Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
1999
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FEDERAL MAGISTRATES (CONSEQUENTIAL AMENDMENTS) BILL 1999
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Attorney-General,
the Honourable Daryl Williams AM QC
MP)
ISBN: 0642 40478X
TABLE OF CONTENTS
Page
GENERAL OUTLINE 1
FINANCIAL IMPACT STATEMENT 2
NOTES ON CLAUSES 3
SCHEDULES 4
Schedule 1 - Amendment
of ACIS Administration Act 1999
4
Schedule 2 - Amendment of Acts
Interpretation Act 1901 4
Schedule 3
- Amendment of Administrative Appeals Tribunal Act
1975 4
Schedule 4 - Amendment of
Administrative Decisions (Judicial Review)
5
Act
1977
Schedule 5 - Amendment of Archives
Act 1983 5
Schedule 6 - Amendment
of Australian Citizenship Act
1948 5
Schedule 7 - Amendment of
Bankruptcy Act 1966 5
Schedule 8
- Amendment of Child Support (Assessment) Act
1989 6
Schedule 9 - Amendment of
Child Support (Registration and Collection)
Act
1988 7
Schedule 10 -
Amendment of Crimes (Superannuation Benefits) Act
1989 9
Schedule 11 - Amendment of Family
Law Act 1975 9
Schedule 12 -
Amendment of Federal Court of Australia Act
1976 14
Schedule 13 - Amendment of
Federal Proceedings (Costs) Act
1981 16
Schedule 14 - Amendment of
Foreign Evidence Act
1994 16
Schedule 15 - Amendment of
Freedom of Information Act
1982 17
Schedule 16 - Amendment of
Human Rights and Equal Opportunity
Commission Act
1986 17
Schedule 17 - Amendment
of Judges (Long Leave Payments) Act
1979 17
Schedule 18 - Amendment of
Judges’ Pensions Act
1968 18
Schedule 19 - Amendment of
National Crime Authority Act
1984 18
Schedule 20 - Amendment of
Ombudsman Act 1976 18
Schedule 21
- Amendment of Parliamentary
Contributory
Superannuation Act
1948 18
Schedule 22 - Amendment
of Public Service Act
1922 18
Schedule 23 - Amendment of
Taxation Administration Act
1953 18
Schedule 24 - Amendment of
Trade Practices Act
1974 18
Schedule 25 - Amendment of
Workplace Relations Act 1996 19
FEDERAL MAGISTRATES (CONSEQUENTIAL AMENDMENTS) BILL 1999
GENERAL
OUTLINE
The Federal Magistrates Bill
establishes the Federal Magistrates Court. The Federal Magistrates
(Consequential Amendments) Bill makes consequential amendments to give the
Federal Magistrates Court concurrent jurisdiction with either the Federal Court
of Australia or the Family Court of Australia under various Acts, and makes
other minor consequential amendments to a number of other
Acts.
The Bill amends the following Acts to give
the Federal Magistrates Court
jurisdiction:
• Administrative Appeals
Tribunal Act 1975
• Administrative
Decisions (Judicial Review) Act
1977
• Bankruptcy Act
1966
• Child Support (Assessment) Act
1989
• Child Support (Registration and
Collection) Act 1988
• Family Law Act
1975
• Human Rights and Equal Opportunity
Commission Act 1986
• Trade Practices Act
1974
• Workplace Relations Act
1996
Amendments are made to the Federal
Court Act 1976, to provide for appeals from the Federal Magistrates Court to
the Federal Court, other than in family law and child support matters, where
appeals can be made to the Family Court. The amendments also give the Federal
Court power to transfer proceedings to the Federal Magistrates Court. There are
also a number of other minor consequential amendments made to this
Act.
Amendments are made to the Family Law Act
1975 to give the Federal Magistrates Court jurisdiction under that Act. In
addition, amendments are made to provide for appeals from the Federal
Magistrates Court to the Family Court in proceedings under that Act and to give
the Family Court power to transfer proceedings to the Federal Magistrates Court.
There are also a number of other minor consequential amendments made to that
Act.
Consequential amendments are made to the
following Acts as a result of the Federal Magistrates Court having jurisdiction
under the Administrative Appeals Tribunal Act
1975:
• Archives Act
1983
• Freedom of Information Act
1982
Consequential amendments are made to the
following Acts as a result of the Federal Magistrates Court having jurisdiction
under the Administrative Decisions (Judicial Review) Act
1976:
• ACIS Administration Act
1999
• National Crime Authority Act
1984
• Taxation Administration Act
1953
Consequential amendments are made to the
following Acts, either as a result of the establishment of the Federal
Magistrates Court as a new federal court, or as a result of the establishment of
the judicial office of Federal Magistrate as part of that
court:
• Acts Interpretation Act
1901
• Australian Citizenship Act
1948
• Crimes (Superannuation Benefits)
Act 1989
• Federal Proceedings (Costs) Act
1981
• Foreign Evidence Act
1994
• Judges (Long Leave Payments) Act
1979
• Judges’ Pensions Act
1968
• Ombudsman Act
1976
• Parliamentary Contributory
Superannuation Act 1948
• Public Service
Act 1922
FINANCIAL IMPACT
STATEMENT
The Bill will not have any
significant financial impact beyond that incurred in establishing the Federal
Magistrates Court.
NOTES ON CLAUSES
Clause 1 - Short Title
This clause formally provides for the short title of the Federal Magistrates (Consequential Amendments) Bill 1999.
Clause 2 - Commencement
Clause 2 provides for the commencement of the Act. Subclause 2(1) provides that the Act will commence on Royal Assent, subject to this section.
Subclause 2(2) provides that, if the ACIS Administration Act 1999 commences after the commencement of section 1 of this Act, Schedule 1 (amending the ACIS Administration Act 1999) commences immediately after the commencement of that Act. This ensures that the amendments do not take effect until that Act has commenced.
Subclause 2(3) provides that, if Schedule 1 to the Human Rights Legislation Amendment Act (No. 1) 1999 commences after the commencement of section 1 of this Act, Schedule 16 of this Act commences immediately after the commencement of Schedule 1 of the Human Rights Legislation Amendment Act (No. 1) 1999. This ensures that the amendments to the Human Rights and Equal Opportunity Commission Act 1986 do not take effect until after amendments to that Act have been made by Schedule 1 to the Human Rights Legislation Amendment Act (No. 1) 1999.
Subclause 2(4) provides that if item 2 of Schedule 1 to the Human Rights Legislation Amendment Act (No. 2) 1999 commences before the commencement of section 1, then the amendments made by Schedule 16 are taken to be made to the Human Rights and Responsibilities Commission Act 1986 rather than the Human Rights and Equal Opportunities Commission Act 1986. This amendment is necessary because item 2 of Schedule 1 to the Human Rights Legislation Amendment Act (No. 2) 1999 changes the name of the Human Rights and Equal Opportunities Commission Act 1986 to the Human Rights and Responsibilities Commission Act 1986.
Subclause 2(5) provides that if section 151AQA of the Trade Practices Act 1975 commences after the commencement of section 1 of this Act, then items 5 and 6 of Schedule 24 commence after the commencement of that provision. This is to ensure that that section is not amended by Schedule 24 before it commences operation.
Subclause 2(6) provides that if section 152DNB of the Trade Practices Act 1975 commences after the commencement of section 1 of this Act, then item 7 of Schedule 24 commences after the commencement of that provision. This is to ensure that that section is not amended by Schedule 24 before it commences operation.
Subclause 2(7) provides that if section 127AAA of the Workplace Relations Act 1996 commences after the commencement of section 1 of this Act, then item 5 of Schedule 25 commences after the commencement of s127AAA. This is to ensure that that section is not amended by Schedule 25 before it commences operation.
Subclause 2(8) provides that if section 127AAB of the Workplace Relations Act 1996 commences after the commencement of section 1 of this Act, then item 6 of Schedule 25 commences after the commencement of s127AAB. This is to ensure that that section is not amended by Schedule 25 before it commences operation.
Subclause 2(9) provides that if section 298TA of the Workplace Relations Act 1996 commences after the commencement of section 1 of this Act, then item 9 of Schedule 25 commences after the commencement of s298TA. This is to ensure that that section is not amended by Schedule 25 before it commences operation.
Clause 3 - Schedule(s)
This clause provides that, subject to section 2, each Act in
the Schedules to this Act is amended or repealed as set out in the Schedule
concerned.
Schedule 1 - Amendment of ACIS
Administration Act 1999
These amendments are
consequential upon applications under the Administrative Decisions (Judicial
Review) Act 1976 being able to be made to the Federal Magistrates Court as
well as the Federal Court.
Schedule 2 -
Amendment of Acts Interpretation Act
1901
Item
1
This item amends section 16C, to ensure that
a Federal Magistrate is not included in the term “Magistrate” when
referred to in an Act. State and Territory Magistrates are given powers under
numerous Acts to perform various functions. Federal Magistrates will have power
to perform only those functions which are expressly conferred on them by
statute.
Item 2
This item amends paragraph 26(d), to ensure
that the Federal Magistrates Court is excluded from the definition of
“court of summary
jurisdiction”.
Schedule 3 - Amendment of
Administrative Appeals Tribunal Act
1975
Items 1-6 and
8-10
The amendments made by these items give
the Federal Magistrates Court the same powers as the Federal Court with respect
to appeals from the Administrative Appeals Tribunal (“AAT”) under
this Act.
Item
7
This item inserts section 44AA, the effect of
which is that any appeals from decisions of the AAT must be filed in the Federal
Court, but that such appeals can then be transferred by the Federal Court to the
Federal Magistrates Court. Appeals relating to decisions of the AAT constituted
by one or more presidential member and decisions made under portfolio
legislation of the Minister for Immigration and Ethnic Affairs cannot be
transferred to the Federal Magistrates
Court.
Items
11-18
The amendments made by these items will
impose similar obligations with respect to the custody of AAT documents on the
Federal Magistrates Court as exist for the Federal
Court.
Schedule 4 - Amendment of Administrative
Decisions (Judicial Review) Act 1977
Items
1-5, 67-70
The amendments made by these items
are consequential on both the Federal Court and the Federal Magistrates Court
having jurisdiction under this Act.
Items
6-14
The amendments made by these items give
the Federal Magistrates Court concurrent jurisdiction with the Federal Court
under this Act, except for decisions made under portfolio legislation of the
Minister for Immigration and Ethnic Affairs, where the Federal Court will retain
exclusive jurisdiction under this Act.
Item
15-66
The amendments made by these items give
the Federal Magistrates Court the same powers as the Federal Court in dealing
with applications made under this Act.
Item
71
This clause provides that any Regulations
made under subsection 19(1) have effect as if they include a reference to the
Federal Magistrates Court.
Schedule 5 -
Amendment of Archives Act 1983
These amendments
are consequential upon the Federal Magistrates Court being able to hear appeals
from the Administrative Appeals Tribunal. They are consistent with the existing
provisions which apply to the Federal
Court.
Schedule 6 - Amendment of Australian
Citizenship Act 1948
These amendments, made to
subsection 15(2), will ensure that pledges of commitment will be able to be
taken before Federal Magistrates as well as Judges of other federal
courts.
Schedule 7 - Amendment of Bankruptcy Act
1966
Items 1-4 and
6-7
These amendments ensure that the Federal
Magistrates Court has the same jurisdiction and powers as the Federal Court
under this Act.
Item
5
This item amends subsection 30(3), to ensure
that it is only in the Federal Court that the Court can direct that a question
of fact be tried by jury in proceedings under this Act. This amendment is
required since the Federal Magistrates Court will not have any juries in civil
proceedings.
Schedule 8 - Amendment
of Child Support (Assessment) Act 1989
Items
1-5, 7-8, 13-19
The amendments made by these
items are necessary as a result of the changed use of the term “Rules of
Court”, and are consistent with the amendments relating to the Rules of
Court made to the Family Law Act 1975 by Schedule
11.
The amendments made by these items are
necessary as a result of the fact that the Federal Magistrates Court will have
its own Rules in relation to family law and child support proceedings, whereas
other courts exercising such jurisdiction follow the Rules of Court made by the
Family Court.
The amendments made by these items
are intended to make clear that, in proceedings before the Federal Magistrates
Court, its own Rules of Court will apply.
To allow
for this, it has been necessary to use the term “applicable Rules of
Court” instead of simply the former term used of “Rules of
Court” in the Act, so that, in relation to the Federal Magistrates Court,
the applicable Rules of Court will mean the related Federal Magistrates Rules,
and, in relation to other courts, this term means the Rules of Court made by the
Family Court, defined as the “standard Rules of
Court”.
Item
6
This item amends subsection 99(1), to give
the Federal Magistrates Court the same jurisdiction as the Family Court under
this Act.
Items
9-11
These items make amendments to deal with
appeals from the Federal Magistrates Court to the Family Court, and are
consistent with the provisions in the amendments to the Family Law Act
1975 in Schedule 11, explained below. However, leave to appeal from a
decision of the Federal Magistrates Court made under this Act will be needed, in
the same way as it is presently needed in appeals from decisions made by other
courts under this Act.
Item 11 inserts section
102A, to deal with appeals from decisions of the Federal Magistrates Court to
the Family Court, in relation to proceedings under this
Act.
Subsection 102A(1) provides that an appeal
lies from a decision of the Federal Magistrates Court to the Family Court under
this Act, with the leave of the Family Court.
Subsection 102A(2) provides that the jurisdiction
of the Family Court in appeals from the Federal Magistrates Court is to be
exercised by the Full Court, unless the Chief Justice considers it is
appropriate for such jurisdiction to be exercised by a single Judge. Hence, the
presumption is that such appeals will be dealt with by a Full Court, but if the
Chief Justice determines that a particular appeal may be dealt with by a single
Judge, then it will be dealt with by a single Judge. This encompasses both the
determination of the appeal and any orders made in the appeal proceeding, of an
interlocutory or interim nature.
Subsection
102A(3) makes it clear that subsection 102A(2) has effect subject to subsections
(6) and (8), so that single Judges may exercise the powers set out under
subsections (6) and (8) in an appeal from the Federal Magistrates Court,
regardless of whether the Chief Justice has made a determination that such
appeal be heard by a single Judge.
Subsections
102A(6) and (8) give single Judges as well as the Full Court the power to make
certain types of orders and hear certain types of matters in appeals from the
Federal Magistrates Court. A single Judge has the power to make such orders or
hear such matters in any such appeal, regardless of whether the Chief Justice
has decided that a particular appeal is to be heard by a single Judge or not.
Under subsection 102A(10), an appeal does not lie
to the Full Court from a decision of a single Judge exercising jurisdiction in
an appeal from the decision of the Federal Magistrates Court. This includes any
interlocutory or interim orders made by a single Judge exercising jurisdiction
under this section.
Subsection 102A(11) makes it
clear that if a single Judge is to exercise the appellate jurisdiction of the
Family Court under subsections 102A(2), (6) or (8) in relation to an appeal from
the Federal Magistrates Court, this may be any Judge of the Court, who need not
be a member of the Appeal Division.
Item 12
This item amends section 103, to allow a case
to be stated by a Federal Magistrate to the Full Court of the Family Court, in
the same circumstances as a Judge of the Family Court can state a case to the
Full Court of the Family Court.
Schedule 9 -
Amendment of Child Support (Registration and Collection) Act
1988
Items 1-5, 7-8,
13
The amendments made by these items are
necessary as a result of the changed use of the term “Rules of
Court”, and are consistent with the amendments relating to the Rules of
Court made to the Family Law Act 1975 by Schedule
11.
The amendments made by these items are
necessary as a result of the fact that the Federal Magistrates Court will have
its own Rules in relation to family law and child support proceedings, whereas
other courts exercising such jurisdiction follow the Rules of Court made by the
Family Court.
The amendments made by these items
are intended to make clear that, in family law proceedings before the Federal
Magistrates Court, its own Rules of Court will apply.
To allow for this, it has been necessary to use the
term “applicable Rules of Court” instead of simply the former term
used of “Rules of Court” in the Act, so that, in relation to the
Federal Magistrates Court, the applicable Rules of Court will mean the related
Federal Magistrates Rules, and, in relation to other courts, this term means the
Rules of Court made by the Family Court, defined as the “standard Rules of
Court”.
Item
6
This item amends subsection 104(1), to give
the Federal Magistrates Court the same jurisdiction as the Family Court under
this Act.
Items
9-11
These items make amendments to deal with
appeals from the Federal Magistrates Court to the Family Court, and are
consistent with the provisions in the amendments to the Family Law Act
1975 in Schedule 11, explained below. However, leave to appeal from a
decision of the Federal Magistrates Court made under this Act will be needed, in
the same way as it is presently needed in appeals from decisions made by other
courts under this Act.
Item 11 inserts section
107A, to deal with appeals from decisions of the Federal Magistrates Court to
the Family Court, in relation to proceedings under this
Act.
Subsection 107A(1) provides that an appeal
lies from a decision of the Federal Magistrates Court to the Family Court under
this Act, with the leave of the Family Court.
Subsection 107A(2) provides that the jurisdiction
of the Family Court in appeals from the Federal Magistrates Court is to be
exercised by the Full Court, unless the Chief Justice considers it is
appropriate for such jurisdiction to be exercised by a single Judge. Hence, the
presumption is that such appeals will be dealt with by a Full Court, but if the
Chief Justice determines that a particular appeal may be dealt with by a single
Judge, then it will be dealt with by a single Judge. This encompasses both the
determination of the appeal and any orders made in the appeal proceeding, of an
interlocutory or interim nature.
Subsection
107A(3) makes it clear that subsection 107A(2) has effect subject to subsections
(6) and (8), so that single Judges may exercise the powers set out under
subsections (6) and (8) in an appeal from the Federal Magistrates Court,
regardless of whether the Chief Justice has made a determination that such
appeal be heard by a single Judge.
Subsections
107A(6) and (8) give single Judges as well as the Full Court the power to make
certain types of orders and hear certain types of matters in appeals from the
Federal Magistrates Court. A single Judge has the power to make such orders or
hear such matters in any such appeal, regardless of whether the Chief Justice
has decided that a particular appeal is to be heard by a single Judge or not.
Under subsection 107A(10), an appeal does not lie
to the Full Court from a decision of a single Judge exercising jurisdiction in
an appeal from the decision of the Federal Magistrates Court. This includes any
interlocutory or interim orders made by a single Judge exercising jurisdiction
under this section.
Subsection 107A(11) makes it
clear that if a single Judge is to exercise the appellate jurisdiction of the
Family Court under subsections 107A(2), (6) or (8) in relation to an appeal from
the Federal Magistrates Court, this may be any Judge of the Court, who need not
be a member of the Appeal Division.
Item
12
These items amend section 108, to allow a
case to be stated by a Federal Magistrate to the Full Court of the Family Court,
in the same circumstances as a Judge of the Family Court can state a case to the
Full Court of the Family Court.
Schedule 10
- Amendment of Crimes (Superannuation Benefits) Act
1989
These amendments will ensure that Federal
Magistrates are treated in the same manner as Judges of other federal courts for
the purposes of this Act.
Schedule 11 -
Amendment of Family Law Act 1975
Items 1, 3,
7, 8, 9, 11, 14, 15, 17, 18, 20-24, 26-31, 35, 37-40, 45-46, 48-61, 64-72, 75,
79, 81, 88-90, 93, 95-103, 106
These amendments
are consequential upon the change in the use of the term “Rules of
Court”, which has been changed to “applicable Rules of Court”
or “standard Rules of Court” (as the case may be, as required in
individual provisions). This is explained below in Items 2, 4 and 5, and is
designed to ensure that the appropriate term is used in the relevant
provisions.
Items 2, 4 and
5
The amendments made by these items are
necessary as a result of the fact that the Federal Magistrates Court will have
its own Rules relating to family law proceedings, whereas other courts
exercising family law jurisdiction follow the Rules of Court made by the Family
Court.
The amendments made by these items are
intended to make clear that, in family law proceedings before the Federal
Magistrates Court, its own Rules of Court will apply.
To allow for this, it has been necessary to use the
term “applicable Rules of Court” instead of simply the former term
used of “Rules of Court” in the Act, so that, in relation to the
Federal Magistrates Court, the applicable Rules of Court will mean the related
Federal Magistrates Rules, and, in relation to other courts, this term means the
Rules of Court made by the Family Court, defined as the “standard Rules of
Court”.
Item
6
This item amends the definition of
“this Act” in subsection 4(1), by removing the reference to
“Rules of Court” from the definition, for the reasons outlined
above. Where the term “this Act” is used in the Act, and an
additional reference to either the “applicable Rules of Court” or
the “standard Rules of Court” is necessary, it has been inserted in
each particular provision.
Item
10
This item adds subsection 4(3), to put
beyond doubt that a reference to jurisdiction, proceedings or orders made under
the standard Rules of Court or the related Federal Magistrates Rules is taken to
be jurisdiction, proceedings or orders under this Act. This amendment is
consequential upon the removal of the reference to “Rules of Court”
from the definition of “this
Act”.
Item
12
The amendment made by this item to section
14B ensures that Federal Magistrates are subject to the same duties as judicial
officers of other courts exercising jurisdiction under this Act in Division 2 of
Part III of the Act.
Item 13
This item inserts section 15A, allowing a
party to a marriage or a party to proceedings in the Federal Magistrates Court
to ask a designated officer of the Federal Magistrates Court for the assistance
of a family and child counsellor. A designated officer of the Court will then,
as far as practicable, arrange for the relevant persons to be interviewed by a
family and child counsellor for the purposes set out in subsection 2.
Item 16
This
item inserts section 19AAA, allowing parents or adoptive parents of a child, a
child, a party to a marriage or a party to proceedings in the Federal
Magistrates Court to ask a designated officer of the Federal Magistrates Court
for the help of a family and child mediator in settling a dispute to which the
person is a party.
Item 19
This item inserts section 19BAA, which gives
the Federal Magistrates Court the power to refer parties to proceedings to
mediation, where the parties consent. A designated officer of the Federal
Magistrates Court will then arrange for a family or child mediator to mediate
the matters in dispute.
Item 25
This item inserts sections 33A, 33B and
33C.
Subsection 33A(1) provides that proceedings
are not to be instituted in the Family Court in respect of a matter if the
Federal Magistrates Court has jurisdiction in that matter and proceedings in
respect of an associated matter are pending in the Federal Magistrates Court.
This is designed to ensure that proceedings dealing with related issues are not
split between different federal courts.
Subsection
33A(2) provides that this section does not apply to enforcement proceedings
under Division 13A of Part VII or Part XIIIA. This ensures that proceedings for
enforcement of Federal Magistrates Court final orders may still be instituted in
the Family Court even if there is an associated matter pending in the Federal
Magistrates Court. This recognises the nature of family law proceedings, where
one matter may be completed and another matter still pending. It could be
argued that in all family law cases that any proceedings relating to a
particular marriage are associated matters. However, as the first matter is
completed, proceedings for enforcement should be available in the Family Court,
subject always to the discretion of each court to transfer proceedings to the
other court, if this is appropriate.
Subsection
33A(3) still allows associated proceedings, if issued inadvertently in the
Family Court, to be transferred to the Federal Magistrates Court, and the
proceedings will be deemed to have been validly commenced (also see subsection
33B(9)).
Section 33B gives the Family
Court the power to transfer proceedings to the Federal Magistrates Court, either
on its own initiative or on the application of a party. The Family Court may
make Rules of Court about such transfers, but must consult with the Federal
Magistrates Court before making any such Rules. Subsection 33B(8) provides that
no appeal lies from such a transfer decision.
Section 33C allows regulations to be made which
mandate the transfer of specified kinds of proceedings from the Family Court to
the Federal Magistrates Court. Such regulations must be tabled in each House of
Parliament, which can then pass a resultion disallowing them within 15 sitting
days of tabling. Any such regulations do not come into effect until their
disallowance period has expired. This regime is based upon that in section 7 of
the Remuneration Tribunal Act 1973.
Item
32
This item inserts subsection 39(1A), to
give the Federal Magistrates Court jurisdiction in relation to all matrimonial
causes (as defined in subsection 4(1)), other than proceedings for a decree of
nullity of marriage, and proceedings for a declaration as to the validity of a
marriage or of the dissolution or annulment of a marriage.
Item 33
This
item inserts subsection 39(5A), to give the Federal Magistrates Court
jurisdiction in relation to regulations made for the purposes of section 109
(interstate enforcement of child bearing expenses), section 110 (overseas
enforcement of maintenance orders), section 111 (recovery abroad of
maintenance), section 111A (recognition and enforcement of decisions relating to
maintenance obligations), section 111B (international child abduction),
regulations made for the purposes of paragraphs 125(1)(f) or (g) (recovery of
child maintenance or maintenance) or section 117A (reparation for losses and
expenses relating to children).
Item
34
This item amends paragraph 39(6)(d), to
allow courts of summary jurisdiction to deal with proceedings instituted in
respect of matters under which the Federal Magistrates Court has made Rules of
Court under paragraph 89(1)(j) of the Federal Magistrates Bill. This is the
equivalent rule-making power to that under s123(1)(r), concerning attachment of
moneys.
Item 36
This item inserts section 40A, to ensure that
the Federal Magistrates Court can only exercise jurisdiction in the same States
and Territories as the Family Court can. This is designed to ensure that, if
States or Territories set up their own family courts, any restriction on the
exercise of family law jurisdiction by the Family Court will extend to the
Federal Magistrates Court.
Item 41
This item amends subsection 45(2), to ensure
that the specific transfer provisions governing transfers between the Federal
Magistrates Court and the Family Court will apply to the transfer of proceedings
between these courts, rather than the more general provisions of section
45.
Item 42
This item inserts section 45A, which provides
that if proceedings in the Federal Magistrates Court relate to property the
total value of which exceeds $300,000 (or such other amount as is prescribed),
then, unless the parties consent to the Federal Magistrates Court hearing the
proceeding, the Federal Magistrates Court must transfer the proceeding to the
Family Court. Subsection 5 makes clear that the value of the property is the
gross value of such property, so that any value of any security over the
property is excluded.
Item 43
This item amends subsection 46(1) to make
clear that, in accordance with existing judicial interpretation (see In the
marriage of Reid and Reid [1982] FLC 91-211), the value of property referred
to in this section means the total value of the property the subject of the
proceedings, not the value of each individual item of property the subject of
the proceedings. This amendment is made so that it is beyond doubt that the
meaning of “property” in section 45A is the same as that in section
46.
Item
44
This item inserts a Registrar of the Federal
Magistrates Court into the definition of “member of the Court
personnel” in subsection 60D(1), to ensure that such Registrars are
subject to the same obligations under Part VII as other defined court officers
and staff.
Item 47
This item inserts section 62CA, allowing a
party to proceedings, a person representing a child under section 68L, the
parent of a child or a child to ask a designated officer of the Federal
Magistrates Court for the assistance of a family and child counsellor. Upon
such a request being made, a designated officer of the Federal Magistrates Court
must, as far as practicable, arrange for the relevant persons to be interviewed
by a family and child counsellor.
Item 62
This item inserts subsection 69H(4), to give
the Federal Magistrates Court jurisdiction under Part VII (being the Part which
deals with children), with the exclusion of applications under section 60G
(dealing with leave for adoption of a child).
Item 63
This
item inserts section 69MA, which provides that the Federal Magistrates Court can
only hear contested residence proceedings if the parties consent to the Court
hearing the proceeding. If the parties do not so consent, the Federal
Magistrates Court must transfer the proceeding to the Family Court. Subsection
6 allows a Proclamation to be made, so that after the Proclamation date, the
Federal Magistrates Court would be able to hear any residence matter, whether or
not the parties consented to this. However, any such Proclamation would have to
be made within 4 years of the date upon which proceedings could first be
instituted in the Federal Magistrates Court (being the commencment of the
exercise of the Court’s jurisdiction under this Act).
Items 73, 74, 76, 77,
78
These items make amendments to deal with
appeals to the Family Court from decisions of the Federal Magistrates Court, in
relation to family law proceedings.
Item 73 amends
subsection 93A(1), to include appeals from the Federal Magistrates Court in the
types of appeals which the Family Court can
hear.
Item 74 amends subsection 94(1), to make
clear that a right of appeal to the Full Court of the Family Court is subject to
the provisions of section 94AAA, which deals with appeals from the Federal
Magistrates Court to the Family Court.
Item 76
inserts section 94AAA, to deal with appeals from decisions of the Federal
Magistrates Court to the Family Court, in family law
proceedings.
Subsection 94AAA(1) provides that an
appeal lies from a decision of the Federal Magistrates Court to the Family Court
under this Act. Subsection 94AAA(2) makes clear that such a right of appeal is
subject to s94AA (which deals with the circumstances in which leave to appeal is
needed).
Subsection 94AAA(3) provides that the
jurisdiction of the Family Court in appeals from the Federal Magistrates Court
is to be exercised by the Full Court, unless the Chief Justice considers it is
appropriate for such jurisdiction to be exercised by a single Judge. Hence, the
presumption is that such appeals will be dealt with by a Full Court, but if the
Chief Justice determines that a particular appeal may be dealt with by a single
Judge, then it will be dealt with by a single Judge. This encompasses both the
determination of the appeal and any orders made in the appeal proceeding, of an
interlocutory or interim nature.
Subsection
94AAA(4) makes it clear that subsection 94AAA(3) has effect subject to
subsections (7) and (9), so that single Judges may exercise the powers set out
under subsections (7) and (9) in an appeal from the Federal Magistrates Court,
regardless of whether the Chief Justice has made a determination that such
appeal be heard by a single Judge.
Subsections
94AAA(7) and (9) give single Judges as well as the Full Court the power to make
certain types of orders and hear certain types of matters in appeals from the
Federal Magistrates Court. A single Judge has the power to make such orders or
hear such matters in any such appeal, regardless of whether the Chief Justice
has decided that a particular appeal is to be heard by a single Judge or not.
Under subsection 94AAA(11), an appeal does not lie
to the Full Court from a decision of a single Judge exercising jurisdiction in
an appeal from the decision of the Federal Magistrates Court. This includes any
interlocutory or interim orders made by a single Judge exercising jurisdiction
under this section.
Subsection 94AAA(12) makes it
clear that if a single Judge is to exercise the appellate jurisdiction of the
Family Court under subsections 94AAA(3), (7) or (9) in relation to an appeal
from the Federal Magistrates Court, this may be any Judge of the Court, who need
not be a member of the Appeal Division.
Item
77
This item amends subsection 94AA(1), to
exclude appeals from the Federal Magistrates Court from the application of that
subsection. Item 78 deals with such
appeals.
Item
78
This item amends section 94AA, to provide
that, in order to appeal from a prescribed decision of the Federal Magistrates
Court, the leave of the Family Court is needed. This leave can either be given
by a single Judge or by the Full Court.
Item
80
This item inserts subsections 94A(3) and
(4), to allow the Federal Magistrates Court to refer a question of law arising
in proceedings before it to the Full Court of the Family
Court.
Items 82-
85
This item amends section 97, to ensure that
the Federal Magistrates Court is subject to this section, relating to matters of
procedure.
Items
86-87
These items amend section 98, to ensure
that it does not apply to proceedings in the Federal Magistrates Court. The
Federal Magistrates Bill contains provisions about the giving of evidence which
will instead apply in family law proceedings in the Federal Magistrates
Court.
Item
91
This item adds a note to subsection 105(1),
to provide orders of the Family Court being enforced by the Federal Magistrates
Court as an example of decrees made under the Act being able to be enforced in
any court having jurisdiction under the
Act.
Item
92
This item inserts section 109B, to give the
Federal Magistrates Court the same rule-making power as the Family Court has
under section 109A, relating to enforcement of
judgments.
Item
94
This item inserts subsection 115(11), to
allow Federal Magistrates to be appointed to the Family Law
Council.
Items
104-105
These items amend section 123 to
make it clear that Rules of Court made by the Family Court will not bind the
Federal Magistrates Court.
Schedule 12 -
Amendment of Federal Court of Australia Act
1976
Items 1-3
These items make amendments to deal with
appeals to the Federal Court from decisions of the Federal Magistrates Court.
Item 1 amends subsection 24(1), to include appeals
from the Federal Magistrates Court in the types of appeals which the Federal
Court can hear, other than in relation to proceedings under the Family Law
Act 1975, the Child Support (Assessment) Act 1989, the Child
Support (Registration and Collection) Act 1988 or proceedings under
regulations made under those Acts. Appeals relating to those Acts are heard by
the Family Court.
Item 2 inserts subsection
24(1AAA), to provide that an appeal cannot be brought in the Federal Court from
a judgment of a single Judge exercising the appellate jurisdiction of the
Federal Court in relation to an appeal from the Federal Magistrates Court. This
is consistent with the judicial interpretation of the exercise of appellate
jurisdiction by a single Judge under section 25 of the Act, where no such
appeals are possible (see Thomas Borthwick & Sons (Pacific Holdings) Ltd
v Trade Practices Commission (1988) 79 171 and Wati v Minister for
Immigration and Multicultural Affairs (1997) 148 ALR 578), and applies to
both interlocutory and final decisions in such
appeals.
Item 3 inserts subsection 25(1A), which
expands the circumstances in which a single Judge may exercise the appellate
jurisdiction of the Federal Court. Subsection 25(1A) provides that the
appellate jurisdiction of the Federal Court in relation to an appeal from the
Federal Magistrates Court must be exercised by the Full Court, unless the Chief
Justice considers it is appropriate for such appellate jurisdiction to be
exercised by a single Judge. Hence, the presumption is that such appeals will
be dealt with by a Full Court, but if the Chief Justice determines that a
particular appeal may be dealt with by a single Judge, then it will be dealt
with by a single Judge. This encompasses both the determination of the appeal
and any other orders made in the appeal proceeding, of an interlocutory or
interim nature.
Item 3 also inserts subsection
25(1B), to make it clear that subsection 25(1A) has effect subject to
subsections 25(2) and (2B), so that subsection 25(1A) is not intended to limit
the powers that a single Judge may exercise under subsections 25(2) and (2B).
In other words, a single Judge has the power to make such orders or hear such
matters in any such appeal, regardless of whether the Chief Justice has decided
that a particular appeal from the Federal Magistrates Court is to be heard by a
single Judge or not.
Item 4
This item inserts subsection 28(6), to
allow the appellate Court to give reasons in short form if the Court is of the
opinion that the appeal does not raise any question of general principle.
Item 5
This
item amends paragraph 29(1)(a) to ensure that the Federal Court has the power to
grant a stay of a decision of the Federal Magistrates Court, where such decision
is the subject of an appeal to the Federal Court, but that the Federal
Magistrates Court does not have the power to grant a stay in these
circumstances.
Item 6
This item inserts sections 32AA, 32AB and
32AC.
Section 32AA provides that proceedings are
not to be instituted in the Federal Court in respect of a matter if the Federal
Magistrates Court has jurisdiction in that matter and proceedings in respect of
an associated matter are pending in the Federal Magistrates Court. This is
designed to ensure that proceedings dealing with related issues are not split
between different federal courts. Subsection 32AA(2) still allows associated
proceedings, if issued inadvertently in the Federal Court, to be transferred to
the Federal Magistrates Court, and the proceedings will be deemed to have been
validly commenced (also see subsection 32AB(9)).
Section 32AB gives the Federal Court the
power to transfer proceedings to the Federal Magistrates Court, either on its
own initiative or on the application of a party. The Federal Court may make
Rules of Court about such transfers, but must consult with the Federal
Magistrates Court before doing so. Subsection 32AB(8) provides that no appeal
lies from a transfer decision.
Section 32AC
allows regulations to be made which mandate the transfer of specified kinds of
proceedings from the Federal Court to the Federal Magistrates Court. Such
regulations must be tabled in each House of Parliament, which can then pass a
resultion disallowing them within 15 sitting days of tabling. Any such
regulations do not come into effect until their disallowance period has expired.
This regime is based upon that in section 7 of the Remuneration Tribunal Act
1973.
Items 7 and
8
These items amend section 33, to make it
clear that, where a single Judge (exercising the appellate jurisdiction of the
Federal Court) makes any orders in an appeal from a judgment of the Federal
Magistrates Court, an appeal can be brought to the High Court, with the special
leave of the High Court. This amendment is necessary, since such orders will
not be able to be appealed to the Full Court of the Federal
Court.
Items 9 and 10
These items increase the penalty for the
offences under section 58 to a maximum of six months. Six months has been
specified as the penalty for the equivalent offence in the Federal Magistrates
Bill, as an appropriate contemporary penalty for such an offence. Hence, the
penalty in section 58 has also been increased to six months, since it would be
incongruous to have a greater penalty in the Federal Magistrates Court than in
the Federal Court for the equivalent
offence.
Schedule 13 - Amendment of Federal
Proceedings (Costs) Act 1981
These amendments
ensure that costs certificates can be granted for proceedings in the Federal
Magistrates Court in the same circumstances as in proceedings in other federal
courts.
Schedule 14 - Amendment of Foreign
Evidence Act 1994
These amendments ensure that
the Family Court and the Federal Court can make orders allowing evidence to be
taken from a person outside Australia, in relation to a proceeding in the
Federal Magistrates Court.
Schedule 15 - Amendment of Freedom
of Information Act 1982
These amendments are
consequential upon the Federal Magistrates Court being able to hear appeals from
the Administrative Appeals Tribunal. They are consistent with the existing
provisions which apply to the Federal
Court.
Schedule 16 - Amendment of Human Rights
and Equal Opportunity Commission Act 1986
When
the Human Rights Legislation Amendment Act (No. 1) 1999 commences, these
provisions will give the Federal Magistrates Service the same jurisdiction as
the Federal Court will be able to exercise under this
Act.
Items 1-4,
14-21
These items make amendments consequential
on the fact that applications will be able to be made regarding alleged unlawful
discrimination to both the Federal Court and the Federal Magistrates
Court.
Item
5
This item amends subsection 46PO(1) to give
the Federal Magistrates Court the same jurisdiction as the Federal Court in
relation to alleged unlawful discrimination
complaints.
Item
6
This item amends the note at the end of
subsection 46PO(1) to make it clear that the reference to representative
proceedings applies only to the Federal Court. It will not be possible to
institute representative proceedings in the Federal Magistrates
Court.
Items
7-13
The amendments made by these items ensure
that the Federal Magistrates Court has the same powers as the Federal Court in
dealing with complaints of alleged unlawful
discrimination.
Item
22
This item amends section 49B, to give the
Federal Magistrates Service the same jurisdiction as the Federal Court in
respect to civil matters arising under Part IIB (redress for unlawful
discrimination) or Part IIC (referral of discriminatory awards and
determinations to other bodies).
Item
23
This item amends subsection 49C(2), to give
the Federal Magistrates Service the same jurisdiction as the Federal Court in
respect to applications for compensation for an acquisition of property, where
the application of any of the provisions of the Act has resulted in such an
acquisition other than on just terms.
Schedule
17 - Amendment of Judges (Long Leave Payments) Act
1979
This amendment ensures that Federal
Magistrates are not covered by this
Act.
Schedule 18 - Amendment of Judges’
Pensions Act 1968
This amendment ensures that
Federal Magistrates will not be entitled to a Judge’s pension under this
Act.
Schedule 19 - Amendment of National Crime
Authority Act 1984
These amendments are
consequential upon applications under the Administrative Decisions (Judicial
Review) Act 1976 being able to be made to the Federal Magistrates Court as
well as the Federal Court. They are consistent with the provisions which apply
to the Federal Court.
Schedule 20 - Amendment of
Ombudsman Act 1976
These amendments ensure that
the Federal Magistrates Court and its staff will be subject to the Ombudsman
Act 1976 to the same extent as the existing federal
courts.
Schedule 21 - Amendment of Parliamentary
Contributory Superannuation Act 1948
These
amendments will ensure that Federal Magistrates are treated in the same manner
as Judges of other federal courts for the purposes of this
Act.
Schedule 22 - Amendment of Public Service
Act 1922
These amendments will ensure that
Federal Magistrates are excluded from the application of this Act, as are Judges
of other federal courts.
Schedule 23 - Amendment
of Taxation Administration Act 1953
This
amendment is consequential upon both the Federal Court and the Federal
Magistrates Court having jurisdiction under the Administrative Decisions
(Judicial Review) Act 1976. It is consistent with the provisions which
apply to the Federal Court.
Schedule 24 -
Amendment of Trade Practices Act 1974
Item
1
The amendment to section 75AS made by this
item is to ensure that it is clear that the Federal Magistrates Court does not
have jurisdiction under Part VA.
Item 2
This item inserts subsection 86(1A), to give
the Federal Magistrates Court jurisdiction under Divisions 1 & 1A of Part V,
being the consumer protection provisions.
Item
3
This item amends subsection 86(4), to make
clear that the exclusive jurisdiction of the Federal Court is subject to the
exception of the jurisdiction of the Federal Magistrates Court, as well as that
of the State and Territory courts and the High
Court.
Item
4
This item inserts section 86AA, which
provides that the Federal Magistrates Court does not have jurisdiction to award
an amount for loss or damage which exceeds $200,000 (or such other amount as is
prescribed) in proceedings under section
82.
Items 5-7
The amendments made by these items are
consequent upon both the Federal Court and the Federal Magistrates Court having
jurisdiction under the Administrative Decisions (Judicial Review) Act
1976. They are consistent with the provisions which apply to the Federal
Court.
Schedule 25 - Amendment of Workplace
Relations Act 1996
Items 1-7
These items will give the Federal Magistrates
Court concurrent jurisdiction with the Federal Court under s127 of the Act (in
its existing form or as amended).
Items 8-11
These items will give the Federal Magistrates
Court concurrent jurisdiction with the Federal Court under Part XA of the Act
(in its existing form or as amended).
Items
12-21
These items will ensure that the Federal
Magistrates Court has the same powers as the Federal Court, and that there are
the same rights of appearance, in proceedings under the Act before
it.