Australian Federal Police (AFP) and the Federal Court of Australia (FCA) have both issued definitions of judicial arbiters in a bid to ensure fairness in court proceedings.
The definition released by the AFP says that a judicial arbitrator is a “person who presides over a case, such as a trial or hearing, and who is independent of a person’s legal representation”.
The FCA also has a similar definition of judicial search:”The person conducting a judicial search is an individual who, for reasons of convenience, makes or receives a judicial notice or direction in connection with a judicial proceeding”.
The definitions also give the meaning of “trial”, “judgement”, “court proceedings” and “justice”.
While some are quick to point out the use of “court”, “trial” and the “judgment” could be misinterpreted as references to the court’s own case process, they say the definition applies to all forms of proceedings in Australian courts.
The definitions of the FCA and the AFP do not refer to the Supreme Court of Victoria.
A statement from the FACA said it was aware of the new definitions, and said the definitions were designed to “ensure a fair, impartial and expeditious application of the law”.
“We hope these definitions will assist all Australians, including judges, to understand the meaning and application of Australian law and to have confidence in the application of our laws,” the statement said.
While there are no specific rules governing the use and application the FECA uses for the new judicial search and search warrant, there is some guidance available in the Federal Courts Rules of Practice that outlines the rules of conduct that judges should follow when entering into judicial proceedings.
These include:Notifying and confirming a matter within 30 daysThe court must be satisfied that the matter is within the scope of the search warrantThe court cannot give a written or oral direction that the search or warrant is unlawful or that it should not be carried out.
This applies to the conduct of search warrants and to all matters relating to judicial matters, including those relating to the application for a judicial award or an injunction, whether or not the matter has been decided.
Notifying the partiesThe court should inform the parties to a judicial inquiry whether there are reasonable grounds to believe that an application is within its jurisdiction to consider the matter, and the time, place and manner of the hearing.
The court may inform the party seeking the matter if they have a right of appeal.
The party requesting the matter should be informed of the court decision not to proceed with the matter.
The parties should be advised of the grounds for not proceeding.
Notify the other partyThe court will inform the other parties to the judicial inquiry.
The other party should be notified of the decision not on appeal, but should be provided with a written statement in writing that the parties agree not to seek a judicial review.
The statement should include:The court has made its decision not in the party’s best interests;It is in the best interests of the party concerned to seek review;If the parties disagree with the court, the court must advise them of their options and advise them if they will seek a review of the matter on appeal.
If the court agrees to refer the matter to a judge, the party with the most serious objection should be given notice of the request and be given an opportunity to respond.
The FACA and the FCO have also published guidance for the use by a judge of a document, such an affidavit, in relation to the investigation.
The document is known as a “documentary affidavit”.
Judges must not make a document based on an affidavit unless there is a compelling and articulable case for doing so.
The AFP and the FCA have also released guidance for judges who are dealing with the issues in relation the application or interpretation of the Crimes Act 1914, the Racial Discrimination Act 1974 and the Crimes (Amendment) Act 1988.
The guidance says judges should: Make an affidavit in relation a matter in which a person is charged with a crime or a contravention of a criminal law.
An affidavit should be made in the form of a statement and signed by a person who has a legal interest in the matter; andIt should set out:The matters to be examined by the court;The basis for the finding or the reason for the making of the affidavit;The person’s right to a fair and impartial hearing; andThe grounds on which the court decides not to make an affidavit.
The document should be in writing, and be signed by an officer who is authorised to act for the court or, if the affidavit is not made, by a barrister or an attorney who is not authorised by the Court to act.
Judging by an affidavitJudging is a process whereby a judge reviews the evidence, making a determination about the credibility of the evidence and determining whether or to what extent the evidence should be accepted.
For the purposes