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Federal Magistrates Bill 1999

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1999

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

FEDERAL MAGISTRATES 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                                                                                    5

NOTES ON CLAUSES                                                                                                              6

PART 1-Introduction                                                                                                               6

PART 2-Federal Magistrates Court                                                                                       7

PART 3-Jurisdiction of the Federal Magistrates Court                                                      7

PART 4-Primary dispute resolution                                                                                    10

   Division 1-General                                                                                                             11

   Division 2-Proceedings other than family law or child support proceedings           13

PART 5-Transfer of proceedings to the Federal Court or the Family Court                 14

PART 6-Practice and procedure                                                                                          15

Division 1-General                                                                                                                16

   Division 2-Documents filed with the Federal Magistrates Court                                17

   Division 3-Conduct of proceedings                                                                                 18

   Division 4-Evidence                                                                                                           19

   Division 5-Use of video links or audio links                                                                 21

   Division 6-Orders and Judgments                                                                                    24

   Division 7-Costs                                                                                                                 25

   Division 8-Rules of Court                                                                                                 26

PART 7-Management of the Federal Magistrates Court                                                  27

   Division 1-Administration of the Federal Magistrates Court                                      27

   Division 2-Chief Executive Officer                                                                                 28

   Division 3-Registries                                                                                                          29

   Division 4-Other officers and staff                                                                                  29

   Division 5-Miscellaneous administrative matters                                                         32

PART 8-Miscellaneous                                                                                                         33

Schedule 1-Personnel provisions relating to Federal Magistrates                                 33

Schedule 2-Personnel provisions relating to the Chief Executive Officer

of the Federal Magistrates Court                                                                                          35



FEDERAL MAGISTRATES BILL 1999

GENERAL OUTLINE

The Federal Magistrates Bill will establish the Federal Magistrates Court, also to be known as the Federal Magistrates Service, as a court under Chapter III of the Constitution. 

 

The Federal Magistrates Court will be composed of Federal Magistrates, who will be justices, as required under the Constitution.  Federal Magistrates will be selected for their expertise in federal matters, including family law.   The jurisdiction to be exercised by the Federal Magistrates Service will generally be matters of a less complex nature that are currently dealt with by the Federal Court and the Family Court.  It is intended to provide a quicker, cheaper option for litigants and to ease the workload of both the Federal Court and the Family Court. 

 

The Federal Magistrates Service will be as informal as possible consistent with the discharge of judicial functions.  It will be up to the Federal Magistrates Service itself to make its own Rules, which will largely determine issues of practice and procedure.  However, the Bill includes provisions designed to assist the Federal Magistrates Service to develop procedures that are as simple and efficient as possible, aimed at reducing delay and costs to litigants.  Some examples of these are:

·                the Court will have the power to set time limits for witnesses and to limit the length of both written and oral submissions;

·                discovery and interrogatories will be permitted only if the Court considers that they are appropriate in the interests of the administration of justice;

·                if the parties consent, the Court can make a decision without an oral hearing;

·                there will be more emphasis on delivering decisions orally in appropriate cases, rather than parties having to wait for reserved judgments; and

·                there will be the power to make Rules to allow Federal Magistrates to give reasons in shortened form in appropriate cases. 

The Federal Magistrates Service will complement the Government’s initiatives aimed at encouraging people to resolve family law disputes through primary dispute resolution, rather than through litigation. 

The Federal Magistrates Service will place emphasis on using a range of means to resolve disputes.  There will be no automatic assumption that every matter will end in a contested hearing, and the use of conciliation, counselling and mediation will be strongly encouraged in appropriate cases.  Parties will be encouraged to take responsibility for resolving their dispute themselves, where this is practical.  This is more likely to result in more a enduring resolution of a dispute because the parties are more likely to accept agreed outcomes. 

 

The National Alternative Dispute Resolution Advisory Committee [1] has provided advice on use of alternative dispute resolution in the Federal Magistrates Service.  Its recommendations have been taken into account in the drafting of the Bill.

 

The Federal Magistrates Service will be able to use the existing counselling and mediation services of the Family Court and will also encourage the use of community-based counselling and mediation services, to provide as wide as possible a choice for clients.

 

The Federal Magistrates Service will be given jurisdiction by the amendments made to various Acts in the Federal Magistrates (Consequential Amendments) Bill.  In matters currently dealt with by the Federal Court, the Federal Magistrates Service will have jurisdiction to hear:

 

·                applications under the Administrative Decisions (Judicial Review) Act 1977;

 

·                appeals from the Administrative Appeals Tribunal which are transferred by the Federal Court to the Federal Magistrates Service;

 

·                matters arising under the Bankruptcy Act 1966 ;

 

·                when the Human Rights Amendment Bill 1998 (No 1) is passed by Parliament, applications under the Human Rights and Equal Opportunity Commission Act 1986;

 

·                matters arising under Divisions 1 and 1A of Part V of the Trade Practices Act 1974, being the consumer protection provisions; and

 

·                matters under s127 and Part XA of the Workplace Relations Act 1996 ;

 

The main areas of family law in which the Federal Magistrates Service will have jurisdiction are:

 

·                applications for nullity and dissolution of marriage;

·                family law property disputes where the property in dispute is worth less than $300,000, or property disputes worth more than this with the consent of the parties;

·                where the parties’ consent to a Federal Magistrate hearing the matter, parenting orders providing for the residence of a child; and

·                parenting orders providing for other matters such as contact, maintenance and specific issues, whether or not the parties consent to a Federal Magistrate hearing the matter.

The Federal Magistrates Service will also have jurisdiction under the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988 .

It is intended that the Federal Magistrates Service will use the infrastructure of the existing courts to the extent practical in order to minimise costs.  This will include the Registry services of the Family and Federal Courts wherever practical.

 

The main provisions of the Bill are set out below.

 

Part 2- Establishment of Federal Magistrates Court

 

Part 2 provides for the establishment of the Federal Magistrates Court as a federal court, which may also be known as the Federal Magistrates Service or the Federal Magistrates Court of Australia.  It is to be a court of record and a court of law and equity.

 

Part 3- Jurisdiction of Federal Magistrates Court

 

Part 3 provides that Federal Magistrates Court has such jurisdiction as is conferred on it by Parliament.  Clause 11 provides that its jurisdiction is to be exercised by a single Federal Magistrate.

 

Clause 19 provides that proceedings are not to be instituted in the Federal Magistrates Court in respect of a particular matter if proceedings in respect of an associated matter are pending in the Family Court or the Federal Court.  This is designed to ensure that separate proceedings dealing with related issues are not split between different federal courts.  Such proceedings, if issued, may still be transferred to another court (cl 19(3) & cl 39(7)).

 

Part 4- Primary Dispute Resolution

 

Division 1- General

 

“Primary dispute resolution processes” are defined in a broad manner, with the aim of ensuring that the primary dispute methods which parties might consider using to assist in resolving their disputes are not narrowly confined.

 

Obligations are imposed on the Federal Magistrates Court and legal practitioners to advise parties about primary dispute resolution processes that may help in resolving their dispute.

 

Parties who have been ordered by the Federal Court to undertake a primary dispute resolution process may apply to the Court to have a question of law determined which arises out of the proceedings.  Such an application must be accompanied by a statement by the person conducting the primary dispute resolution process to the effect that the determination of the question of law would be likely to assist parties in settling.

 

Division 2-non-family law proceedings

 

This Division allows the Federal Magistrates Court to refer non-family law proceedings to mediation or arbitration, and contains various provisions in relation to arbitration.  These provisions mirror those in the Federal Court of Australia Act 1976 .

 

Primary dispute resolution in family law matters is dealt with in the amendments to the Family Law Act 1975 in the Federal Magistrates (Consequential Amendments) Bill.

 

Part 5-Transfer of proceedings to the Federal Court or the Family Court

 

Clause 39 gives the Federal Magistrates Court power to transfer proceedings to either the Family Court or the Federal Court.   Subclause 39(8) provides that this section does not apply to proceedings of a kind specified in the regulations.

 

Clause 41 allows regulations to be made which mandate the transfer of proceedings of a kind specified in the regulations to either the Family Court or the Federal Court.   This is designed to ensure that there is some control over the types of proceedings that the Federal Magistrates Court is hearing, if it becomes apparent that it is routinely hearing cases of a difficult nature that would be more appropriately dealt with in the higher court. 

 

Part 6-Practice and procedure

 

This Part contains the fairly standard provisions which can be found legislation establishing other courts.  However, it also introduces some provisions which are innovative and are designed to assist the Federal Magistrates Service to develop procedures that are as simple and efficient as possible. 

 

Clause 42 provides that the Court must proceed without undue formality and endeavour to ensure that proceedings are not protracted.  This is based on subsection 97(3) of the Family Law Act 1975 .

 

Clause 44 allows regulations to be made dealing with who may represent parties in the Court.  This is designed to allow the possibility of authorised representatives to appear, if this is considered appropriate.

 

Under clauses 45 and 46 the leave of the Court will be needed to interrogate, to obtain discovery or to issue a subpoena, such leave to be granted only where it is appropriate in the interests of the administration of justice.

 

Part 7- Management of the Federal Magistrates Court

 

Part 7 provides for the management of the Federal Magistrates Court.  As with all other federal courts, the Federal Magistrates Court will be self-administered.  This means that direct responsibility for the management of the Court, including management of its financial affairs, is vested in the Court itself. 

 

FINANCIAL IMPACT STATEMENT

In the 1999-2000 Budget the Government provided additional funds of $27.9 million over four years to establish the Federal Magistrates Service to serve the interests of the Australian community by increasing the accessibility of justice for all Australians. 

Resourcing will be quarantined until the Federal Magistrates Service is established.

In addition to the new funding provided in the Budget, funding will be transferred from the Federal and Family Courts in recognition of the fact that the Service will be taking over some of those Courts workload.  The amount of funds to be transferred from the Federal and Family Courts is to be negotiated with those Courts and will be shown in Additional Estimates. 



NOTES ON CLAUSES

PART 1-Introduction

 

Clause 1-Short Title

 

1.      This clause formally provides for the short title of the Federal Magistrates Act.

 

Clause 2-Commencement

 

2.      Clause 2 provides for the commencement of the Act.  Subclause 2(1) provides that the Act will commence on Royal Assent.  Subclause 2(2) provides that proceedings are not to be instituted in the Federal Magistrates Court until a day fixed by Proclamation.  However, subclause 2(b) provides that the day fixed by Proclamation must be within 6 months of Royal Assent.

 

3.      The 6 month time period will allow all the necessary arrangements to be made before the Federal Magistrates Court starts to exercise jurisdiction.  For example, Rules of Court will be made dealing with court procedures and practice.  The period will also allow the Court to make arrangements with other courts or agencies for the use of existing infrastructure and the provision of administrative services.

Clause 3-Objects

 

4.      Clause 3 contains the objects of the Act.  The main object of the Act is to create a Federal Magistrates Court under Chapter III of the Constitution.  The other objects are to enable the Federal Magistrates Court to operate informally, consistent with the exercise of judicial power; to enable the Federal Magistrates Court to use streamlined procedures; and to encourage the use of a range of appropriate dispute resolution procedures.  Appropriate dispute resolution procedures include the making of a judicial decision by the court as well as primary dispute resolution processes. 

 

Clause 4-Simplified outline

 

5.      Clause 4 contains a simplified outline of the Act.

 

Clause 5-Definitions

 

6.      Clause 5 defines various terms used in the Act.  To facilitate the exercise of jurisdiction under the Family Law Act 1975 , Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988 clause 5 defines a number of terms in the same way as they are defined under the Family Law Act.  Clause 5 also includes a definition of family and child support proceedings to mean proceedings under the Family Law Act 1975 , Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988.

Clause 6-Crown to be bound

 

7.      This clause provides for the Crown to be bound in each of its capacities.

 

Clause 7-External Territories

 

8.      Clause 7 provides that the Act extends to every external Territory. 

 

PART 2-Federal Magistrates Court

 

Clause 8-Creation of Federal Magistrates Court

 

9.      Clause 8 creates the new Federal Magistrates Court.  The Court is created in accordance with the Parliament’s power to create federal courts as set out in Chapter III of the constitution.            Subclause 8(2) provides that the Court may also be known as the Federal Magistrates Service. 

 

10.    Subclause 8(3) provides that the Court is to be a court of record and is a court of law and equity.  A court of record means that decisions of the court will be recorded in writing and that the court has the power to punish for contempt of court.  A court of law and equity means that the court has the power to apply both the rules of law and the rules of equity.  The rules of equity provide rules about fairness and natural justice which supplement other rules and procedure. 

 

11.    Subclause 8(4) provides that the Court is to consist of a Chief Federal Magistrate and the other Federal Magistrates that hold office under the Act.

 

Clause 9-Personnel provisions relation to Federal Magistrates

 

12.    The provisions setting out the qualifications for appointment, terms and conditions for the Federal Magistrates are set out in Schedule 1 of the Act.

 

PART 3-Jurisdiction of the Federal Magistrates Court

 

Clause 10-Jurisdiction

 

13.    Subclause 10(1) provides for the process of conferring jurisdiction on the Court.  This Act does not vest any original jurisdiction on the Court.  The Court will have such original civil jurisdiction as is vested by other legislation, expressly or by operation of section 15C of the Acts Interpretation Act 1901

 

14     The Federal Magistrates (Consequential Amendments) Bill amends a number of Acts to vest jurisdiction in the Court.  Details of this jurisdiction is set out in the General Outline at page 2.  

 

15.    Subclause 10(2) provides that the Court will also have jurisdiction to hear appeals from tribunals and other bodies.  These appeals are strictly an exercise of original jurisdiction of the Court. 

 

16.    Subclause 10(3) ensures that the processes of the Court runs and its judgments may be enforced throughout Australia.

 

Clause 11-Exercise of jurisdiction by single Federal Magistrate

 

17.    Clause 11 provides that the jurisdiction of the Federal Magistrates Court is to be exercised by a single Federal Magistrate.  There is no provision for the Court to be constituted by a Full Court as this is not appropriate for the type of jurisdiction that will be exercised by the Court.

 

Clause 12-Arrangement of business of the Federal Magistrates Court

 

18.    Clause 12 provides that the Chief Federal Magistrate is responsible for organising the work of the court and, in consultation with the other Federal Magistrates, for deciding which Federal Magistrates will hear particular matters.

 

19.    Subclause12(4) provides that the Chief Federal Magistrate may assign a Magistrate to a particular location, subject to the approval of the Minister (subclause 12(5)).  Subclause 12(6) ensures that there is sufficient flexibility to accommodate workload and regional needs by allowing a Magistrate to perform his or her duties at other locations on a temporary basis.   

 

20.    Subclause 12(7) provides that the Chief Federal Magistrate has such other functions and powers contained in the regulations.  This will ensure that if the Chief Federal Magistrate needs additional functions or powers to effectively manage the core business of the Federal Magistrates Court those powers can be quickly made available.

 

Clause 13-Exercise of jurisdiction in open court and in Chambers

 

21.    Clause 13 provides that the jurisdiction of the Court is exercised in open court except where this or another law allows or requires the matter to be dealt with in chambers.  Unless otherwise ordered open court means that there is no restriction on members of the public attending proceedings in the Court.  Sitting in chambers means that the matter is heard in private before the Magistrate, usually in a separate room from the courtroom.

 

22.    Subclause 13(1) provides that this clause does not apply to family law and child support proceedings.  This is because section 97 of the Family Law Act 1975 applies to courts exercising jurisdiction in family law and child support proceedings.  Section 97 provides when such proceedings may be heard in open court or in chambers. 

 

23.    Subclause 13(3) specifies procedural matters that may be dealt with in chambers and allows for the Rules of Court to authorise other matters to be heard in chambers (13)(3)(c).  Subclause 13(4) provides that a matter must be heard in chambers where the Rules of Court allow a decision to be made without a hearing and the parties have consented to a decision being made without a hearing.  This provision is designed to allow matters to be decided without a hearing in appropriate cases.  In all chambers proceedings, a Federal Magistrate has the discretion to order that a particular matter should be heard in court (13(5)). 

 

24.    Subclause 13(7) provides that the Court may order the exclusion of the public or specified persons if their presence in court would be contrary to the interest of justice or prejudicial to the security of the Commonwealth. 

 

Clause 14-Determination of matter completely and finally

 

25.    Clause 14 gives the Court the power to conclusively determine all the claims that are before the Court and to grant whatever remedies are necessary to do so.  This provision is designed to avoid multiple proceedings arising from the same dispute between the parties. 

 

Clause 15-Making of orders and issue of writs

 

26.    Clause 15 gives the court the power to make orders and issue writs, as appropriate, for matters in which it has jurisdiction.  See also clause 75 which provides that an order of the Federal Magistrates Court must be in writing or reduced to writing as soon as practicable. 

 

Clause 16-Declarations of right

 

27.    Clause 16 gives the Court the power to make binding declarations of right, even if no other relief is available to a party and also provides that proceedings may not be challenged on the ground that only a declaration is sought.  This provision is designed to make it clear that the former rule of law that declarations would not be given unless other remedies were sought, does not apply to proceedings in the Federal Magistrates Court.  This rule has also been set aside by legislation in the other federal courts and in State courts.

 

Clause 17-Contempt of court

 

28.    Clause 17 gives the Federal Magistrates Court the same contempt powers as those of the High Court.  This provision is consistent with contempt powers of the Federal and Family Courts.

 

29.    Section 112AP of the Family Law Act will also apply to a contempt of the Federal Magistrates Court in family law or child support proceedings. 

 

Clause 18-Jurisdiction in associated matters

 

30.    Clause 18 gives the Federal Magistrates Court jurisdiction to deal with all matters associated with any matter that is within the jurisdiction of the court.  The purpose of this provision is to avoid multiple proceedings by conferring jurisdiction on the Court in associated matters, which may be outside the jurisdiction of the Court, which must be disposed of at the same time as the matter before the Court so that the matter may be completely and finally determined.  This provision is based on section 32 of the Federal Court of Australia Act 1976 .

Clause 19-Proceedings not to be instituted in the Federal Magistrates Court if an associated matter is before the Federal Court or the Family Court

 

31.    Subclause 19(1) provides that proceedings must not be instituted in the Federal Magistrates Court if associated proceedings have been commenced in the superior court.  This is to ensure that matters are completed in the Court in which they commenced and that parties do not seek to have the same matter dealt with in the Federal Magistrates Court by filing similar proceedings in that court.  

 

32.    Subclause 19(2) ensures that proceedings for enforcement of Family Court orders may still be instituted in the Federal Magistrates Court even if there is an associated matter pending in the Family 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 Federal Magistrates Court.  If the nature of the associated matter in the Family Court provides a reason not to hear enforcement proceedings separately, it is open to a party to apply under Part 5 to have the proceedings transferred to the Family Court.

 

33.    Subclause 19(3) ensures that inappropriate proceedings commenced in the Federal Magistrates Court may be validly transferred to the relevant superior court.  For example, if associated proceedings are commenced in the Federal Magistrates, the Court will be able to transfer them to the Federal Court or Family Court, and the proceedings will be deemed to have been validly commenced in the superior court. 

 

34.    Part 5 of the Bill deals with the mechanism for the transfer of proceedings to the Federal Court or the Family Court.  Clauses 39(7) and 41(6) allow for proceedings commenced in contravention of subclause 19(1) to be transferred to the relevant superior court.

 

Clause 20-Appeals

 

35.    Clause 20 provides that an appeal cannot go directly from the Federal Magistrates Court to the High Court as it is not appropriate that an appeal go directly from a lower level court to the High Court.

 

36.    Appeals from the Federal Magistrates Court will go to the relevant superior court, the Federal Court or the Family Court.  The Federal Magistrates (Consequential Amendments) Bill amends the Federal Court of Australia Act, the Family Law Act and child support legislation to provide for appeals from the Federal Magistrates Court.  An appeal from the Federal Court or Family Court may be made to the High Court only by special leave of the High Court.

 

PART 4-Primary dispute resolution

 

37.    Part 4 provides for the use of primary dispute resolution process.  The Federal Magistrates Court will encourage the use of primary dispute resolution processes to resolve disputes.  

Division 1-General

Clause 21-Primary Dispute resolution processes

38.    Clause 21 provides a definition of primary dispute resolution processes which are defined to include a range of facilitative, advisory and determinative processes.  Mediation and conciliation are facilitative processes; case appraisal and counselling are advisory processes and arbitration and neutral evaluation are determinative processes. 

 

39.    The National Alternative Dispute Resolution Advisory Council (NADRAC) defines these terms as follows [2] :

 

Counselling is a process in which a third party investigates the dispute and provides the parties or a party to the dispute with advice regarding the issues which should be considered, possible, probable and desirable outcomes and the means whereby these may be achieved.

 

Mediation is a process in which the parties to a dispute, with the assistance of a neutral third party (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or the outcome of its resolution, but may advise on or determine the process of mediation whereby resolution is attempted.

 

Arbitration is a process in which the parties to a dispute present arguments and evidence to a neutral third party (the arbitrator) who makes a

determination.

 

Neutral evaluation is a process in which the parties to a dispute present, at an early stage in attempting to resolve the dispute, arguments and evidence to a neutral third party who makes a determination as to the key issues in dispute, and most effective means whereby the dispute may be resolved, without making any determination as to the facts of the dispute.

 

Case appraisal is a process in which a third party (the case appraiser)investigates the dispute and provides advice regarding possible, probable and desirable outcomes and the means whereby these may be achieved.

Conciliation is a process in which the parties to a dispute, with the assistance of a neutral third party (the conciliator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative role. The conciliator may advise on or determine the process of conciliation whereby resolution is attempted, and may make suggestions for terms of settlement, give expert advice on likely settlement terms, and may actively encourage the participants to reach an agreement.

Clause 22-Federal Magistrates Court to consider whether to advise people to use primary dispute resolution processes

40.    Clause 22 imposes an obligation on the Federal Magistrates Court to consider advising people about primary dispute resolution processes.  This provision is based on section 14F of the Family Law Act.

Clause 23-Federal Magistrates Court to advise people to use primary dispute resolution processes

41.    Clause 23 provides that if the Federal Magistrates Court considers that a primary dispute resolution process could help the parties to resolve a dispute, the Court must advise the parties to use that dispute.  This will ensure that parties are referred to appropriate primary dispute resolution processes.

Clause 24-Duty of legal practitioners to consider whether to advise people to use primary dispute resolution processes

42.    Clause 24 imposes a similar obligation on legal practitioners to consider advising people about primary dispute resolution processes.  This provision is based on section 14D of the Family Law Act.

Clause 25-Duty of officers of the Federal Magistrates Court to advise people to use primary dispute resolution processes

43.    Clause 25 imposes a similar obligation on officers of the Federal Magistrates Court to consider advising people about primary dispute resolution processes.  The duties imposed by clauses 22, 24, and 25 will ensure that parties, at all stages of their dispute, are advised of the primary dispute resolution processes available to resolve their dispute. 

Clause 26-Conciliation

44.    Clause 26 allows the Federal Magistrates Court to order conciliation in accordance with the Rules of Court.

Clause 27-Referral of question of law-primary dispute resolution process (other than arbitration)

45.    Clause 27 allows parties who have been ordered by the Federal Court to undertake a primary dispute resolution process to apply to the Court to have a question of law determined which arises out of the proceedings.  Such an application must be accompanied by a statement by the person conducting the primary dispute resolution process to the effect that the determination of the question of law would be likely to assist parties in reaching agreement about all or any matters in dispute.

 

46.    Subclause 27(3) provides that if Federal Magistrates Court determines a question of law, the determination is binding on the parties to the proceedings.



Clause 28-Rules of Court about primary dispute resolution processes

47.    Clause 28 provides that Rules of Court may be made in relation to primary dispute resolution processes ordered by the Court.

Clause 29-Regulations about primary dispute resolution processes

48.    Clause 29 provides that regulations may be made in relation to primary dispute resolution processes ordered by the Court.  The regulations may cover procedures of the primary dispute resolution process, the attendance of persons at the primary dispute resolution process and the kinds of person who may conduct primary dispute resolution processes.  For example, regulations could be made to enable the person conducting the primary dispute resolution process to exclude persons from attending primary dispute resolution processes.

Clause 30-Rules of Court about costs of primary dispute resolution processes

49.    Clause 30 provides that Rules of Court may be made about the costs of primary dispute resolution processes, where the primary dispute resolution process was ordered by the Court or was carried out for the purpose of settling a dispute before the Court.

Clause 31-Rules of Court about primary dispute resolution processes under the Family Law Act 1975

50.    Clause 31 provides that Rules of Court may be made in relation to applications under the Family Law Act for mediation and arbitration.

Clause 32-Consent orders

51.    Clause 32 provides that where parties have reached agreement about a matter in dispute in the proceedings, the Federal Magistrates Court may make an order in terms of the agreement. 

Division 2-Proceedings other than family law or child support proceedings    

52.    This Division allows the Federal Magistrates Court to refer non-family law proceedings to mediation or arbitration, and contains various provisions in relation to arbitration.  These provisions mirror those in the Federal Court Act .

 

Clause 33-Scope of Division

 

53.    Clause 33 provides that the division applies to proceedings in the Federal Magistrates Court other than family law or child support proceedings.  Primary dispute resolution in family law or child support proceedings is dealt with in the amendments to the Family Law Act in the Federal Magistrates (Consequential Amendments) Bill.

 

Clause 34-Mediation

 

54.    Clause 34 provides for the Federal Magistrates Court to refer matters to mediation.  Matters may be referred with or without the consent of the parties.  Subclause 34(4) provides the standard protection for things said in the mediation.  Subclause 34(5) provides that the mediator has the same immunity as a Federal Magistrate. 

 

Clause 35-Arbitration

 

55.    Clause 35 provides for the Federal Magistrates Court to refer matters to arbitration.  Matters may only be referred to arbitration with the consent of the parties.

 

Clause 36-Power of arbitrator to refer question of law to the Federal Magistrates Court

 

56.    Clause 36 provides for the arbitrator to refer a question of law to the Federal Magistrates Court with the leave of the Court.  The Federal Magistrates Court must only grant leave if it is satisfied that the determination of the question would result in substantial cost savings to the parties.  If leave is granted, the Federal Magistrates Court must determine the question of law.          

 

Clause 37-Review of arbitration award on a question of law etc

 

57.    Clause 37 provides for a review of an arbitration award on a question of law.  On a review the Federal Magistrates Court may determine the question of law and make such orders as it thinks fit including affirming, varying or setting the award.  Subclause 37(4) provides that a party to an arbitration award may apply to the Court for an order that costs payable by a party be taxed in accordance with the Rules of Court.

 

Clause 38-Arbitration awards

 

58.    Clause 38 provides for the Federal Magistrates Court to make an order in terms of the arbitration award, if the award has been registered with the Court under Rules of Court.  The order is then enforceable in the same manner as other orders of the Court.

 

PART 5-Transfer of proceedings to the Federal Court of the Family Court

 

59.    This part provides for the transfer of proceedings in the Federal Magistrates Court to the relevant superior court.  Proceedings may also be transferred from the Federal or Family Courts to the Federal Magistrates Court.  The provisions dealing with this type of transfer are contained in the Federal Magistrates (Consequential Amendments) Bill. 

 

Clause 39-Discretionary transfer of proceedings to the Federal Court or the Family Court

 

60.    This provision allows for transfers of proceedings to the Federal or Family Courts.  Subclauses 39 (3) and (4) specify factors that the Federal Magistrates Court must have regard to in deciding whether to transfer a proceeding, such as any relevant Rules of Court, whether the matter could be more appropriately dealt with in the superior court, the resources of the Federal Magistrates Court and the administration of justice.  These factors are designed to ensure that the Federal Magistrates Court has the ability to transfer cases for both workload and resource reasons.

 

61.    Under subclause 39(6) no appeal lies from such a decision.  This is consistent with the provisions in the cross-vesting legislation, where no appeal lies from a transfer decision, and is designed to prevent time-wasting appeals on minor procedural matters which do not affect the substantive rights of the parties.  Subclause 39(8) provides that this section does not apply to proceedings of a kind specified in the regulations.

 

Clause 40-Rules of Court about discretionary transfer of proceedings

 

62.    Clause 40 provides that before any Rules of Court are made the Federal Magistrates Court must consult the Federal or Family Court, as relevant (subclauses 40(6) and (7)).  Subclause 40(5) specifies factors that the Federal Magistrates must have regard to in making Rules of Court for transfer of proceedings, such as whether the matter could be more appropriately dealt with in the superior court, the resources of the Federal Magistrates Court and the administration of justice.

 

Clause 41-Mandatory transfer of proceedings to the Federal Court or the Family Court

 

63.    Clause 41 allows regulations to be made for mandatory transfer of proceedings to the Federal or Family Court.  This is designed to ensure that there is some control over the types of proceedings that the Federal Magistrates Court is hearing, if it becomes apparent that it is routinely hearing cases of a difficult nature that would be more appropriately dealt with in the higher court.   Under subclause 40(5) no appeal lies from such a decision, this is consistent with the mandatory nature of the transfer. 

 

64.    Regulations may also be made to provide for mandatory transfer of proceedings that have been instituted in the Federal Magistrates Court where associated proceedings have been commenced in the superior court (subclause 40(6)). 

 

65.    Subclauses 40(7)-(9) provide for the process of making regulations under this clause.  The regulations must be tabled in Parliament and may be disallowed within 15 sitting days of the regulations being tabled.  Any regulations made under this provision will not come into effect until the period for disallowance has expired.  The disallowance mechanism is based on a similar mechanism in section 7 of the Remuneration Tribunal Act 1973

 

PART 6-Practice and procedure

 

66.    This Part contains the standard practice and procedure provisions which can be found in legislation establishing other courts.  However, it also introduces some provisions which are innovative and are designed to assist the Federal Magistrates Service to develop procedures that are as simple and efficient as possible. 

 

Division 1-General

 

Clause 42-Federal Magistrates Court to operate informally

 

67.    Clause 42 provides that the Federal Magistrates Court must operate without undue formality.  This will be a key factor in the running of the new court.  Of course, in conducting proceedings the Federal Magistrates Court procedures, though informal, will be consistent with the exercise of  judicial power and accordingly will be directed at facilitating the prompt resolution of the matter in dispute.

 

Clause 43-Practice and procedure

 

68.    Clause 43 provides that the practice of the Federal Magistrates Court is to be in accordance with the Rules of Court, subject to any relevant provision under this or any Act.  Where provisions relating to practice and procedures are insufficient, the Family Court Rules of Court may be used for family and child support proceedings and the Federal Court Rules used for proceedings other than family and child support proceedings.  It is expected that the Federal Magistrates Court will make its own Rules of Court dealing with proceedings before the Court, however this provision will ensure that proceedings can be dealt with if a proceeding is filed before the Federal Magistrates Court has made relevant Rules of Court.

 

Clause 44-Representation

 

69.    Clause 44 deals with representation before the Federal Magistrates Court.  It provides that legal practitioners have the same rights to represent clients before the Federal Magistrates Court as other federal courts.  Paragraph(b) allows regulations to be made authorising persons to represent parties.  This is designed to allow, for example, members of a professional association being authorised to appear if this is considered appropriate.  Persons authorised to appear under other legislation will also be entitled to appear in the Federal Magistrates Court.

 

Clause 45-Interrogatories and discovery

 

70.    Clause 45 provides that interrogatories and discovery will only be permitted with the leave of the Federal Magistrates Court if it is appropriate in the interests of the administration of justice.  This is designed to cut down on the unnecessary use of these procedures.

 

Clause 46-Subpoenas

 

71.    Clause 46 provides that the Federal Magistrates Court may issue a subpoena on the application of a party or on its own initiative.  A subpoena will only be issued on the application of a party with the leave of the Federal Magistrates Court if it is appropriate in the interests of the administration of justice.  Again, this is designed to cut down on unnecessary issuing of subpoenas.

 



Division 2-Documents to be filed with the Federal Magistrates Court

 

Clause 47-Filing of documents in the Federal Magistrates Court

 

72.    Clause 47 provides for the filing of documents.  Documents must be filed at a registry of the Court or in accordance arrangements made with other agencies to provide services for the Court.  The Rules of Court may provide for documents to be filed by electronic means. 

 

Clause 48-Seal of the Federal Magistrates Court

 

73.    Clause 48 provides for the seal of the Federal Magistrates Court and for the Minister to determine the design of the seal.  The seal of the Court must be affixed to documents as provided for in the Act or by the Rules of Court.

 

Clause 49-Federal Magistrates Court stamps

 

74.    Clause 49 provides for Federal Magistrates Court stamps in the same design as the seal of the Court.  Subclause 49(2) provides for a stamped document to be as valid as if the document had been sealed with the seal of the Court.  This provision gives administrative flexibility to the Court to rely on stamped documents.

 

Clause 50-Writs etc.

 

75.    Clause 50 provides for the formal requirements of writs, commissions and processes of the Federal Magistrates Court.  That is they should have the seal affixed to them and be signed by a Federal Magistrate, a Registrar or authorised person.

 

76.    This requirement does not apply if the Chief Federal Magistrate has made arrangements with another Australian court for writs, commissions and processes of the Federal Magistrates Court.  For example, the Federal Magistrates Court may arrange for a registry of the Federal Court to issue writs on behalf of the Federal Magistrates Court.  In those circumstance it may not be possible to satisfy the requirements of subclause 50(1).  However, it is expected that any such arrangement would include some process of authentication.

 

77.    Subclause 50(1) does not apply to an order of the Court.  This is to ensure that if an urgent order is obtained from the Federal Magistrates Court, for example on the weekend, the order remains valid notwithstanding that it may not be affixed with the seal of the Court. 

 

Clause 51-Proceedings may be instituted by application

 

78.    Clause 51 provides that proceedings may be instituted by application, without the need for pleadings.  This clause will allow the Federal Magistrates Court to adopt a simple method of commencing proceedings in the Court. 

 

Clause 52-Limits on length of documents

 

79.    This clause ensures that the Federal Magistrates Court has the power to limit the length of documents filed in the Court.  It is important that the Federal Magistrates Court has such powers to ensure that streamlined procedures are introduced and followed in the Court. 

 

Division 3-Conduct of proceedings

 

Clause 53-Venue

 

80.    Clause 53 provides that the Federal Magistrates Court may sit at any place in Australia, and that at any stage of the proceedings the Court may direct that the hearing may be continued at a different specified place.

 

81.    It is expected that the Federal Magistrates Court will travel to hear cases in centres other than those in which Federal Magistrates are permanently based.  This clause ensures that the Federal Magistrates Court has the ability to sit anywhere in Australia.  This need not necessarily be in a formal court room.

 

82.    It is intended that the Federal Magistrates Court will be able to use video and audio conferencing facilities for remote witnesses and parties, and will be able to adapt its procedures to suit the parties and the individual case.  Division 5 of Part 6 deals with the use of video and audio links.

 

Clause 54-Determination of proceedings without a jury

 

83.    There is no right to a determination of proceedings by jury in civil matters.  This provision ensures that there will be no jury hearings in civil matters before the Federal Magistrates Court.  It is inappropriate to provide for hearing by jury in a Court which is designed to develop simple and efficient procedures.  Jury hearings are often long and complex and would not facilitate the Federal Magistrates Court adopting streamlined and informal procedures.  

Clause 55-Decisions without oral hearing

 

84.    Clause 55 allows the Federal Magistrates Court to make Rules of Court to make a decision without a hearing, if the parties have consented.  While this is a matter for the Court, it is expected that the Rules would make it clear that a decision would only be made without an oral hearing if it was clear that the issues to be decided could be adequately determined in the absence of the parties.

 

Clause 56-Limits on the length of oral argument

 

85.    Clause 56 allows the Federal Magistrates Court to limit time for oral argument.  This is another power that will ensure that the Federal Magistrates Court has the capacity to control proceedings, by introducing time limits that are consistent with the streamlined procedures of the Court.  Of course, it is a matter for the Court to determine whether it will make directions to limit oral argument.  

 

Clause 57-Written submissions

 

86.    Clause 57 allows the Federal Magistrates Court to control the use of written submissions, including limiting the length of written submissions.

 

87.    This will make it simpler for unrepresented litigants to present their case by ensuring that written submissions will as far as possible be focussed on the most important aspect of the case.

 

Clause 58-Formal defects not to invalidate

 

88.    Clause 58 provides that formal defects or irregularities do not invalidate proceedings unless the Court considers that the defect or irregularity has caused substantial injustice which cannot be remedied by an order of the Court.

 

Division 4-Evidence

 

89.    Division 4 contains provisions to facilitate the giving of evidence in proceedings before the Federal Magistrates Court.  Evidence is the means of proving facts which are in dispute.  Evidence may be given orally or in writing.  The Evidence Act 1995 contains general provisions on evidence for all federal courts.  These provisions will also apply to the Federal Magistrates Court. 

 

Clause 59-Oaths and affirmations

 

90.    Evidence in court proceedings is given on oath or affirmation, where the witness declares what he or she has said or written is the truth.  Clause 59 provides for a Federal Magistrate to administer all necessary oaths or affirmations. 

 

91.    Subclauses 59(2) & (3) provide for the Federal Magistrates Court or the Chief Executive Officer to authorise other persons or court staff to administer oaths or affirmations.  This will allow the Federal Magistrates Court to provide an effective service to its clients by ensuring that there will be sufficient authorised persons available to administer oaths or affirmations.

 

Clause 60-Swearing of affidavits etc.

 

92.    An affidavit is a written statement of evidence.  As it is document containing evidence, the affidavit must be sworn or affirmed.  Clause 60 provides for the swearing or affirming of affidavits.  It lists a number of persons before whom an affidavit may be sworn or affirmed and also provides for affidavits to be sworn outside Australia if necessary. 

 

93.    Again, this provision ensures that there will be sufficient persons available for the swearing or affirming of affidavits. 

 



Clause 61-Orders and commissions for examination of witnesses

 

94.    Clause 61 provides for the Federal Magistrates Court to order the examination of a person on oath or affirmation before the Federal Magistrates Court, a Federal Magistrate or an officer of the Court or any other person at any place within Australia.  It also allows the Court to order that commission be issued to a person for the purpose of taking evidence outside Australia.  A examination of a person could be ordered, for example, where the person was unable to attend court because they were hospital  

 

Clause 62-Prohibition of publication of evidence etc

 

95.    Clause 62 allows the Federal Magistrates Court to give directions prohibiting or restricting the publication of evidence given before the Court, or of the name of the party, or information that may identify a party.  This clause also allows the Court to prohibit access to documents obtained through discovery or by subpoena as it recognised that relevant information may be obtained through these documents.  The Court may only restrict publication if it is necessary to prevent prejudice to the administration of justice or the security of the Commonwealth. 

 

96.    Section 121 of the Family Law Act, which restricts publication of court proceedings, will apply to family law or child support proceedings. 

 

Clause 63-Time limits on giving of testimony

 

97.    Clause 63 allows the Court to limit the time for giving testimony, that is to limit the time for oral evidence given by a witness in the hearing before the Court.  It is a matter for the Court to decide whether to limit the time for oral evidence generally, or in a particular case. 

 

Clause 64-Federal Magistrates Court may question witnesses

 

98.    Clause 64 allows the Court to question witnesses, if it is likely to assist in the resolution of a matter in dispute or the expeditious and efficient conduct of the proceeding. 

 

99.    It is expected that this provision could be used by the Federal Magistrates Court where a matter is being conducted by a unrepresented litigant, so that the litigant is not denied the opportunity to present a proper case by reason of his or her inexperience with court practice and procedures.  Although this provision gives a wide discretion to Federal Magistrate, it must be exercised in accordance with the proper discharge of judicial power. 

 

Clause 65-Evidence may be given orally or by affidavit

 

100.  Clause 65 provides that evidence may be given orally or by affidavit.  Subclause 65(2) allows the Federal Magistrates Court to direct that particular testimony is to be given orally or by affidavit.  Subclause 65(3) allow for Rules of court to be made for the giving of evidence. 

 

101.  There is no presumption that evidence is to be given orally before the Federal Magistrates Court.  Consistent with the streamlined practices and procedures foreshadowed for the new Federal Magistrates Court, it is expected that the Federal Magistrates Court will make Rules which provide that evidence will primarily be given by affidavit. 

 

102.  Providing for evidence by affidavit, will be a much more efficient use of Court resources, as it will be much quicker for the Court to consider written evidence.  It will also be more convenient for witnesses to give evidence by affidavit, rather than having to appear in court for an oral examination of their evidence.  Of course it is expected that any such rules would be flexible to allow for a situation where, for any reason, providing evidence by affidavit would be difficult for a witness or a party.

 

103.  Subclause 65(4) provides that if evidence is provided by affidavit the other party has right to cross-examine the person who made the affidavit.  This ensures that parties rights to challenge such evidence is maintained.

 

Clause 66-Offences by witnesses

 

104.  Clause 66 provides for certain offences in relation to witnesses who fail to comply with the requirements of the Federal Magistrates Court.  The penalty for non-compliance is imprisonment for 6 months or a corresponding pecuniary penalty as provided for in section 4B of the Crimes Act 1914 .  These provisions are based on similar provisions in the Federal Court of Australia Act and the Family Law Act.  Subclause 66(4) provides that the Criminal Code applies to offences under this clause.  The Code provides for various elements of all offences including a physical connection (actus reus), a fault connection (mens rea) and provides for various defences. 

 

105.  The alternative remedy for failure to comply with a court order is punishment for contempt of court.  This alternative is retained by subclause 66(3).

 

Division 5-Use of video links or audio links

 

106.  Division 5 facilitates the use of video and audio technology for the taking of submissions and evidence.  It is expected that it will be common for parties to live, or have their place of business, in different towns or even different States.  Use of video links will avoid parties having to travel long distances to attend directions hearings or final hearings of their cases.  This will save individuals significant time and money.

 

107.  This division applies to the giving of testimony, appearances and making submissions by video or audio link.  The technical requirements for the use of video or audio links are set out in clause 70.

 

Clause 67-Testimony by video link or audio link

 

108.  Clause 67 allows the Federal Magistrates Court to direct that evidence may be given by video link or audio link.  Video link is defined in clause 5 to mean facilities, such as closed-circuit television, that enable audio and visual communication between persons in different places.  Audio link is similarly defined in clause 5 to mean facilities, such as telephones, that enable audio communication between persons at different places.

 

109.  Subclause 67(2) provides that any testimony must be given on oath or affidavit unless the person is in a foreign country whose laws forbid or make it inconvenient for the person to give an oath or affirmation and the Federal Magistrates Court considers that it is appropriate for testimony to be given otherwise than or oath or affirmation.  The exception to giving testimony on oath or affirmation is because in some countries it is not permissible for an oath or affirmation to be administered to a witness taking part in a foreign proceeding. 

 

110.  Subclause 67(3) provides that if testimony is not given on oath or affirmation, the Federal Magistrates Court may give the testimony such weight as it thinks fit. 

 

111.  Subclause 67(4) provides that the Federal Magistrates Court may direct testimony to be given by video or audio link, on its own initiative or on the application of a party to proceedings.

 

112.  The Federal Magistrates Court may direct the giving of testimony from any place within or outside Australia.  However, subclause 67(5) provides that this clause does not apply if the person giving testimony is in New Zealand.  The Evidence and Procedure (New Zealand) Act 1994   provides arrangements for obtaining evidence for proceedings in each country from witnesses in the other country, including arrangements for the use of video or audio links. 

 

Clause 68-Appearance of persons by video link or audio link

 

113.  Clause 68 allows the Federal Magistrates Court to direct that a person may appear before the Federal Magistrates Court by video or audio link, on its own initiative or on the application of a party to proceedings.

 

114.  Subclause 68(3) provides that this provision does not apply to a person in New Zealand.  The Evidence and Procedure (New Zealand) Act 1994   applies if the person appearing is in New Zealand. 

 

Clause 69-Making of submissions by video link or audio link

 

115.  Clause 69 allows the Federal Magistrates Court to direct that a person to make a submission by video or audio link, on its own initiative or on the application of a party to proceedings.

 

116.  Subclause 69(3) provides that this provision does not apply to a person in New Zealand.  The Evidence and Procedure (New Zealand) Act 1994   applies if the person making the submission is in New Zealand. 

 



Clause 70-Conditions for use of video links or audio links

 

117.  Clause 70 sets out the technical requirements for the use of video and audio links and provides that the Federal Magistrates Court must not direct or allow the use of video or audio links unless the technical requirements specified are satisfied.

 

118.  Subclause 70(1) sets out the requirements for video links.  The requirements are that the courtroom and the remote location are equipped with facilities that enable all eligible persons at the courtroom to see and hear the person appearing, giving testimony or making the submission, and that enable all eligible persons at the remote location to see and hear persons at the courtroom.  Subclauses 70(1)(c) and (d) allow for other conditions to be imposed by the Rules of Court and by the Federal Magistrates Court.

 

119.  Subclause 70(2) sets out the requirements that may be prescribed by Rules of Court for video links.

 

120.  Subclause 70(3) sets out the requirements for audio links.  The requirements are that the courtroom and the remote location are equipped with facilities that enable all eligible persons at the courtroom to hear the person appearing, giving testimony or making the submission, and that enable all eligible persons at the remote location to hear persons at the courtroom.  Subclauses 70(3)(c) and (d) allow for other conditions to be imposed by the Rules of Court and by the Federal Magistrates Court.

 

121.  Subclause 70(4) sets out the requirements that may be prescribed by Rules of Court for audio links.

 

Clause 71-Putting documents to a person by video link or audio link

 

122.  In general, a person cannot be questioned about a document unless the person is given a copy of the document.  The process of giving a copy of the document to the person to be questioned, is called putting a document to the person.  Clause 71 provides a mechanism for putting of documents to persons attending the hearing by video or audio link.  It provides that a document may be put to the person by causing a copy of the document to be transmitted to the court or to the remote point as necessary.

 

Clause 72-Administration of oaths and affirmations

 

123.  Clause 72 provides that oaths or affirmations required, when evidence is to be given by video or audio link, may be administered by video or audio link, or if the Federal Magistrates Court provides, by another person at the remote location.

 

Clause 73-Expenses

 

124.  Clause 73 provides for the payment of expenses incurred in the use of video or audio links.  Generally, the person who wishes to give evidence, appear or make a submission by video or audio link would be responsible for having all the necessary arrangements made and for meeting the costs.  Clause 73(1) enables the Federal Magistrates Court to order another person to pay those costs, either initially or by way of subsequent reimbursement. 

 

Clause 74-New Zealand proceedings

 

125.  Clause 74 provides that this Division does not affect the Evidence and Procedure (New Zealand) Act 1994 .   The Evidence and Procedure (New Zealand) Act 1994   provides arrangements for obtaining evidence for proceedings in Australia or New Zealand from witnesses in the other country.   

 

Division 6-Orders and judgments

 

Clause 75-Orders

 

126.  Clause 75 provides that an order of the Federal Magistrates Court must be in writing or reduced to writing as soon as practicable.  An order of the Federal Magistrates Court may be authenticated as provided for by the Rules of Court.

 

Clause 76-Reasons

127.  Clause 76 provides for that the Federal Magistrates Court may give reasons for decisions orally or in writing.  Of course in all substantive decisions the Court will give reasons for decisions.  There will be more emphasis on delivering decisions orally in appropriate cases, rather than parties having to wait for reserved judgments.  To facilitate the use of oral reasons subclause 76(2) provides the general rule that where oral reasons are given, then for the purposes any appeal, those reasons are taken to be the reasons of the Federal Magistrates Court.  Those reasons will be set out in a certified transcript. 

 

128.  Subclause 76(4) allows the Federal Magistrates Court to make Rules to allow Federal Magistrates to give short form written reasons in appropriate cases, rather than being required to set out in great detail the facts before them, their findings of fact and the application of the law to those facts.

129.  Subclause 76 makes it clear that section 25D of the Acts Interpretation Act 1901 does not apply to decisions of the Federal Magistrates Court.  Section 25D requires a body giving written reasons to set out any findings of facts and the material on which those findings were based. 

Clause 77-Reserved judgments etc

 

130.  Clause 77 provides where a judgment is reserved, and the Federal Magistrate who heard the proceeding is subsequently unavailable, orders or reasons prepared by the Federal Magistrate may be made public by another Federal Magistrate.  This will ensure that there is no delay in delivering judgments or orders if Federal Magistrate who heard the proceeding is unavailable. 

 



Clause 78-Interest up to judgment

 

131.  Clause 78 ensures that in proceedings for the recovery of money, including a debt, damages, or the value of goods, the Federal Magistrates Court will either award a lump sum in lieu of interest as part of the sum or interest on the sum from the date on which the cause of action arose until the date of judgment (subclause 78(3)).  Interest will generally not be available if the sum awarded is for compensation for future loss or damage, or for punitive damage (subclause 78(5)). 

 

132.  Subclause 78(1) provides that this clause does not apply to family law or child support proceedings.  The payment of interest on moneys ordered to be paid in these proceedings is provided for by section 117B of the Family Law Act.

 

Clause 79-Interest on judgment

 

133.  Clause 79 provides for interest to be paid on all judgment debts. The rate of interest is payable at a rate fixed by the Rules of Court or in a particular case as such lower rate as the Federal Magistrates Court determines. 

 

134.  Subclause 79(1) provides that this clause does not apply to family law or child support proceedings.  The payment of interest on moneys ordered to be paid in these proceedings is provided for by section 117B of the Family Law Act.

 

Clause 80-Enforcement of judgment

 

135.  Clause 80 provides, subject to the Rules of Court, a person with the same remedies for enforcing judgments as are allowed in similar cases in the State and Territory Supreme Courts.

 

Division 7-Costs

 

Clause 81-Costs

 

136.  Clause 81 gives the Federal Magistrates Court jurisdiction to award costs in all proceedings, except where another Act provides that costs must not be awarded.  For example, section 347 of the Workplace Relations Act 1996 provides that there shall be no award of costs in proceedings under that Act except where the proceedings have been instituted vexatiously or without reasonable cause.

 

Clause 82-Security for costs

 

137.  Clause 82 provides for the Federal Magistrates Court to order that an applicant in a proceeding to give security for the payment of costs that may be awarded against him or her.  The amount of the security is to be determined by the Federal Magistrates Court.  If the security is not provided then the proceedings may be dismissed or stayed until the security is provided. 

 



Division 8-Rules of Court

 

138.  Division 8 provides for the Rules of Court.  For ease of reference, rule making powers about similar topics have been grouped together in specific clauses.  Other provisions in the Bill also provide for relevant Rules of Court.

 

Clause 83-Rules of Court

 

139.  Clause 83 provides for the Federal Magistrates, or a majority of them, to make Rules of Court regulating the practice and procedure of the Federal Magistrates Court and prescribing matters required or permitted to be prescribed by Rules of Court.

 

140.  Subclause 83(3) provide that Rules of Court are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act.  This means that the Rules of Court must be notified in the Gazette and tabled in Parliament.  Rules of Court may be disallowed by either House of Parliament. 

 

Clause 84-Documents

 

141.  Clause 84 lists a number of particular matters for which Rules of Court may be made in relation to documents used or sought to be used in the Federal Magistrates Court.

 

Clause 85-Service

 

142.  Clause 85 lists a number matters for which Rules of Court may be made in relation to the service and execution of process of the Federal Magistrates Court. 

 

Clause 86-Evidence

 

143.  Clause 86 lists a number matters for which Rules of Court may be made in relation to evidence.

 

Clause 87-Order and judgments

 

144.  Clause 87 lists a number of matters for which Rules of Court may be made in relation to orders and judgments of the Federal Magistrates Court.

 

Clause 88-Costs

 

145.  Clause 88 lists a number of matters for which Rules of Court may be made in relation to costs, including the kinds of proceedings in which each party is to bear his or her own costs.

 



Clause 89-General

 

146.  Clause 89 lists a number of other general matters for which Rules of Court may be made in relation to proceedings in the Federal Magistrates Court.

 

Clause 90-Incidental matters

 

147.  Clause 90 provides that the Rules of Court may prescribe matters that are incidental to matters that are required or permitted to be prescribed by Rules of Court.  

 

PART 7-Management of the Federal Magistrates Court

148.  Part 7 provides for the management of the Federal Magistrates Court.  As with all other federal courts, the Federal Magistrates Court will be self-administered.  This means that direct responsibility for the management of the Court, including management of its financial affairs, is vested in the Court itself.  Part 7 also provides for a Chief Executive Officer to assist the Court in the management of its administrative affairs. 

149.  As far as possible the Federal Magistrates Service will use existing infrastructure in relation to registry services, administrative staff, building and other non-judicial resources.  Part 7 provides the mechanism for the Federal Magistrates Court to make arrangements with courts and agencies to provide these facilities and services. 

 

Division 1-Administration of the Federal Magistrates Court

 

Clause 91-Management of administrative affairs of the Federal Magistrates Court

 

150.  Clause 91 provides for the management of the Federal Magistrates Court.  In general, it provides for collegiate management, that is the Court as a whole is responsible for the management of the administrative affairs of the Court.

 

151.  While the Court is responsible for managing the administrative affairs, the Chief Federal Magistrate is responsible for certain tasks as set out in subclause 91(2).  These include managing the core business of the Court (clause 12) and making arrangements with other courts, agencies or organisation for the provision of services or sharing courtrooms or other facilities (clauses 92, 93 and 94).  This will ensure that the Chief Federal Magistrate has sufficient authority develop relationships with courts and agencies and to effectively make for sharing services and facilities. 

 

152.  Consistent with self-administration, subclause 91(3) gives the Court broad powers necessary for administering the Court, including the powers to enter contracts and acquire and dispose of personal property.  These powers are expressly limited so that the Federal Magistrates Court may not enter into contracts which involve more than $1,000,000 without the Minister’s approval.  A higher amount may be prescribed by regulation.

 

Clause 92-Arrangements with other courts

 

153.  Clause 92 allows the Chief Federal Magistrate to make arrangements with other courts for the performance of certain procedural functions on behalf of the Court and such other non-judicial functions as the Federal Magistrates Court considers appropriate.  In particular, it is expected that in most areas district registry functions would be performed by the Federal or Family Court under an agency arrangement or other agreement with those Courts.  If a function is performed in accordance with an arrangement under this clause the function will be deemed to have effect as if it had been performed by the Federal Magistrates Court.   

 

Clause 93-Arrangements with agencies or organisations

 

154.  In some locations it may not be possible for arrangements to be made with an existing court, for example because there are no appropriate court facilities or services provided in that location.  In these circumstances it is expected that the Federal Magistrates Court will make arrangements with another agency or organisation for the provision of services on behalf of the Federal Magistrates Court. 

 

Clause 94-Arrangements for sharing courtrooms and other facilities

 

155.  Clause 94 provides for the Chief Federal Magistrate to make arrangements with another court for the Federal Magistrates Court to sit in rooms of another court or to share registry facilities of another court.  

 

Clause 95-Advisory committees

 

156.  Clause 95 provides for the Federal Magistrates Court to appoint committees of Federal Magistrates and other persons to advise the Court on the exercise of powers of the Court or making Rules of Court.  The use of committees provides an opportunity for the Court to share the management tasks among the Federal Magistrates and gives all the Federal Magistrates an opportunity to the participate in the administration of the Court. 

 

Division 2-Chief Executive Officer

 

Clause 96-Chief Executive Officer

 

157.  Clause 96 provides that there is to be a Chief Executive Officer of the Federal Magistrates Court.

 

Clause 97-Personnel provisions relating to the Chief Executive Officer

 

158.  The personnel provisions for the Chief Executive Officer are contained in Schedule 2 of the Bill.

 



Clause 98-Functions of the Chief Executive Officer

 

159.  Clause 98 provides that the Chief Executive Officer is to assist the Federal Magistrates Court in the management of the administrative affairs of the Court.  Subclause 98(2) ensures that the Chief Executive Officer has the power to do all things necessary or convenient to be done to assist in the management of the Court.

 

160.  In particular, the Chief Executive Officer may act on behalf of the Federal Magistrates Court in relation to the administration of the Court and the Court may give the Chief Executive Officer directions about the exercise of his or her powers under the Act. 

 

Clause 99-Staff Powers

 

161.  Clause 99 gives the Chief Executive Officer the same power over officers and staff of the Federal Magistrates Court as a Secretary of a Department of the Public Service has over that Department.  This provision does not apply to those officers and staff who are also officers of the Federal or Family Court as the Chief Executive Officers of those Courts has the relevant staff powers for those officers and staff. 

 

Division 3-Registries

 

Clause 100-Registries

 

162.  Clause 100 provides for the Minister to establish such registries of the Federal Magistrates Court as the Minister thinks fit.  A registry is those places where current court records are maintained and where court documents are filed.   It is expected that the Minister will establish such registries as are required according to workload and regional needs.  The Minister would also be able to close registries. 

 

Division 4-Other officers and staff

 

Clause 101-Officers of the Federal Magistrates Court

 

163.  Clause 101 provides for other officers, apart from the Chief Executive Officer, of the Federal Magistrates Court.  The officers include Registrars, a Sheriff and a Marshal, and such Deputy Sheriffs and Deputy Marshals as are necessary.  These officers are to be appointed by the Chief Executive Officer, subclause 101(7). 

 

164.  Subclauses 101(2)-(5) provide that a person may be an officer of both the Federal Magistrates Court and the Federal Court or the Family Court.  This will facilitate the making of arrangements for sharing registry or other services provided by the Federal or Family Courts.

 

165.  Subclause 101(6) provides that officers of the Federal Magistrates Court have the duties, powers and functions which are given to them by the Chief Executive Officer. 

 

Clause 102-Arrangements relating to Commonwealth staff

 

166.  Clause 102 provides that the Chief Federal Magistrate may arrange with a Commonwealth Department or agency for services to be provided for the Federal Magistrates Court.

 

Clause 103-Registrars

 

167.  Clause 103 provides for the Registrars of the Federal Magistrates Court to be appointed under the Public Service Act 1922

 

Clause 104-Registrars’ powers

 

168.  Clause 104 allows certain procedural powers of the Federal Magistrates Court to be exercised by Registrars, at the direction of the Court or a Federal Magistrate.  These powers may also be delegated  to Registrars under clause 105.  These are based on similar provisions in the Federal Court of Australia Act 1976 and the Family Law Act 1975 and will ensure that Registrars of the Federal Magistrates Court can undertake these tasks, rather than Federal Magistrates.

 

169.  Subclauses 104(4) and 104(5) provide limitations on the exercise of certain powers under the Family Law Act to ensure that the powers are consistent with those conferred on Registrars under the Family Law Act.  

 

Clause 105-Delegation of powers to Registrars

 

170.  Clause 105 provides for the delegation of powers to Registrars, including those powers set out in clause 104.  Again, subclauses 105(5) and (6) limit the exercise of delegated powers under the Family Law Act to maintain consistency with that Act.

 

Clause 106-Registrars-additional provisions

 

171.  Subclause 106(1) provides that a Registrar is not subject to the direction or control of any person of body in relation to the manner in which he or she exercises power under clauses 104 or 105.  This is because the Registrar is exercising delegated judicial power and in so doing must act independently.  

 

172.  Subclause 106(2) provides for a party to apply for a review of the exercise of power by a Registrar.  The Federal Magistrates Court may also review a decision of a Registrar on its own motion (subclause 106(3)).

 

173.  Subclause 106(4) provides for a Registrar to refer a matter to a Federal Magistrate for decision, if the Registrar considers that it is not appropriate for the matters to be determined by a Registrar.  For example, if it becomes apparent that a matter is more complex than initially thought, or raises a novel question of law, the Registrar may decide to refer the matter to a Federal Magistrate for a decision.  

 

Clause 107-Registrars-oath or affirmation of office

 

174.  Clause 107 provides for an oath or affirmation of office for Registrars.

 

Clause 108-The Sheriff of the Federal Magistrates Court

 

175.  Clause 108 provides for a Sheriff of the Federal Magistrates Court and sets out the responsibilities of the Sheriff which include the service and execution of process of the Federal Magistrates Court and dealing with police forces in relation to service and execution of process.

 

Clause 109-Deputy Sheriffs

 

176.  Clause 109 provides for a Deputy Sheriff to exercise the powers of the Sheriff, subject to any directions of the Sheriff. 

 

Clause 110-Authorised persons to assist the Sheriff or Deputy Sheriffs

 

177.  Clause 110 provides for other persons to be authorised by the Sheriff or Deputy Sheriff to assist in the exercise of any powers or functions of the Sheriff. 

 

Clause 111-The Marshal of the Federal Magistrates Court

 

178.  Clause 111 provides for a Marshal of the Federal Magistrates Court and sets out the responsibilities of the Sheriff which include:

 

•        the security of the Federal Magistrates Court;

•        personal security of Federal Magistrate and officers and staff; and

•        detaining and discharging persons who are committed into custody.

 

Clause 112-Deputy Marshals

 

179.  Clause 112 provides for a Deputy Marshal to exercise the powers of the Marshal, subject to any directions of the Marshal. 

 

Clause 113-Authorised persons to assist the Marshal or Deputy Marshals

 

180.  Clause 113 provides for other persons to be authorised by the Marshal or Deputy Sheriff to assist in the exercise of any powers or functions of the Marshal. 

 

Clause 114-Staff of the Federal Magistrates Court

 

181.  Clause 114 provides for there to be such staff of the Federal Magistrates Court as are necessary and for these staff to be appointed or employed under the Public Service Act 1922

Clause 115-Actions by or against Sheriff or Marshal

 

182.  Subclause 115(1) provides for a procedure to be followed where the Sheriff or a Deputy Sheriff is a party to a proceeding in the Court.  It provides for all processes that would normally be directed to the Sheriff to be directed to a disinterested person appointed by the Federal Magistrates Court. 

 

183.  Subclause 115(2) provides a similar procedure to be followed where the Marshal or a Deputy Marshal is a party to a proceeding in the Court.

 

Clause 116-Receivers

 

184.  Clause 116 allows the Federal Magistrates Court to appoint a receiver, to receive and deal with property, as it may be necessary to do this in relation to proceedings before the Court.  The receiver is required to manage and deal with any property in accordance with the law of the State or Territory in which the property is located. 

 

Division 5-Miscellaneous administrative matters

 

Clause 117-Engagement of consultants etc.

 

185.  Clause 117 allows the Chief Executive Officer to engage consultants with suitable qualifications and experience to perform services for the Federal Magistrates Court.

 

Clause 118-Procedural information to be given to unrepresented parties

 

186.  Clause 118 allows the Chief Executive Officer to give assistance to parties, in particular unrepresented parties, by making guidelines for staff to give procedural information to assist parties to formulate and present their cases.  Procedural information is information about the processes involved in the Court and information about the progress of the matter before the Federal Magistrates Court.  Federal Magistrates Court staff will not be giving legal advice to parties.

 

Clause 119-Annual report

 

187.  Clause 119 sets out the mechanism for ensuring that the administration and finances of the Federal Magistrates Court are accountable to the Minister and Parliament.  Subclause 119(1) provides for the Chief Federal Magistrate to give the Minister a report on the management of the administrative affairs of the Court as soon as practicable at the end of the financial year.  The report must be tabled in Parliament (subclause 119(3)).

 

188.  Subclause 119(2) provides for the financial statements and an audit report to be provided in accordance with the provisions of the Financial Management and Accountability Act 1997

 



Clause 120-Proceedings arising out of administration of Federal Magistrates Court

 

189.  Clause 120 allows for proceedings to be instituted by or against the Commonwealth in relation to matters arising out of the management of the administrative affairs of the Federal Magistrates Court. 

 

PART 8-Miscellaneous

 

Clause 121-Reference in other laws of a Federal Magistrate

 

190.  Clause 121 provides that references in other Acts to a Federal Magistrate includes a reference to the Chief Federal Magistrate. 

 

Clause 122-Regulations

 

191.  Clause 122 provides for the Governor-General to make regulations prescribing matters required, necessary or convenient for the purposes of the Act.  Subclause 122(2) provides for the regulations to impose a penalty for offences against the regulations

 

192.  Subclause 122(3) allows for regulations to be made to provide for fees to be paid for proceedings or the service and execution of process of the Court. 

 

Schedule 1-Personnel provisions relating to Federal Magistrates

 

193.  Section 72 of the Constitution sets out the requirements relating to the appointment and tenure of Federal Magistrates. Some of these requirements are restated in Schedule 1. 

 

Clause 1-Appointment of Federal Magistrates

 

194.  Clause 1 provides for the appointment of Federal Magistrates for a term expiring on the attainment of 70 years of age, and allows for the appointment of part time Magistrates.  “Appointment” has been defined in such a manner, in subclause 1(7), that a change of office from part-time to full-time (and vice versa) or Federal Magistrate to Chief Federal Magistrate (or vice versa) will require a fresh appointment.

 

195.  Subclause 1(2) provides that in order to be appointed as a Federal Magistrate, a person must be enrolled as a legal practitioner for a least 5 years. 

 

Clause 2-Style

 

196.  Clause 2 provides for the style of the Chief Federal Magistrate and Federal Magistrate.  For example, if a person named Joan Margaret Ford became a Federal Magistrate she could be styled “Federal Magistrate Ford” or “Federal Magistrate Joan Ford” or “Ford Federal Magistrate”.

 



Clause 3-Oath or affirmation of office

 

197.  Clause 3 provides for the oath or affirmation of office for a Federal Magistrate, and the persons before whom the oath or affirmation may be taken.

 

Clause 4-Outside work

 

198.  Clause 4 provides that a Federal Magistrate must not engage in remunerated work which is inconsistent with the holding of judicial office.  In particular, subclause 4(1) prohibits a Federal Magistrate from practising as a legal practitioner.

 

199.  Subclause 4(3) ensures that any doctrine of constitutional incompatibility will apply to a Federal Magistrate.  For example, in Wilson   v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 138 ALR 220 the High Court held that there were certain functions that could not be conferred on a federal judicial officer.  This would be the case if the function were incompatible with the judicial officer’s performance of his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power. 

 

Clause 5-Remuneration

 

200.  Clause 5 provides that a Federal Magistrate is to be paid such remuneration is determined by the Remuneration Tribunal.  Subclause 5(3) ensures that, under the Remuneration Tribunal Act 1973 , remuneration of a Federal Magistrate will be treated as the same as a judge of a federal court.  This ensures that any remuneration determined by the Tribunal will not come into effect until after the period for disallowance has elapsed.  

 

Clause 6-Leave

 

201.  Clause 6 provides that recreation leave entitlements for a Federal Magistrate are to be determined by the Remuneration Tribunal.  Other leave entitlements will be on such terms and conditions as the Governor-General determines (clause 8).

 

Clause 7-Resignation from office

 

202.  Clause 7 provides that a Federal Magistrate may resign by delivering a signed resignation to the Governor-General. 

 

Clause 8-Other terms and conditions

 

203.  Clause 8 provides for the Governor-General to determine other terms and conditions not specified in the Act.  Any determination made by the Governor-General is a legislative instrument which must be tabled in Parliament and may be disallowed within 15 sitting days after the determination is tabled.  This disallowance mechanism is based on a similar mechanism in section 7 of the Remuneration Tribunal Act 1973

 

Clause 9-Removal from office

 

204.  Clause 9 restates the requirements for removal from office set out in Chapter III of the Constitution.  That is a Federal Magistrate can only be removed from office by the Parliament on the ground of proved misbehaviour or incapacity. 

 

Clause 10-Acting Chief Federal Magistrate

 

205.  Clause 10 provides for the Minister to appoint a Federal Magistrate to act as Chief Federal Magistrate if there is a vacancy in the office, or the Chief Federal Magistrate is absent from duty or unable to perform the duties of office.  Section 33A of the Acts Interpretation Act provides that acting appointments may not exceed 12 months.

 

Clause 11-Remuneration of a Federal Magistrate not to be diminished

 

206.  Clause 11 provides that the remuneration of a Federal Magistrate is not to be diminished during office.  This restates the prohibition on diminution of remuneration in paragraph 72(iii) of the Constitution.

 

Schedule 2-Personnel provisions relating to the Chief Executive Officer of the Federal Magistrates Court

 

Clause 1-Appointment of Chief Executive Officer

 

207.  Clause 1 provides for the appointment of a Chief Executive Officer for a period not exceeding 5 years.

 

Clause 2-Disclosure of interests

 

208.  Clause 2 requires the Chief Executive Officer to disclose to the Chief Federal Magistrate all direct or indirect pecuniary interests that he or she has in a business or a corporation. 

 

Clause 3- Outside employment

 

209.  Clause 3 prevents the Chief Executive Officer from engaging in paid outside employment without the consent of the Chief Federal Magistrate.  

 

Clause 4-Remuneration

 

210.  Clause 4 provides that the Chief Executive Officer is to be paid such remuneration as is determined by the Remuneration Tribunal.  If there is no determination in force the prescribed determination will apply.  Additional allowances may also be prescribed (subclause 4(2)).  

 



Clause 5-Leave

 

211.  Clause 5 provides that recreation leave entitlements for the Chief Executive Officer are to be determined by the Remuneration Tribunal.  Other leave entitlements will be on such terms and conditions as the Chief Federal Magistrate determines (subclause 5(2)).

 

Clause 6-Resignation

 

212.  Clause 6 provides that the Chief Executive Officer may resign by delivering a signed resignation to the Governor-General. 

 

Clause 7-Termination of appointment

 

213.  Subclause 7(1) provides that the Governor-General may terminate the appointment of the Chief Executive Officer for misbehaviour or physical or mental incapacity.  Subclause 7(2) provides that the appointment may be terminated if the Chief Executive Officer:

 

•        becomes bankrupt or insolvent; or

 

•        is absent from duty without leave of absence; or

 

•        engages in paid employment without appropriate approval; or

 

•        without reasonable excuse fails to disclose pecuniary interest in any corporation or business.

 

Clause 8-Other terms and conditions

 

214.  Clause 8 provides for the Chief Federal Magistrate to determine other terms and conditions not specified in the Act.

 

Clause 9-Acting Chief Executive Officer

 

215.  Clause 9 provides for the Minister to appoint a person to act as Chief Executive Officer if there is a vacancy in the office, or the Chief Executive Officer is absent from duty or unable to perform the duties of office.  Section 33A of the Acts Interpretation Act provides that acting appointments may not exceed 12 months

 

 

 

 

 

 

 




[1] NADRAC is an independent advisory council which provides the Attorney-General with coordinated and consistent policy advice on the development of high quality, economic and efficient ways of resolving disputes without the need for a judicial decision

[2]   In the NADRAC paper Alternative Dispute Resolution Definitions , March 1997.