complexity of such matters, has been influential in the development of Australian employment contract law. This is a vitally important field of law, affecting the fundamental economic and social relationships upon which working citizens build their lives. 

    This paper considers a selection of important matters upon which the Federal Court has adjudicated, in ways that influence our understanding of the respective rights and obligations of working people in Australia today.

  • The Hon Justice Alan Robertson »

    How does the court deal with facts on judicial review?

    Fundamental to the distinction between merits review and judicial review is how the court or decision-maker approaches the facts. There is a marked contrast between an appeal on a question of law in the Australian federal system and how the relationship between the tribunals and the court is considered in England: compare, for example, Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 and Criminal Injuries Compensation Authority v Hutton [2016] EWCA Civ 1305. There is also a marked difference between the approach to facts on judicial review in E v Secretary of State for the Home Department [2004] EWCA Civ 49; [2004] QB 1044 and what is said by the High Court in, for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [114]. But this is not to say that no fact-finding can found jurisdictional error for the purposes of s 39B of the Judiciary Act 1903 (Cth) or a ground of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). What was said by Brennan J in Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77 does not go so far.

    This paper will consider the questions of jurisdictional facts; when new evidence will be admitted on judicial review; when “no evidence” may be made out; overlooking important material facts, as in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; whether credibility issues are “par excellence” issues of fact in light of CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 and ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; and fact-finding which may be said to be irrational or illogical as considered in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR.

  • Professor Peta Spender »

    The Federal Court’s contribution to practice and procedure

  • Professor Miranda Stewart »

    The gatekeeper court: For the revenue or the taxpayer?

    Since the establishment of the Federal Court of Australia, it has become the leading tax court in the nation. Twenty years after establishment of the Federal Court, Mason CJ of the High Court laid down that the Full Court of the Federal Court would, in most tax cases, be the final court of appeal, subject to a limited exception for questions of “fundamental principle” (FCT v Westfield Ltd (1991) 22 ATR 400 at 402). The Tax Office lost the appeal in the Federal Court in that case and was, by some measures, a sore loser. Since then, it seems that the High Court may have a renewed interest in hearing tax appeals. But the FCA remains the final port of call for most taxpayers and the ATO.

    Most taxation revenue is raised through federal laws which all fall under the jurisdiction of the Federal Court. The Federal Court took over responsibility for tax cases both from Supreme Courts of the States (which had heard federal tax cases) and from the original jurisdiction in the High Court of Australia. The applicant is, of course, always the taxpayer against an assessment of the Australian Tax Office or by either party for a review of a merits decision in the Administrative Appeals Tribunal. With special leave, appeals lie to the High Court. 

    In the spirit of tax inquiry into the nature of “income”, this paper will do both a “wide survey and an exact scrutiny” (FCT v Stone (HCA), citing (1938) 59 CLR 729 at 740) of aspects of the Federal Court record in taxation matters over the last 40 years.

  • The Hon Justice Mark Weinberg »

    Federal Indictable Offences: Has the autochthonous expedient run its course?

  • Emeritus Professor Fiona Wheeler »

    The Federal Court of Australia and extra-judicial work

    Judges of the Federal Court of Australia have engaged in more extra-judicial work for Australian governments than members of any other federal court. This has ranged from issuing telecommunication interception warrants, service on bodies like the AAT, conduct of Royal Commissions and appointment to substantive executive posts including, in one instance, as ASIO Director-General.

    At the time of the Court’s establishment in the 1970s, many Australian judges undertook work of this kind. Yet, for federal judges, it posed an obvious tension with the separation of federal judicial power under the Australian Constitution. That tension led the High Court in the 1980s and 1990s, in a series of cases concerning the Federal Court, to develop an incompatibility test that today limits extra-judicial work by all Australian judges. As a result, certain past instances of extra-judicial work by Federal Court judges would now be unconstitutional. More generally, the modern Court has retreated from some types of extra-judicial activity previously undertaken by its members. 

    This paper examines this shift over the life of the Court through the lens of constitutional law, public policy and the conventions of judicial office. While it is argued that a narrowing of acceptable forms of extra-judicial work by Australian judges is an appropriate response to changing times, any account of the first 40 years of the Federal Court must acknowledge the important contribution made by its members to public service outside the courtroom.

Additional Materials

Sessions

Session 1

Presentation

9.00am to 10.30am
Friday 8 September 2017
Federal Court of Australia

The role and future of the Federal Court within the Australian judicial system

The Hon Chief Justice James Allsop AO, Federal Court of Australia

The Federal Court’s contribution to practice and procedure

Professor Peta Spender, The Australian National University

The Federal Court of Australia and extra-judicial work

Emeritus Professor Fiona Wheeler, The Australian National University

Session 2

Presentation

11.00am to 12.30pm
Friday 8 September 2017
Federal Court of Australia

Anti-discrimination: The history of the Federal Court’s human rights jurisdiction

The Hon Justice Debra Mortimer, Federal Court of Australia

How does the court deal with facts on judicial review?

The Hon Justice Alan Robertson, Federal Court of Australia

The Federal Court and constitutional law

The Hon Justice John Griffiths, Federal Court of Australia and Professor James Stellios, The Australian National University

Session 3

Presentation

1.30pm to 3.00pm
Friday 8 September 2017
Federal Court of Australia

The contribution of the Federal Court to the development of Australian private international law

Professor Mary Keyes, Griffith University

Misleading conduct before the Federal Court: Achievements and challenges

Professor Elise Bant and Associate Professor Jeannie Paterson, University of Melbourne

Developing Australia's competition law: The Federal Court's contribution

Mr Russell Miller AM, MinterEllison

Session 4

Presentation

3.30pm to 5.00pm
Friday 8 September 2017
Federal Court of Australia

National approaches to the conduct of intellectual property litigation in the Federal Court of Australia

The Hon Justice Andrew Greenwood, Federal Court of Australia

The Gatekeeper Court – for the revenue or the taxpayer?

Professor Miranda Stewart, The Australian National University

Native title law

Professor Mick Dodson AM, The Australian National University

Conference dinner

Dinner

6.30pm to 10.00pm
Friday 8 September 2017
Parliament of New South Wales

The conference dinner will be held at Strangers' Dining Room & Lounge at Parliament of New South Wales, 6 Macquarie Street, Sydney

Session 5

Presentation

9.30am to 11.00am
Saturday 9 September 2017
Federal Court of Australia

Corporations and insolvency jurisdiction of the Federal Court – From passer-by to chameleon lodger

The Hon Justice Michelle Gordon, High Court of Australia

Remedies

Professor William Gummow AC, The Australian National University

The law of admiralty: An ancient regime in a modern era

The Hon Justice Neil McKerracher, Federal Court of Australia

Session 6

Presentation

11.00am to 12.30pm
Saturday 9 September 2017
Federal Court of Australia

Employment and industrial relations

Professor Joellen Riley, University of Sydney

Federal Indictable Offences: Has the autochthonous expedient run its course?

The Hon Justice Mark Weinberg, Court of Appeal, Supreme Court of Victoria

The Federal Court and the development of the nation

JK Kirk SC, NSW Bar

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