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Federal Circuit Court of Australia (Consequential Amendments) Bill 2013

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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.



 

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).

 

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 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).