Commonwealth of Australia Explanatory Memoranda

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FEDERAL CIRCUIT COURT OF AUSTRALIA (CONSEQUENTIAL AMENDMENTS) BILL 2012

                   2010 - 2011 - 2012 - 2013




THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




              HOUSE OF REPRESENTATIVES




      FEDERAL CIRCUIT COURT OF AUSTRALIA
     (CONSEQUENTIAL AMENDMENTS) BILL 2012




   SUPPLEMENTARY EXPLANATORY MEMORANDUM




     Amendments to be moved on behalf of the Government




      (Circulated by the authority of the Attorney-General,
                the Hon Mark Dreyfus, QC MP)

FEDERAL CIRCUIT COURT OF AUSTRALIA (CONSEQUENTIAL
AMENDMENTS) BILL 2012


OUTLINE

The Federal Circuit Court of Australia (Consequential Amendments) Bill 2012 will operate
together with the Federal Circuit Court of Australia Legislation Amendment Act 2012, and
make consequential amendments to Commonwealth legislation to reflect changes to the name
of the Federal Magistrates Court and the title of Federal Magistrate.
The proposed government amendments will include additional consequential amendments to
Part 5.3 of the Criminal Code Act 1995 to:

      update relevant references to reflect the new name of the Federal Magistrates Court as
      the `Federal Circuit Court of Australia' and the new title of Federal Magistrate as
      `Judge', and
      provide additional savings provisions to preserve the continuity of existing
      arrangements for functions exercised by a Federal Magistrate under the new title of
      `Judge'.
FINANCIAL IMPACT STATEMENT

These Government amendments have no financial impact.




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FEDERAL CIRCUIT COURT OF AUSTRALIA (CONSEQUENTIAL AMENDMENTS)
BILL 2012

NOTES ON AMENDMENTS

Amendment (1)

This amendment inserts a new item 110A before item 111 in Schedule 1 of the Bill.
Item 110A updates the reference to `Federal Magistrates Court' to be `Federal Circuit Court
of Australia' in the definition of `issuing court' in subsection 100.1(1). Subsection 100.1(1)
provides definitions of expressions in Part 5.3 of the Code. `Issuing court' is defined to mean
the Federal Court of Australia, the Family Court of Australia or the Federal Magistrates
Court. This consequential amendment will update subsection 100.1(1) to reflect the new
name of the Court.
Amendment (2)

This amendment inserts a new item 110B after proposed item 110A in Schedule 1 of the Bill.
Item 110B repeals paragraph 105.2(1)(c). Paragraph 105.2(1)(c) provides that a Federal
Magistrate may be appointed as an issuing authority for continued preventative detention
orders. This consequential amendment will remove paragraph 105.2(1)(c) as it is no longer
necessary because a Judge of the Federal Circuit Court will be a `Judge' for the purposes of
paragraph 105.2(1)(b).
Amendment (3)

This amendment inserts a new item 110C after proposed item 110B in Schedule 1 of the Bill.
Item 110C omits the reference to `Federal Magistrates' in the note to subsection 105.11(1).
The note to subsection 105.11(1) explains that judges, Federal Magistrates, Administrative
Appeals Tribunal members and retired judges can be appointed as `issuing authorities' under
subsection 100.1(1) and section 105.2. This consequential amendment will remove the
reference to Federal Magistrates in the note to subsection 105.11(1) as it is no longer
necessary (see Amendment 2).
Amendment (4)
This amendment inserts new items 110D and 110E after proposed item 110C in Schedule 1
of the Bill.
Item 110D repeals the heading to section 105.12 and inserts the new heading: `Judge, AAT
member or retired judge may make continued preventative detention order'. This
consequential amendment will insert a new heading to section 105.12 to reflect the new title
of Federal Magistrate as `Judge'.
Item 110E removes the reference to `Federal Magistrates' in the note to subsection 105.12(1).
The note to subsection 105.12(1) explains that judges, Federal Magistrates, Administrative
Appeals Tribunal members and retired judges can be appointed as `issuing authorities' under
subsection 100.1(1) and section 105.2. This consequential amendment will remove the
reference to Federal Magistrates in the note to subsection 105.12(1) as it is no longer
necessary (see Amendment 2).




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Amendment (5)
This amendment inserts new items 110F and 110G after proposed new item 110E in Schedule
1 of the Bill. Items 110F and 110G omit the references to `Federal Magistrate' in
subsection 105.18(2). Subsection 105.18(2) provides that a Federal Magistrate or other
issuing officers who makes, revokes or extends a continued preventative detention order or
prohibited contact order does so in a personal capacity and not as a court or a member of a
court. These consequential amendments will remove the references to `Federal Magistrate'
as they are no longer necessary because a Judge of the Federal Circuit Court of Australia will
be a `Judge' for the purposes of subsection 105.18(2).
Amendment (6)

This amendment inserts a new item 110H after proposed item 110G in Schedule 1 of the Bill.
Item 110H updates references to `Federal Magistrate' to be `Judge of the Federal Circuit
Court of Australia' wherever they occur in subsections 105.43(4), (5) and (7).
Subsection 105.43(4) provides that, unless a Federal Magistrate orders otherwise, certain
identification material must not be taken from a person who is being detained under the
section 104.34. Subsections 105.43(5) and (7) provide for considerations to which a Federal
Magistrate must have regard in deciding whether to make an order under subsection
105.43(4). These consequential amendments will update subsections 105.43(4), (5) and (7)
to reflect the new title of Federal Magistrate as `Judge' and the new name of the Court.

Amendment (7)
This amendment inserts new items 110J, 110K and 110L after proposed item 110H in
Schedule 1 of the Bill.
Item 110J repeals the heading to section 105.46 and inserts the new heading `105.46 Nature
of functions of Federal Circuit Court Judge'. This consequential amendment will insert a
new heading to section 105.46 to reflect the new title of Federal Magistrate as `Judge' and the
new name of the Court.
Item 110K updates references to `Federal Magistrate' to be `Judge of the Federal Circuit
Court of Australia' wherever they occur in section 105.46. Section 105.46 provides that
power to make an order conferred on a Federal Magistrate under section 105.43 is conferred
in a personal capacity, and that a Federal Magistrate performing such a function has the same
protection and immunity as if they were performing that function as, or as a member of, the
Federal Magistrates Court. These consequential amendments will update section 105.46 to
reflect the new title of Federal Magistrate as `Judge' and the new name of the Court.
Item 110L updates the reference to the `Federal Magistrates Court' to be the `Federal Circuit
Court of Australia' in subsection 105.46(3). Subsection 105.43(3) provides for the protection
and immunity of a Federal Magistrate performing functions under section 105.43 as if they
were performing that function as, or as a member of, the Federal Magistrates Court. This
consequential amendment will update subsection 105.46(3) to reflect the new name of the
Court.
Amendment (8)
This amendment inserts a new item 110M after proposed item 110L in Schedule 1 of the Bill.
Item 110M inserts a new section 104.6 at the end of Division 106 of the Criminal Code. New

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section 104.6 provides for existing appointments and consents under subsections 105.2(1)
and 105.2(2) of the Criminal Code Act 1995 to continue in force and continue to have effect
under the new title of Federal Magistrate as `Judge', after commencement of the section.
This item reflects the Bill's intention to preserve the continuity of existing arrangements for
functions exercised by a Federal Magistrates under their new title of `Judge'. The Bill does
not alter the nature or conditions of exercise of these functions conferred under legislation.
New section 104.6 has been included to ensure certainty of existing arrangements. New
item 110M does not limit the operation of section 7 or subsection 25B(1) of the Acts
Interpretation Act 1901 (see Amendment 9).

Amendment (9)
This amendment inserts a reference to `110M' in Schedule 4, item 3(a), immediately
following the reference to `108'. Item 3 of Schedule 4 of the Bill clarifies that specified
amendments in Schedules 1, 2 and 3 of the Bill do not limit the operation of section 7 or
subsection 25B(1) of the Acts Interpretation Act 1901. This consequential amendment will
update Schedule 4, item 3(a) to clarify that the proposed item 110M does not limit the
operation of section 7 or subsection 25B(1) of the Acts Interpretation Act 1901 (see
Amendment 8).




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