Commonwealth of Australia Explanatory Memoranda

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA BILL 2019

                          2019-2020-2021




   THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                             SENATE




FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA BILL 2019




       SUPPLEMENTARY EXPLANATORY MEMORANDUM


        Amendments to be Moved on Behalf of the Government




                   (Circulated by authority of the
        Attorney-General, the Honourable Christian Porter MP)
AMENDMENTS TO THE FEDERAL CIRCUIT AND FAMILY COURT OF
AUSTRALIA BILL 2019


(Government)


GENERAL OUTLINE

1. The Federal Circuit and Family Court of Australia Bill 2019 ('FCFC Bill'), together with
   the Federal Circuit and Family Court of Australia (Consequential Amendments and
   Transitional Provisions) Bill 2019 (together, the Bills), would bring the Federal Circuit
   Court of Australia (the Federal Circuit Court) and the Family Court of Australia (the
   Family Court) together into an overarching, unified administrative structure to be known
   as the Federal Circuit and Family Court of Australia (FCFC). The structural reforms
   facilitated by the Bill would create a framework in the FCFC for common leadership,
   common management and a comprehensive and consistent internal case management
   approach.

2. On 5 December 2019 the Senate referred the Bills to the Senate Legal and Constitutional
   Affairs Legislation Committee for inquiry and report. In its report released 20 November
   2020, the committee's sole recommendation was that the Bills be passed. However, the
   committee urged the Government to consider amending the Bill to legislate a minimum of
   25 Judges in Division 1, instead of prescribing the minimum by regulation, as the Bill
   currently provides for.

3. There are two purposes for these amendments.

4. The first purpose is to prescribe the minimum number of Division 1 Judges in the primary
   legislation itself rather than providing for it to be prescribed by regulation. The
   amendments provide that the minimum number of Division 1 Judges is to be at least 25
   Judges including the Chief Justice and Deputy Chief Justice of Division 1, but for
   counting purposes this minimum number does not include Judges who are also judges of
   the Family Court of Western Australia.

5. The second purpose is to revise explanatory notes to reflect that Rules of Court for FCFC
   Division 1 and FCFC Division 2 are to be made solely by the Chief Justice and Chief
   Judge, respectively, rather than by a majority of Judges, for the first 18 months from
   commencement (instead of after two years). The power to make Rules of Court reverts
   back to the Judges, or a majority of them, thereafter.


FINANCIAL IMPACT

6. None.




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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Amendments to the Federal Circuit and Family Court of Australia Bill 2019

1. These amendments are compatible with the human rights and freedoms recognised or
   declared in the international instruments listed in section 3 of the Human Rights
   (Parliamentary Scrutiny) Act 2011.

Overview of the amendments

2. Currently, subclause 9(3) of the Bill enables regulations to prescribe a minimum number
   of Judges for the FCFC (Division 1) (the continuation of the Family Court of Australia).
   The explanatory memorandum to the Bill currently indicates that it is the Government's
   intention to prescribe 25 as the minimum number of Judges to hold office in the FCFC
   (Division 1).

3. The amendments include the requirement that there be a minimum of 25 Judges
   appointed to the FCFC (Division 1) in the Bill itself, rather than providing for the
   minimum to be prescribed by regulation. The amendments also provide that the minimum
   number of Division 1 Judges includes the Chief Justice and Deputy Chief Justice of
   Division 1 but does not include Judges who are also judges of the Family Court of
   Western Australia.

4. The amendments also revise explanatory notes to reflect that Rules of Court for Division
   1 and Division 2 are to be made solely by the Chief Justice and Chief Judge, respectively,
   rather than by a majority of Judges, for the first 18 months from commencement (instead
   of after two years). The power to make Rules of Court reverts back to the Judges, or a
   majority of them, thereafter.

Human rights implications

5. These amendments do not engage any of the applicable rights or freedoms.

Conclusion

6. These amendments are compatible with human rights as they do not raise any human
   rights issues.




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NOTES ON AMENDMENTS

List of abbreviations

FCFC (Division 1)                    Federal Circuit and Family Court of Australia (Division 1)

FCFC (Division 2)                    Federal Circuit and Family Court of Australia (Division 2)



Amendment: Clause 9, page 18 (lines 25 to 27)

This amendment replaces subclause 9(3). New subclause 9(3) prescribes that at least 25
Judges are to hold office in the FCFC (Division 1).

The amendment also inserts subclause 9(4) which provides that this figure of 25 Judges
includes the Chief Justice and Deputy Chief Justice of Division 1 but does not include Judges
who are also judges of the Family Court of Western Australia.


Amendment: Clause 76, page 73 (line 32)

This amendment substitutes "2 years" with "18 months" in the Note to clause 76. The revised
Note directs the reader to amendments made by Part 4 of Schedule 1 of the Federal Circuit
and Family Court of Australia (Consequential Amendments and Transitional Provisions Act)
2019 that are to commence 18 months after the commencement of the section. These
amendments will provide that the Rules of Court for the FCFC (Division 1) will be made by
FCFC (Division 1) Judges or a majority of them, 18 months after the commencement of this
clause.


Amendment: Clause 217, page 175 (line 20)

This amendment substitutes "2 years" with "18 months" in the Note to clause 217. The
revised Note directs the reader to amendments made by Part 4 of Schedule 1 of the Federal
Circuit and Family Court of Australia (Consequential Amendments and Transitional
Provisions Act) 2019 that are to commence 18 months after the commencement of the
section. These amendments will provide that the Rules of Court for the FCFC (Division 2)
will be made by FCFC (Division 2) Judges or a majority of them, 18 months after the
commencement of this clause.




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