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Federal Magistrates (Consequential Amendments) Bill 1999

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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)



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.