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Courts Administration Legislation Amendment Bill 2015

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2013-2014-2015

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

                                                                                                                         

Courts Administration legislation amendment bill 2015

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, Senator the Honourable George Brandis QC)



 

Courts Administration Legislation Amendment Bill 2015

General Outline

       1.             The Courts Administration Legislation Amendment Bill would bring the Federal Court of Australia (Federal Court), the Family Court of Australia (Family Court) and the Federal Circuit Court of Australia (Federal Circuit Court) into a single administrative entity and make legislative provision for the courts to share corporate services. The entity would also include the National Native Title Tribunal, which is currently within the Federal Court entity.

       2.             The Bill would implement the measure announced as part of the Government’s 2015-16 Budget to merge the corporate services functions of the Federal Court with those of the Family Court and Federal Circuit Court. This measure formed part of the package of reforms aimed at streamlining and improving the financial sustainability of the federal courts.

       3.             The Bill would generate efficiencies through the establishment of shared corporate services functions for the courts to reduce unnecessary duplication, consistent with the Government’s commitment to remove inefficiencies in public administration. These savings gained from reducing the administrative burden on each of the courts as they currently stand would then be reinvested to support the core functions of the courts.

       4.             The shared corporate services would be managed by the Federal Court Chief Executive Officer and Principal Registrar (CEO), which would allow for streamlining of existing services where appropriate, with the objective of placing the courts on a sustainable funding footing.

       5.             The courts’ independence would be preserved in the Bill by maintaining their distinct statutory identities and retaining separate establishing legislation for each of the courts.

       6.             The Bill would primarily affect the courts’ administrative and corporate operations through consolidating finance, human resources, information technology, and property and operations arrangements. It would not affect the substantive rights of court users.

       7.             This Bill would amend Commonwealth Acts including the:

·          Federal Court of Australia Act 1976 (Federal Court Act)

·          Family Law Act 1975

·          Federal Circuit Court of Australia Act 1999 (Federal Circuit Court Act), and

·          Native Title Act 1993 .

       8.             The Bill would:

·          establish shared corporate services functions for the Federal Court, Family Court and Federal Circuit Court, while preserving their statutory independence

·          maintain heads of jurisdiction’s responsibility in relation to business of the courts and managing the administrative affairs of their respective courts, with administrative affairs defined to exclude corporate services

·          provide for a CEO for each head of jurisdiction to assist with the management of administrative affairs, which would mean the Family Court and Federal Circuit Court would no longer be required to share a CEO

·          provide that the Federal Court CEO is responsible for managing the corporate services of each of the three courts through the shared corporate services function, with a requirement to consult each of the heads of jurisdiction and the other CEOs in relation to this function, and

·          provide that the Federal Court CEO is the accountable authority for the administrative entity under the Public Governance, Performance and Accountability Act 2013 (the finance law) and the agency head for the purposes of the Public Service Act 1999 , with provision for functions under these Acts to be delegated to the other two CEOs in relation to assisting with the administrative affairs of their respective courts.  

       9.             In addition, the legislation would make the following changes:

·          the titles of the Family Court Chief Judge and Family Court Deputy Chief Judge would be changed to ‘Chief Justice’ and ‘Deputy Chief Justice’; titles which they are already legislatively entitled to use and by which they are already generally known, and

·          merge the roles of the Family Court CEO and the Family Court Principal Registrar, with this change deferred until 1 January 2018 to provide a transitional period for the appointment of a person with appropriate expertise.

FINANCIAL IMPACT

   10.             The merging of the courts’ corporate functions is expected to deliver efficiencies to the courts of $9.4 million over the six financial years to 2020-21 and result in ongoing annual efficiencies of $5.4 million from this time.



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Courts Administration Legislation Amendment Bill 2015

   11.             This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

   12.             The Bill would amend various Acts in order to create a single administrative entity under the Public Governance, Performance and Accountability Act 2013 (the finance law) and a single statutory agency under the Public Service Act 1999 . The entity would have responsibility for the delivery of the shared corporate services functions of the Federal Court, the Family Court and the Federal Circuit Court of Australia. The National Native Title Tribunal would also be within the administrative entity, in line with its current arrangement with the Federal Court.

   13.             The Bill is primarily directed at the management, organisation and administration of the courts. It does not affect the substantive rights of court users that can be the subject of adjudication by the courts.

   14.             The Bill is designed to protect the independence of each of the federal courts. Heads of jurisdiction, being the existing Chief Justices and the Chief Judge, respectively, would continue to be exclusively responsible for the discharge of the business of their respective courts. Heads of jurisdiction would also continue to be responsible for managing the administrative affairs of their respective courts (excluding corporate services), with assistance from a Chief Executive Officer and Principal Registrar (CEO).

   15.             The Bill would establish a governance structure that would provide for centralised management of the courts’ shared corporate services by the Federal Court CEO. The Family Court Chief Justice and the Federal Circuit Court Chief Judge would no longer be required to share a CEO.

   16.             Consistent with the Government’s commitment to reducing inefficiency in public administration, the Bill would generate savings through the adoption of consolidated corporate services arrangements, including finance, human resources, information technology, and property and operations arrangements. The efficiencies generated would then be reinvested in the courts.

   17.             The Bill was developed in close consultation with the affected courts, the National Native Title Tribunal, and relevant Commonwealth departments.

Human rights implications

   18.             The Bill engages the right to a fair trial or hearing under Article 14 of the International Covenant on Civil and Political Rights.

   19.             All persons have the right to a fair trial or hearing. This right is ensured by having a competent and independent judiciary, including rights of appeal and review of judicial decisions, and a well-functioning court administration.

   20.             This Bill would not alter any substantive right of litigants to a fair trial or hearing as they currently exist. Litigants before the federal courts generally have the right to apply for a decision made in their matter to be reviewed. Rights of appeal allow those who are aggrieved to seek a review of a decision made by a court. The appeals process would not be affected by the Bill.

   21.             The independence of the judiciary and its freedom from political or private interference is an important aspect of the right to a fair trial or hearing. The Family Court, Federal Circuit Court and Federal Court are each independent courts. Their independence from each other and from other arms of government allows the judiciary to adjudicate matters without fear of government reprisal or undue interference from other judicial bodies, allowing each matter to be determined on its merits.

   22.             The independence of the judiciary would continue to be protected by this Bill. The proposed administrative arrangements in the Bill do not affect the independence of the judiciary from the Government, as the judicial and administrative affairs (excluding corporate services) of the court remain within the control of the judiciary.

   23.             Members of the judiciary would each be assisted by a CEO to be nominated by heads of jurisdiction and appointed by the Governor-General. Terms and conditions of appointment are not specified in the Bill.

   24.             While the courts would share corporate services, they would continue to maintain a separate and distinct judiciary. This would allow each court to be managed independently and without interference, noting that while the courts operate on a budget allocated by the Government, management of this budget is at the discretion of the courts.

   25.             The Bill ensures appropriate governance arrangements, including financial management and corporate services functionality, to support delivery of the courts’ core functions. Improved efficiencies ensure all Australians continue to have access to the courts for impartial resolution of their legal disputes, in accordance with their rights.

   26.             The Bill would generate efficiencies from amalgamating the corporate services of the courts, which would in turn assist to support the courts’ core functions. The Bill would achieve this by allowing for corporate services to be shared between the courts and managed by the Federal Court CEO, with a requirement to consult each of the heads of jurisdiction and the other CEOs in relation to this function. This governance structure reduces the administrative burden on the heads of jurisdiction and their respective CEOs, and also allows for efficiencies in delivery of such services to be identified and managed at a central point.

Conclusion

   27.             The Bill is compatible with human rights. The amendments primarily relate to the courts’ administrative and corporate operations. The Bill would not alter the substantive powers of the judiciary or the rights of parties to have a matter heard by the courts. It therefore maintains and promotes the right to a fair trial or hearing.



Summary of the Bill

Policy background

   28.             The performance, funding and operation of the federal courts has been considered in many reviews and reports, including the consideration of amalgamating the courts’ corporate services functions in the context of smaller and more rational government.

   29.             The 2012 Strategic Review of Small and Medium Agencies in the Attorney-General’s Portfolio considered that there was merit in shared administration arrangements, as did the 2014 National Commission of Audit Report, Towards Responsible Government . The 2014 KPMG review into the performance and funding of the federal courts examined and recommended incorporating the Federal Court into shared administration arrangements with the Family Court and Federal Circuit Court. The savings from this proposal were identified and further analysed in 2014-15 by Ernst & Young.

   30.             The need for efficiencies to be generated by amalgamating the courts’ corporate services functions has increased with the significant budgetary pressures and ongoing deficits being faced by the family courts in particular. The 2013-14 Annual Reports of the Federal Court, Family Court and Federal Circuit Court all referred to the current tight fiscal environment, projected deficits, the impact of ongoing savings measures and ongoing efforts to realise savings across the courts. The combined projected deficit of the courts was estimated to be $44.2 million over the forward estimates, which would result in the family courts being unable to maintain current service levels. To avoid cuts to services, including regional registry closures and the non-replacement of judges, reforms were needed to place the courts on a sustainable funding footing into the future.

   31.             The approach taken in the Bill to the amalgamation of the courts’ corporate services functions preserves the judicial and functional independence of each court, while generating ongoing efficiencies through the creation of a single administrative entity. The amalgamation would create potential for further economies of scale, organisational agility and financial sustainability in the longer term. These savings are to be reinvested into the federal courts to support the delivery of their core services.

   32.             The amalgamation of the courts’ corporate services function was announced by the Government as part of its 2015-16 Budget package of measures to streamline and improve the sustainability of the federal courts.

Major features of the Bill

   33.             The Bill would adjust the courts’ governance structures to support shared corporate services and bring the courts into a single administrative entity under the finance law and Public Service Act. The proposed structures would safeguard the independence of the courts and promote their effective management.

   34.             The management structure would preserve responsibilities of heads of jurisdiction with respect to the administrative affairs of their respective courts. The definition of administrative affairs would be amended to exclude corporate services. Each head of jurisdiction would be supported in the management of administrative affairs by a Chief Executive Officer (CEO) appointed by the Governor-General on their own nomination. The Family Court Chief Justice and Federal Circuit Court Chief Judge would no longer be required to share a CEO. The title of the Federal Court Registrar, who performs this role already, would be changed to include ‘CEO’.  

   35.             The Bill would provide that the CEOs would also hold the position of Principal Registrar. This would be a further title change for the Federal Court Registrar. It would require the combination of the CEO and Principal Registrar positions in the Family Law Act, although this would be delayed until 1 January 2018 to facilitate the transition. The Federal Circuit Court does not currently have a statutory position of Principal Registrar. These amendments would create consistency between the federal courts.

   36.             The Federal Court CEO would be the head of the administrative entity for the purposes of the finance law (accountable authority of the listed entity) and Public Service Act (agency head of the statutory agency). These roles would confer a number of powers and responsibilities on the Federal Court CEO.

   37.             While the Federal Court CEO would hold these powers for the merged administrative entity, in practice the Federal Court CEO would delegate functions and powers under the finance law and the Public Service Act relevant to the administrative affairs of the Family Court and the Federal Circuit Court, to the Family Court CEO and the Federal Circuit Court CEO, respectively. To ensure the Family Court CEO and Federal Circuit Court CEO are able to assist their respective head of jurisdiction with administrative affairs, the Federal Court CEO’s delegations power in relation to these functions would be limited so that delegations could only be made to the Family Court CEO and the Federal Circuit Court CEO in relation to their respective courts.

   38.             In order to fulfil the purposes of the administrative entity under the finance law, which would include the Family Court CEO and Federal Circuit Court CEO assisting their respective head of jurisdiction with administrative affairs, the Federal Court CEO, as head of the entity, would be required to take steps to facilitate this assistance. This would include making relevant delegations under the finance law and Public Service Act.

   39.             The provision of corporate services to each of the three courts would be the responsibility of the Federal Court CEO. Corporate services would be defined to include communications, finance, human resources, information technology, library services, procurement and contract management, property, risk oversight and management and statistics. The Federal Court CEO would be required to consult with heads of jurisdiction and the other CEOs in relation to the performance of this function. Details relating to corporate services and consultation requirements would be set out in a memorandum of understanding.

Consequential amendments

   40.             The Bill would make consequential and other amendments to a number of Acts to:

a.        reflect the change of the title of the Family Court Chief Judge to Chief Justice and the Family Court Deputy Chief Judge to Deputy Chief Justice

b.        remove obsolete references to Judge Administrator of the Family Court

c.        update references to the Federal Court Chief Executive Officer and Principal Registrar and the Federal Court Registrars, to reflect changes in the titles of these positions from Federal Court Registrar and Federal Court Deputy Registrars respectively, and

d.        update references to the Chief Executive Officer and Principal Registrar of the Family Court from 1 January 2018, when the combined role would take effect.

Transitional arrangements

   41.             The Bill would make transitional arrangements to preserve and transition the appointments of the Registrar of the Federal Court and officers of the Federal Court, the Family Court and the Federal Circuit Court and the National Native Title Tribunal, together with the engagement of consultants. It would also provide for continuity of the Federal Court listed entity for the purpose of the finance law and of the statutory agency for the purpose of the Public Service Act. Provision would also be made for the preservation of the enterprise agreement of employees of the Family Court and the Federal Circuit Court until a new agreement comes into operation for the merged entity.

   42.             The Bill would provide a rule making power, in the form of a legislative instrument, prescribing additional matters of a transitional nature related to the amendments or repeals made by the Bill.

 



 

NOTES ON CLAUSES

List of abbreviations

APS                                                                        Australian Public Service

Family Court                                                     Family Court of Australia

Family Court CEO                                           Family Court of Australia Chief Executive Officer and Principal Registrar

Family Law Act                                               Family Law Act 1975

Federal Circuit Court                                     Federal Circuit Court of Australia

Federal Circuit Court Act                             Federal Circuit Court of Australia Act 1999       

Federal Circuit Court CEO                           Federal Circuit Court of Australia Chief Executive Officer and Principal Registrar

Federal Court                                                    Federal Court of Australia

Federal Court Act                                            Federal Court of Australia Act 1976

Federal Court CEO                                          Federal Court of Australia Chief Executive Officer and Principal Registrar

Finance law                                                       Public Governance, Performance and Accountability Act 2013

Native Title Act                                                Native Title Act 1993

Public Service Act                                          Public Service Act 1999

Preliminary

Clause 1 - Short title

   43.             This clause would provide that this Act may be cited as the Courts Administration Legislation Amendment Act 2015 .

Clause 2 - Commencement

   44.             This clause would provide for the commencement of each provision of the Bill. Most provisions would commence on 1 July 2016 to reflect the merged Federal Court administrative entity taking effect from this date.  Other provisions would commence on 1 January 2018 to reflect the Family Court CEO role being merged with the Principal Registrar role from this date. 

Clause 3 - Schedules

   45.             This clause would provide that any legislation that is specified in a Schedule to this Act would be amended or repealed as set out in that Schedule and any other Item in a Schedule to this Act has effect according to its terms.

Schedule 1- Amendments Relating to the Federal Court

Part 1 - Amendments Commencing on 1 July 2016

Overview

   46.             Part 1 of Schedule 1 to the Bill would amend the Federal Court Act. Key changes would include:

a.        Amendments to Part IIA of the Act (Items 4 to 42 of Schedule 1), which relate to the management of the Federal Court, which would:

                                                               i.       provide that the administrative affairs of the Court, which the Chief Justice is responsible for managing, exclude corporate services (Item 5)

                                                             ii.       define corporate services, which would be the responsibility of the Federal Court CEO (Items 5 and 8)

                                                           iii.       change the title of the Federal Court Registrar to Federal Court Chief Executive Officer and Principal Registrar (several of Items 14-29 and 40-42)

                                                           iv.       change the title of Deputy Registrars to Registrars (Items 30, 31, 41 and 42), and

                                                             v.       facilitate the establishment of the Federal Court, Family Court and Federal Circuit Court as a merged courts administrative entity under the finance law, through the repeal of provisions in the respective courts’ legislation that would be included jointly for the three courts in the new Part IIB of the Federal Court Act (Items 33 and 36).

b.        The insertion of new Part IIB of the Act (Item 43 of Schedule 1), which would:

                                                               i.       provide for the management of the merged corporate services for the Federal Court, the Family Court and the Federal Circuit Court (section 18Z)

                                                             ii.       establish the merged courts administrative entity under the finance law (section 18ZB) and the statutory agency under the Public Service Act (section 18ZE) and limit delegations of the Federal Court CEO’s powers under these laws (sections 18ZC and 18ZG)

                                                           iii.       provide that the Federal Court CEO must make staff available to assist the other CEOs in the performance of their functions of assisting with administrative affairs and in relation to family consultants (section 18ZF)

                                                           iv.       constrain how the Federal Court CEO, as accountable authority under the finance law, spends money for the merged administrative courts entity (section 18D), and 

                                                             v.       include other centralised provisions for the three courts, including in relation to appointments and the engagement of consultants, family counsellors and family dispute resolution practitioners (sections 18ZH, 18ZI, 18ZJ and 18ZK).  

c.        Amendments to a number of other provisions throughout the Act to reflect changes in the title of the Registrar and Deputy Registrars of the Federal Court.

Amendments to the Federal Court of Australia Act 1976

Item 1 - Section 4

   47.             Item 1 would insert a number of new definitions into existing section 4.

   48.             ‘Administrative affairs’ would have the meaning given in new subsection 18A(1A), which excludes ‘corporate services’ from the definition of administrative affairs. ‘Corporate services’ would have the meaning given in new subsection 18A(1B). Section 18A would be inserted by Item 5 of Schedule 1. This new definition would change the scope of the Chief Justice of the Federal Court’ s management responsibility under existing section 18A of the Federal Court Act.

   49.             Item 1 would insert a definition of ‘Australian court’, which would correspond to the insertion of new section 18BAA (see Item 11 of Schedule 1, below). ‘Australian court’ would be defined to mean a federal court or a State or Territory court.

   50.             ‘Chief Executive Officer’ would be defined as the Chief Executive Officer and Principal Registrar of the Federal Court. This definition would reflect the change in title for the Registrar of the Federal Court to the Chief Executive Officer and Principal Registrar.

   51.             This Item would also insert definitions of ‘Family Court Chief Executive Officer’ and ‘Federal Circuit Court Chief Executive Officer’ into existing section 4. This would establish defined terms for the Chief Executive Officers of the Family Court and Federal Circuit Court, which would be used in the new Part IIB.

   52.             This Item would also provide that the definition of the ‘finance law’ in section 8 of the finance law applies in the Federal Court Act. New section 18ZB would set out the application of the finance law to the new single administrative entity (see Item 43 of Schedule 1, below).

Items 2 and 3 - Section 15A (heading) and section 15A

   53.             Items 2 and 3 would amend section 15A of the Federal Court Act to update references to the ‘Chief Judge’ of the Family Court to refer to ‘Chief Justice’ of the Family Court. This change would be consistent with a corresponding change in the Family Law Act (see Schedule 2). To allow for this change, the term used to refer to the Chief Justice of the Federal Court would also be adjusted. These Items would also amend references to the Chief Justice to refer to the Chief Justice of the Court, which would clarify that a reference to the Chief Justice of the Court within the Federal Court Act would be a reference to the Chief Justice of the Federal Court and not a reference to the Chief Justice of the Family Court. ‘The Court’ is currently defined as the Federal Court.

Items 4, 9, 10, 13 -29, 32, 34 and 40 - Division 1 of Part IIA (heading), section 18B (heading), section 18B, Division 2 of Part IIA (heading), section 18C, section 18D (heading), section 18D, section 18E (heading), section 18E, section 18F (heading), section 18F, section 18G, section 18H, section 18J (heading), subsection 18J(1), section 18K, section 18L (heading), section 18L, section 18M (heading), section 18M, section 18N (heading), subsection 18N(1), subsection 18N(2),  subsection 18N(4), subsection 18N(6) and section 18X

   54.             These amendments would reflect the change in title of the Federal Court Registrar to Chief Executive Officer and Principal Registrar. These amendments would not substantively change the roles or powers of the position. The change of title would reflect existing functions and create consistency between the federal courts, noting that the Federal Court Registrar holds functions that are equivalent to those of the CEO of the Family Court and Federal Circuit Court, in addition to the role as the leading registrar in the Federal Court. The addition of the word ‘Principal’ to the title would align with the title of the most senior registrar in the other federal courts.

   55.             Corresponding amendments would be made to the title used to refer to the next most senior registrars in the court, who would be referred to as ‘Registrar’ rather than ‘Deputy Registrar’ (see Items 30 and 31 of Schedule 1, below).  This would align with practice in the other federal courts and would not substantively change the roles or powers of the position. 

Items 5 and 8 - After subsection 18A(1) and at the end of section 18A

   56.             Item 5 would insert new subsections 18A(1A) and 18A(1B) to define corporate services and provide that they are excluded from administrative affairs. Existing section 18A(1) provides that the Chief Justice of the Federal Court is responsible for managing the administrative affairs of the court. New subsection 18A(1B) would define corporate services to include:

a.        communications, which would include managing information and publications (online and in print), and managing internal and external communications, but exclude media officers, who would remain within the administrative affairs of the courts and report directly to the respective heads of jurisdiction 

b.        finance, which would include asset management, finance systems administration, accounts receivable, accounts payable, credit card processing, travel management, financial controls, tax management, balance sheet management, internal and external budgeting, and finance governance

c.        human resources (HR), which would include workforce planning, recruitment, managing payroll, HR systems administration, HR administration and HR initiatives and project delivery

d.        information technology (IT), which would include IT service desk, applications development and support, network support, general IT management, IT security and records management

e.        library services

f.         procurement and contract management, which would include procurement management, contract management (including the management of external security contracts), and fleet vehicle management

g.        property, which would include managing national property and accommodation initiatives, outsourced property contracts, building fit outs, and environmental management

h.        risk oversight and management, which would include internal audit and risk management, and

i.          statistics, which would include assisting each court with the collection, extraction, archiving and reporting of court related data, managing collection methodology and quality controls, and providing analysis to support research projects. Each court would continue to own data relevant to its own performance, and to have ultimate responsibility for the analysis and dissemination of such data.

   57.             New paragraph 18A(1B)(f) would provide for the management of security contracts to sit with corporate services as part of ‘procurement and contract management’. The functions of marshals and sheriffs would remain within the administrative affairs of the courts. In practice, the corporate services team would be expected to work in close consultation with marshals and sheriffs in relation to security contracts.

   58.             New paragraph 18A(1B)(j) would provide that corporate services also includes further matters prescribed by legislative instrument . Item 8 would insert new subsection 18A(5) into the Federal Court Act, which would provide that the Attorney-General may, by legislative instrument, determine that matters are corporate services of the court. This would provide flexibility for the Attorney-General to determine the inclusion of further matters in the definition of corporate services in the future, should further matters be identified.

   59.              The intended effect of new subsections 18A(1A) and 18A(1B) would be to delineate corporate services from the administrative affairs responsibilities of the Chief Justice of the Federal Court under existing section 18A(1). The Federal Court CEO would be responsible for providing shared corporate services to the three courts under new section 18Z of the Federal Court Act, which would be inserted by Item 43 of Schedule 1. Corporate services would be defined in the same way for each of the three courts (see new subsection 38A of the Family Court Act, which would be inserted by Item 53 of Schedule 2, and new subsection 89(1) of the Federal Circuit Court Act, which would be inserted by Item 5 of Schedule 3). New subsection 18Z(3) would require the Federal Court CEO to consult with the Federal Court Chief Justice, together with the Family Court Chief Justice, the Federal Circuit Court Chief Judge, the Family Court CEO and the Federal Circuit Court CEO, in relation to the provision of corporate services.

   60.             The merger of the corporate services functions would allow for expected efficiencies to be generated from the streamlining of existing services where appropriate. The merger is expected to deliver efficiencies to the courts of $9.4 million over the six financial years to 2020-21 and projected ongoing annual efficiencies of $5.4 million from this time.   These savings would be reinvested into the courts with the objective of contributing to placing them on a sustainable funding footing in the longer term.

Item 6 - Subsection 18A(2)

   61.             This amendment would clarify that the power of the Chief Justice to do all things necessary or convenient, including entering into contracts on behalf of the Commonwealth, is limited to the purpose in subsection 18A(1), that is, to managing the administrative affairs of the Court. This amendment would recognise the delineation between the management of administrative affairs in subsection 18A(1) and the management of those matters defined as corporate services in subsection 18A(1B), which would be the responsibility of the Federal Court CEO.

Item 7 - Subsection 18A(4)

   62.             Item 7 would amend the specified contract amount in existing subsection 18A(4). Existing subsection 18A(4) provides that the Chief Justice of the Federal Court may only  enter into contracts on behalf of the Commonwealth for amounts exceeding $250,000, or a higher amount if prescribed, with the approval of the Attorney-General. Item 7 would amend this amount to be $1,000,000. A corresponding change would be made to section 38A of the Family Law Act (see Item 56 of Schedule 2, below).

   63.             This amendment would create consistency between the Federal Court, the Family Court and the Federal Circuit Court and reflect in primary legislation the amounts already prescribed by regulation 4.01 of the Federal Court and Federal Circuit Court Regulation 2012 and regulation 3A of the Family Law Regulations 1984

Item 11 - After section 18B

   64.             This Item would insert new section 18BAA which would provide for the Chief Justice of the Federal Court to make arrangements with the chief judicial officer of another court for the performance of functions by an officer of that other court on behalf of the Federal Court. New subsection 18BAA(1) would set out the functions that may be performed. New subsection 18BAA(2) would provide that if such an arrangement is in place the officer may perform the function despite any other provision of the Federal Court Act or any other Commonwealth Law. New subsection 18BAA(3) would provide that a function performed on behalf of the Federal Court has effect as if the function had been performed by the Federal Court.

   65.             New section 18BAA would be modelled on existing section 90 of the Federal Circuit Court Act. A corresponding provision would also be inserted into the Family Law Act (see Item 59 of Schedule 2, below). This would create consistency between all three courts.  

Item 12 - Division 1A of Part IIA

   66.             This Item would repeal Division 1A of Part IIA, which contains existing section 18BB, which sets out the application of the finance law, including designating the structure, accountability and purposes of the existing Federal Court entity under the finance law.

   67.             This Division would be replaced by new section 18ZB in Division 2 of Part IIB, which would be inserted by Item 43 of Schedule 1. This provision would be appropriately housed in this Part as the new Part IIB includes provisions for corporate services and other matters that relate to all three courts. New section 18ZB would provide for the application of the finance law to the merged courts administrative entity, which would commence on 1 July 2016.

   68.             New section 18ZB would replace existing section 18BB of the Federal Court Act together with existing section 38BAA of the Family Law Act.  Existing section 38BAA provides for the application of the finance law to the Family Court and the Federal Circuit Court entity (see Item 60 in Schedule 2, below).  This entity would be merged into the Federal Court entity to create a single administrative courts entity under the finance law from 1 July 2016. Item 7 in Schedule 6 would maintain the continuity of the Federal Court entity under the existing section 18BB of the Federal Court Act. 

Items 30 and 31 - Before paragraph 18N(1)(a) and paragraph 18N(1)(b)

   69.             Items 30 and 31 would amend existing subsection 18N(1) to change the title for officers known as Deputy Registrars, to the title of Registrar.

   70.             These amendments would correspond with amendments that would retitle the existing Registrar role to the Chief Executive Officer and Principal Registrar of the Court (see Items 4, 9, 10, 13-29, 32, 34 and 40 of Schedule 1, above and Items 44 to 62 of Schedule 1, below). It would also align with practice in the other federal courts and would not substantively change the roles or powers of the position. 

Items 33 and 36 - Subsection 18N(3), sections 18Q and 18R

   71.             Item 33 would repeal existing subsection 18N(3) which provides for officers of the Federal Court to be appointed by the existing Federal Court Registrar.

   72.             Item 36 would repeal existing sections 18Q and 18R. Existing section 18Q establishes the existing statutory agency for the purposes of the Public Service Act, comprising the Federal Court Registrar and staff assisting the Registrar. Existing section 18R provides for the engagement of consultants by the Registrar.

   73.             Section 18Q would be replaced by the new section 18ZE in Division 3 of Part IIB, which would be inserted by Item 43 of Schedule 1. This provision would be appropriately housed in this part as the new Part IIB includes provisions for corporate services and other matters that relate to all three courts.  New section 18ZE would establish a new statutory agency for the purposes of the Public Service Act for the merged courts administrative entity, which would commence on 1 July 2016. 

   74.             New section 18ZE would replace existing section 18Q of the Federal Court Act, together with existing section 38Q of the Family Law Act.  Existing section 38Q provides for the establishment of the statutory agency for the Family Court and Federal Circuit Court.  This agency would be merged into the Federal Court entity to create a single statutory agency from 1 July 2016.  Item 9 in Schedule 6 would maintain the continuity of the existing Federal Court statutory agency.  

   75.             These items would repeal existing subsection 18N(3) and section 18R, as powers in respect of appointment and the engagement of consultants would instead be provided for in a way that reflects the structure of the merged entity and the responsibilities of the Federal Court CEO in new sections 18ZH (appointment) and 18ZI (engagement of consultants, family counsellors and family dispute resolution practitioners) (see Item 43 of Schedule 1, below).

   76.             These powers would be centralised as they relate to the functions of the administrative head of the organisation under the finance law and the Public Service Act (referred to in the respective acts as the accountable authority and the agency head). The Federal Court CEO would hold these powers for the merged administrative courts entity. However, in practice the Federal Court CEO would delegate functions relevant to the administrative affairs of the Family Court and the Federal Circuit Court to the Family Court CEO and the Federal Circuit Court CEO, respectively (see Item 43 of Schedule 1, below). The Federal Court CEO’s delegations power in relation to these functions would be limited so that delegations could only be made to the Family Court CEO and Federal Circuit Court CEO in relation to the respective courts. Powers to subdelegate in relation to the powers of appointment and the engagement of consultants, family counsellors and family dispute resolution practitioners would be provided in new section 18ZJ. Subsection 78(9) of the Public Service Act would allow the Family Court CEO and the Federal Circuit Court CEO to subdelegate powers under the Public Service Act. 

Item 35 - Subsection 18N(6)

   77.             This Item would amend existing subsection 18N(6) which provides for the Federal Court CEO, on behalf of the Chief Justice, to arrange with an Agency Head, or with an authority of the Commonwealth, for the services of officers or employees of the Agency or authority to be made available for the purposes of the Court. It would clarify that such arrangements would be for the purposes of the administrative affairs of the Federal Court and not related to corporate services.

Items 37 and 38 - Subsection 18S(1) (note) and at the end of section 18S

   78.             Item 37 would repeal the note under existing subsection 18S(1), which provides that a report prepared under section 46 of the finance law may be included in the annual report prepared under existing section 18S.

   79.             Item 38 would insert new subsection 18S(4), which would provide that a report prepared under section 18S may be included in a report prepared by the Federal Court CEO and given to the Attorney-General under section 46 of the finance law . The Federal Court CEO, as accountable authority, would be required to prepare the report under the finance law for the merged administrative courts entity referred to in new section 18ZB (see Item 43 of Schedule 1, below).

   80.             The intention of these amendments would be to provide flexibility for the annual report prepared on the management of the administrative affairs of the Federal Court to be included as a volume within the merged administrative entity’s report, to avoid the duplication of financial statements and other information required to be included in the administrative entity’s report under the finance law, and in accordance with the Requirements for Annual Reports approved by the Joint Committee of Public Accounts and Audit.

   81.             Corresponding amendments would be made to existing section 38S of the Family Law Act and existing section 117 of the Federal Circuit Court Act (see Items 77 and 78 of Schedule 2, and Items 15 and 16 of Schedule 3, respectively). 

Item 39 - Section 18X (heading)

   82.             This Item would repeal the heading of existing section 18X and substitute a new heading that refers to proceedings arising out of the administrative affairs of the Federal Court rather than the administration of the Court. This would reflect the separation between the provisions relating to the management of administrative affairs and those pertaining to corporate services in new section 18ZA.

Items 41 and 42 - Section 18Y

   83.             Items 41 and 42 would amend existing section 18Y to reflect title changes to the Registrar and Deputy Registrar roles. These align with updated references to Registrar to refer to the retitled ‘Chief Executive Officer and Principal Registrar’ role (see Items 4, 9, 10, 13-29, 32, 34 and 40 of Schedule 1, above and Items 44 to 62 of Schedule 1, below). Consequently, officers with the existing title of Deputy Registrar would be retitled to Registrar.

   84.             The retitling of these roles would align with practice in the other federal courts and would not have a substantive effect on the duties of these roles. 

Item 43 - After Part IIA

   85.             This Item would insert the new Part IIB titled ‘corporate services and other matters’, which would contain all provisions that relate to the newly merged single administrative courts entity:

a.        the management of corporate services (Division 1, new sections 18Z and 18ZA)

b.        matters regarding the application of the finance law for the merged courts administrative entity (Division 2, new sections 18ZB, 18ZC and 18ZD)

c.        matters under the Public Service Act for the statutory agency (Division 3, new sections 18ZE, 18ZF and 18ZG)

d.        other powers of the Federal Court CEO relating to the three courts (Division 4, new sections 18ZH, 18ZI and 18ZJ), and

e.        other matters relating to the three courts (Division 5, new section 18ZK).

Division 1 - Corporate Services

   86.             Division 1 of Part IIB would include provisions regarding corporate services in new sections 18Z and 18ZA.

New section 18Z - Corporate services

   87.             New section 18Z would provide that the Federal Court is responsible for providing corporate services to the Federal Court, the Family Court and the Federal Circuit Court. Services that are corporate services would be defined in new subsection 18A(1B) of the Federal Court Act, new subsection 38A(1B) of the Family Law Act and new subsection 89(2A) of the Federal Circuit Court Act. Centralising corporate services would generate ongoing efficiencies, create potential for further economies of scale and organisational agility and contribute to the ongoing financial sustainability of the courts in the longer term.

   88.             Under new subsection 18Z(2), the Federal Court CEO would have the power to do all things necessary or convenient for the purpose of providing corporate services to the Federal Court, the Family Court and the Federal Circuit Court. The Federal Court CEO’s power in relation to corporate services would be intended to give scope to manage the merged administrative courts entity in order to generate the necessary efficiencies.

   89.             New subsection 18Z(3) would require the Federal Court CEO to consult with the CEOs of the other courts and each head of jurisdiction in providing corporate services. This consultation requirement would help ensure that the corporate services, which are key to the functioning of all three courts, are targeted to the needs of each of the courts. The nature and extent of consultation may differ depending on the matter at hand.  Details regarding consultation would be set out as part of a memorandum of understanding.

   90.             New subsection 18Z(4) would provide that a failure to comply with the consultation requirement in new subsection 18Z(3) would not affect the validity of a decision.

   91.             Under new subsection 18Z(5), the Federal Court CEO would not be able to make a decision in relation to corporate services that would have the effect of imposing an expenditure obligation in relation to the administrative affairs of the Federal Court, the Family Court or the Federal Circuit Court, unless the CEO had either consulted with, and obtained the consent of, the relevant Chief Justice or Chief Judge or the Attorney-General had consented to the decision. This provision would ensure that the Federal Court CEO, in managing corporate services, could not impose spending obligations on the courts without the consent of the respective head of jurisdiction. In practice it would be expected that any concerns regarding expenditure or service level expectations would be resolved through discussion and negotiation, with arrangements contained in a memorandum of understanding.

   92.             New subsection 18Z(6) would allow the Federal Court CEO to delegate, in writing, all or any of his or her functions relating to corporate services to a person referred to in new subparagraphs 18ZB(a)(ii) or (iii): officers of the Federal Court and staff of registries of the Federal Court. Scope for the Federal Court CEO to delegate functions to relevant officials in the Federal Court would provide necessary flexibility for the CEO in the exercise of his or her powers and facilitate the CEO’s provision of corporate services to each of the three courts.

   93.             New subsections 18Z(7) and (8) would provide that if the Federal Court CEO delegates a function or power to a person under new subsection 18Z(6), the CEO may give written directions to the person in relation to the performance of the function or the exercise of the power, which must be complied with.

New section 18ZA - Proceedings in relation to corporate services

   94.             New section 18ZA would provide that any judicial or other action may be taken by or against the Commonwealth in relation to the Federal Court CEO’s exercise of powers in relation to corporate services. The new section is necessary to ensure that proceedings in relation to corporate services are covered, given the change to the heading of section 18X (see Item 39 of Schedule 1, above) which has the effect of restricting the application of section 18X to the exercise of power in relation to administrative affairs of the court.

Division 2 - Application of the finance law

   95.             Division 2 of Part IIB would include provisions regarding the application of the finance law in new sections 18ZB, 18ZC and 18ZD.

New section 18ZB - Application of the finance law

   96.             New section 18ZB would establish the structure of the new courts administrative entity for the purposes of the finance law. This section would replace existing section 18BB of the Federal Court Act and section 38BAA of the Family Law Act. The existing Family Court and Federal Circuit Court administrative entity under the finance law would be merged into the Federal Court administrative entity.

   97.             New paragraph 18ZB(a) would set out the composition of the entity. This would incorporate the persons who currently form the Federal Court entity and Family Court and Federal Circuit Court entity (listed in existing paragraph 18BB(a) of the Federal Court Act and existing 38BAA(a) of the Family Law Act, respectively). The list does not include judges, justices or judicial registrars under Part IV, Division 4 of the Family Law Act who are not part of the administrative entity under the finance law.

   98.             Under new paragraph 18ZB(b), the listed entity would be known as the Federal Court of Australia. This would reflect that the existing Federal Court entity would continue in existence (see Part 3 of Schedule 6), with the existing Family Court and Federal Circuit Court entity to merge into this continuing entity.

   99.             New paragraph 18ZB(c) would provide that the Federal Court CEO would be the accountable authority of the entity for the purposes of the finance law. The role of accountable authority carries a number of powers and duties under the finance law, including to promote the proper use and management of the entity’s resources, to promote the achievement of the entity’s purposes and to promote the financial stability of the entity.

100.             New paragraph 18ZB(d) would provide that all the persons listed as part of the entity in paragraph 18ZB(a) are officials of the listed entity. Provisions relating to officials, including duties to act with care and diligence, in good faith and for proper purposes and to avoid conflicts of interest or an improper use of an official’s position, are set out in Part 2-2, Division 3 of the finance law. These duties co-exist with duties for officials under the Public Service Act .

101.             New paragraph 18ZB(e) would set out the purposes of the entity. This would incorporate the existing purposes of the Federal Court entity and Family Court and Federal Circuit Court entity (listed in existing paragraphs 18BB(e) of the Federal Court Act and 38BAA(e) of the Family Law Act, respectively), which include:

a.        each CEO’s assistance of their respective head of jurisdiction with the administrative affairs of their courts (new subparagraphs 18ZB(e)(i), (ii) and (iii))

b.        the functions of the CEOs of the Family Court and the Federal Circuit Court in relation to family consultants (new subparagraphs 18ZB(e)(ii) and (iii)), and

c.        the Federal Court CEO’s function of assisting the President of the National Native Title Tribunal with the administrative affairs of the Tribunal (new subparagraph 18ZB(e)(iv)).

102.             The purposes of the entity would also include the Federal Court CEO’s new functions in relation to the corporate services of the courts (new subparagraph 18ZB(e)(i)).

103.             Section 15 of the finance law requires accountable authorities to govern the entities for which they are responsible in a way that is financially responsible and that promotes the achievement of the entity’s purposes.

104.             New paragraph 18ZB(e), in conjunction with section 15 of the finance law, would require the Federal Court CEO to take steps to facilitate the key functions of the Family Court and Federal Circuit Court CEOs to assist their heads of jurisdiction in managing the administrative affairs of their courts. This would include making relevant delegations under the finance law and Public Service Act.

105.             This facilitation would be strengthened by limitations on the Federal Court CEO’s delegations power so that functions relevant to administrative affairs of the other courts may only be delegated to the respective CEOs (new sections 18ZG, 18ZH and 18ZI). Similarly, new section 18ZC provides that powers and functions under the finance law may only be delegated to the respective CEOs or to officers and staff of the Family Court and the Federal Circuit Court on the nomination of the respective CEOs. The facilitation would be further strengthened by new section 18ZF, which would provide that the Federal Court CEO must make staff available for the purposes of assisting the other CEOs with their functions.  These provisions would ensure the CEO of each court would be able to assist heads of jurisdiction to manage the administrative affairs of their respective courts with relative autonomy, while also being within a single administrative entity for the purposes of the Public Service Act and the finance law. In practice, it is expected that the Federal Court CEO would work in close consultation with the other two CEOs in undertaking certain functions that the finance law does not allow to be delegated, for example the preparation of a corporate plan under section 35 of the finance law. This would also support the achievement of the purposes of the entity.

106.             Section 15 of the finance law does not require that the accountable authority exercise control over the carrying out of all of an entity’s purposes in statutory contexts where other officers of the entity exercise independent functions. 

New section 18ZC - Delegation of powers etc. under the finance law

107.             New section 18ZC would limit the Federal Court CEO’s delegation of powers under the finance law. Functions relating to the administrative affairs of the Family Court and Federal Circuit Court would only be able to be delegated to the respective CEOs or to officers and staff of the Family Court and the Federal Circuit Court on the nomination of the respective CEOs. These delegations would clarify how the existing delegations power established under section 110 of the finance law would apply to support the courts as a single administrative entity. The Federal Court CEO’s delegations powers would not be limited with respect to the administrative affairs of the Federal Court and National Native Title Tribunal and the corporate services of the courts.

108.             Paragraph 110(1)(a) of the finance law would provide for the Federal Court CEO, as accountable authority of the merged administrative entity, to delegate powers and functions conferred directly on him or her by the finance law, including the ability for the delegate to subdelegate powers. Paragraph 110(1)(b) of the finance law would provide that powers, functions or duties delegated to the Federal Court CEO, as accountable authority, by the Minister for Finance, may be subdelegated. New section 18ZC would provide for the subdelegation of powers and functions relevant to the administrative affairs of the Family Court and Federal Circuit Court, to the respective CEOs or to officers and staff of the Family Court and the Federal Circuit Court on the nomination of the CEOs of those respective courts.

New section 18ZD - Managing appropriations

109.             New section 18ZD would provide a constraint on how the Federal Court CEO as accountable authority under the finance law spends money for the merged administrative courts entity. The entity would have a single appropriation. Where there are outcomes for the entity within the single appropriation, the Federal Court CEO would be required to ensure that the amount relating to a particular outcome is only spent for that outcome, unless the Federal Court CEO consults with, and obtains the consent of, the relevant Chief Justice or Chief Judge or the Attorney-General consents to the spending of the amount for another outcome. The Attorney-General may not consent unless he or she has consulted the relevant Chief Justice or Chief Judge. 

110.             New section 18ZD would have the effect of protecting the budgets related to the management of the administrative affairs of the courts, which heads of jurisdiction would have responsibility for managing, assisted by their respective CEOs. Each court’s ability to decide how to spend the money allocated in its budget would help safeguard the courts’ independence.

111.             Subsection 18ZD(4) would preserve the operation of the Appropriation Act in relation to the courts administrative entity’s departmental funding. 

Division 3 - Application of the Public Service Act 1999 etc.

112.             Division 3 of Part IIB would insert new sections 18ZE, 18ZF and 18ZG, which would establish the framework of authority, delegations and accountability for the three courts as a single statutory agency for the purposes of the Public Service Act .

New section 18ZE - Statutory agency etc. for purposes of the Public Service Act 1999

113.             New section 18ZE would establish the Federal Court CEO as the head of the agency. This would replace existing section 18Q of the Federal Court Act and existing section 38Q of the Family Law Act, which currently establish the statutory agency for the Federal Court and for the Family Court and Federal Circuit Court, respectively.  The new statutory agency would include the Federal Court CEO as the agency head, APS staff of the three courts and of the National Native Title Tribunal.

114.             This provision would give effect to the transfer of the staff of the Family Court and Federal Circuit Court agency to the Federal Court agency for the purposes of the Public Service Act. Item 9 of Part 4 of Schedule 6 would provide for the Federal Court statutory agency to continue, with staff from the Family Court and Federal Circuit Court statutory agency moved to the Federal Court agency under Item 10 of Part 4 of Schedule 6. For the terms and conditions of employment that would apply to transferred staff, see Part 4 of Schedule 6.

115.             The Family Court and Federal Circuit Court CEOs would not form part of the agency for the purposes of the Public Service Act as they would not be APS employees. However, delegations could be made to these CEOs under subsections 78(7) and (8) of the Public Service Act, which allow delegation of the agency head’s powers to persons appointed to an office by the Governor - General under a law of the Commonwealth. The CEOs could then subdelegate powers pursuant to subsection 78(9) of the Public Service Act.

New section 18ZF - Making arrangements relating to APS employees

116.             New section 18ZF would provide a framework that requires the Federal Court CEO to make APS employees and staff of the Family Court of Australia available to the Family Court and to make APS employees and staff of the Federal Circuit Court available to the Federal Circuit Court, to assist with the administrative affairs and family consultant functions of those courts.

117.             New subsection 18ZF(2) and (4) would provide that staff made available for these purposes would be subject to the direction of the respective head of jurisdiction and CEO for whom they are performing services. This would help further ensure the Family Court and Federal Circuit Court CEOs have resources to carry out their functions of assisting heads of jurisdiction with administrative affairs under existing section 38B of the Family Law Act and existing section 89 of the Federal Circuit Court Act, and in relation to the CEO’s functions of family consultants (existing section 38BA of the Family Law Act and existing section 93A of the Federal Circuit Court Act).

New section 18ZG - Delegation of powers under the Public Service Act 1999

118.             New section 18ZG would limit the Federal Court CEO’s power to delegate functions in respect of staff of the agency for a matter relating to the administrative affairs of the Family Court or Federal Circuit Court to only the Family Court CEO and the Federal Circuit Court CEO, respectively. This would ensure that the respective CEOs are delegated Public Service Act powers that would support their functions in relation to assisting heads of jurisdiction with administrative affairs.  Subsection 78(9) of the Public Service Act would allow the Family Court CEO and Federal Circuit Court CEO to subdelegate these powers. The Federal Court CEO’s delegations powers would not be limited with respect to the administrative affairs of the Federal Court and National Native Title Tribunal, with the delegation of such powers encompassed by an existing memorandum of understanding. 

Division 4 - Other powers of the Chief Executive Officer

119.             Division 4 of Part IIB would centralise powers held by the Federal Court CEO in respect of each of the three courts in relation to the appointment of court officers (new section 18ZH) and the engagement of consultants, family counsellors and family dispute resolution practitioners (new section 18ZI), and provide for a subdelegation power under new section 18ZJ.

New section 18ZH - Appointment of other court officers

120.             New section 18ZH would provide that the Federal Court CEO is responsible for appointing officers of the Federal Court, the Family Court, the Federal Circuit Court and the National Native Title Tribunal. This would centralise powers currently found in existing subsection 18N(3) of the Federal Court Act, existing subsection 38N(3) of the Family Law Act, existing subsection 99(7) of the Federal Circuit Court Act and existing subsection 130(2) of the Native Title Act. As appointment of APS staff is within the powers of agency heads under the Public Service Act, these functions must necessarily be conferred on the Federal Court CEO. Under new subsections 18ZH(2) and (3) the delegations regarding staff of the Family Court and Federal Circuit Court would be limited to the respective CEOs of those courts.

121.             New section 18ZJ would enable the Family Court CEO and the Federal Circuit Court CEO to subdelegate the powers of appointment in subsections 18ZH(2) and (3), respectively.

New section 18ZI - Engagement of consultants, family counsellors and family dispute resolution practitioners

122.             New subsection 18ZI(1) would provide staffing powers to the Federal Court CEO in respect of engaging consultants for the Federal Court, the Family Court, the Federal Circuit Court or the National Native Title Tribunal. This would centralise powers currently found in section 18R of the Federal Court Act, section 38R of the Family Law Act, section 115 of the Federal Circuit Court Act and section 132 of the Native Title Act.

123.             New subsection 18ZI(2) would provide that the Federal Court CEO may engage people to perform family counselling or family dispute resolution services under the Family Law Act. Family counsellors are defined in existing section 10C of the Family Law Act and family dispute resolution practitioners are defined in existing section 10G of the Family Law Act. Corresponding amendments would be made to section 10C and 10G (see Items 10 and 13 of Schedule 2, below).

124.             New subsection 18ZI(3) would provide that an engagement under new subsections 18ZI(1) or (2) is to be made on behalf of the Commonwealth and in writing. New subsections 18ZI(4) and (5) would limit the persons to whom the Federal Court CEO may delegate his or her powers of engagement in relation to the Family Court and the Federal Circuit Court, to the respective CEOs of those courts. This would help ensure that the respective CEOs would be delegated engagement powers that would support their functions in relation to assisting heads of jurisdiction with managing the administrative affairs of their respective courts.

125.             New section 18ZJ would enable the Family Court CEO and the Federal Circuit Court CEO to subdelegate the powers to engage consultants in subsections 18ZI(4) and (5), respectively.

New section 18ZJ - Subdelegation of powers under the Division

126.             New section 18ZJ would provide that if the Federal Court CEO delegates his or her powers of appointment under section 18ZH or powers to engage consultants under section 18ZI to the Family Court CEO or the Federal Circuit Court CEO in relation to the Family Court or the Federal Circuit Court, respectively, the other CEOs could subdelegate those powers.

127.             New subsections 18ZJ(1) and (2) would enable the Family Court CEO and the Federal Circuit Court CEO to subdelegate the powers of appointment in subsections 18ZH(2) and (3), respectively and to subdelegate the engagement powers in subsections 18ZI(4) and (5), respectively. New subsection 18ZJ(1) would provide for the Family Court CEO to subdelegate to a person referred to in new subparagraphs 18ZB(a)(v) or (vi). New subsection 18ZJ(2) would provide for the Federal Circuit Court CEO to subdelegate to a person referred to in subparagraphs 18ZB(a)(viii) or (ix).

128.             New subsection 18ZJ(3) would apply if the Family Court CEO or Federal Circuit Court CEO subdelegates a power. Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 would apply to the delegation in the same way as they would apply to a delegation under new sections 18ZH or 18ZI.

Division 5 - Other matters

129.             Item 43 would insert new section 18ZK, the only provision in new Division 5 of Part IIB.  

New section 18ZK - Officers of the Court, the Family Court of Australia and the Federal Circuit Court

130.             New section 18ZK would provide that staff may be officers of one or more of the Federal Court, the Family Court and the Federal Circuit Court. This section would centralise existing subsections 99(2), (3), (4) and (5) of the Federal Circuit Court Act, which would be repealed by Item 10 of Schedule 3, below. It would also provide that an officer of the Federal Court may be also be an officer of the Family Court. The centralisation of new section 18ZK would facilitate the existing flexibility for cross-appointment of officers to more than one court. 

Items 44 to 62 - Subsection 23CQ(1), subsection 23HA(2), subsection 34(3), subsection 35A(8), subsection 36(3), section 37, paragraph 37AO(3)(b), subsection 37AP(1), subsection 37AP(2), paragraph 37AQ(4)(b), subsection 41(2), subsection 44(2), paragraph 44(2)(a), paragraph 45(1)(a), subsection 58DD(5), subsection 58DE(4), subsection 58FB(2), subsection 58FD(3), paragraph 59(2C)(b) 

131.             Items 44 to 62 would change references to the ‘Registrar of the Federal Court’ in the Federal Court Act to ‘Chief Executive Officer’, to reflect the change of title for this position. ‘Chief Executive Officer’ would be used as an abbreviation of the full title of ‘Chief Executive Officer and Principal Registrar’ (see new section 4 definition of ‘Chief Executive Officer’, which would be inserted by Item 1 of Schedule 1).

132.             The Federal Court currently uses the title ‘Registrar’ to refer to the most senior non-judicial employee, who assists the Chief Justice of the Federal Court with the administrative affairs of the Court. The title used to refer to this role currently differs between each of the federal courts. The new title of ‘Chief Executive Officer and Principal Registrar’ would also apply to the equivalent positions in the Family Court and the Federal Circuit Court, to create consistency between the Federal Court, Family Court and Federal Circuit Court.

133.             The new title would be a more accurate reflection of the current duties of the position in the Federal Court. The functions of the senior administrator of the courts includes not just administration and governance, as is generally associated with a Chief Executive Officer position, but also judicial support duties performed by a traditional Registrar. Combination of these roles would ensure the senior administrator is involved in both administrative and judicial support and therefore that the delivery of these functions is closely aligned.

134.             Items 44, 45, 47, 57 and 58 would also amend the title of ‘Deputy Registrar’ to that of ‘Registrar’ (see also Items 30 and 31 of Schedule 1, above). This retitling would provide consistency across the courts following the retitling of the most senior non-judicial role of ‘Registrar’ of the Federal Court to the ‘Chief Executive Officer and Principal Registrar’.

135.             The title changes effected by Items 44 to 62 would not be intended to have any substantive effect on the responsibilities and duties of the already established roles of Registrar and Deputy Registrar in the Federal Court.

Part 2 - Amendments Commencing 1 January 2018

Overview

136.             This Part contains amendments to the Federal Court Act that would commence on 1 January 2018 to reflect the change in title of the ‘Family Court Chief Executive Officer’ to ‘Chief Executive Officer and Principal Registrar’ from 1 January 2018.

Item 63 - Section 4 (definition of Family Court Chief Executive Officer)

137.             This Item would replace references to the ‘Family Court Chief Executive Officer’ with ‘Family Court Chief Executive Officer and Principal Registrar’ from 1 January 2018. This amendment would effect the change as outlined in Part 2 of Schedule 2, below.

138.             This would allow a transitional period where these roles would be performed by separate officeholders before the roles of the Principal Registrar of the Family Court and the current Chief Executive Officer of the Family Court are merged on 1 January 2018. This transitional period would provide sufficient time to appoint a person with appropriate legal as well as management and administration expertise to the combined role.

Item 64 - Paragraph 18ZH(1)(b)

139.             This item would amend subsection 38N(1) to remove reference to the ‘Family Court Principal Registrar’ from this list of officers of the Family Court. This amendment would reflect the merging of the role with that of the Family Court CEO from 1 January 2018.

Schedule 2 - Amendments Relating to the Family Court

Part 1 - Amendments Commencing on 1 July 2016

Overview

140.             Part 1 of Schedule 2 to the Bill would amend the Family Law Act. Key changes would include:

a.        Amendments to Part IVA of the Act, which relate to the management of the Family Court, which would:

                                                               i.       provide that the administrative affairs of the Court, which the Chief Justice is responsible for managing, exclude corporate services (Item 53 of Schedule 2)

                                                             ii.       define corporate services, which would be the responsibility of the Federal Court CEO (Items 53 and 57 of Schedule 2)

                                                           iii.       replace references to the CEO of the Family Court and Federal Circuit Court with references to the CEO of the Family Court, to effect the separation of this position into a CEO for each of the courts (Items 61-65 of Schedule 2), and

                                                           iv.       facilitate the establishment of the Federal Court, the Family Court and the Federal Circuit Court as a single administrative entity under the finance law, through the repeal of provisions that would be included jointly for the three courts in the new Part IIB of the Federal Court Act (Items 60, 72 and 75 of Schedule 2).

b.        Change of the title of the Family Court Chief Judge to Chief Justice and the Family Court Deputy Chief Judge to Deputy Chief Justice.

Amendments to the Family Law Act 1975

Items 1 to 7 - Subsection 4(1)

141.             These Items would insert new definitions into the dictionary to reflect new concepts and positions in the merged courts administrative entity.

142.             Item 1 would insert a definition of ‘administrative affairs’ of the court. The meaning of ‘Administrative affairs’ would be affected by subsection 38A(1A), which excludes ‘corporate services’ from the definition of administrative affairs. ‘Corporate services’ would be defined in new subsection 38A(1B) (see Item 53 of Schedule 2, below).

143.             Item 2 would repeal the definition of ‘appropriate officer’ in Division 5 of Part III of the Family Law Act. This definition is obsolete because this Division has previously been repealed.

144.             Item 4 would amend the existing definition of ‘Chief Executive Officer’, which is currently defined to mean the joint CEO of the Family Court and Federal Circuit Court. This Item would delete the reference to the Federal Circuit Court from the definition, as a separate CEO would be established for the Federal Circuit Court (see Item 7 of Schedule 2, below).

145.             Item 3 would insert a definition of ‘Australian court’, which would correspond to the insertion of new section 38BAA (see Item 59 of Schedule 2, below). ‘Australian court’ would be defined to mean a federal court or a State or Territory court.

146.             Item 5 would insert a definition of ‘Chief Justice’ of the Family Court, to reflect the change in terminology from the ‘Chief Judge’ of the Family Court to the ‘Chief Justice’ of the Family Court. The existing definition of ‘Chief Judge’ in section 20 would be repealed (Item 18 of Schedule 2, below).  The new definition of ‘Chief Justice’ would clarify that a reference to Chief Justice of the Family Court includes the Deputy Chief Judge if so acting.

147.             Item 6 would update the definition of ‘complaint handler’ to reflect the change in  terminology from ‘Chief Judge’ of the Family Court to the ‘Chief Justice’ of the Family Court (see Items 5 and 18 of Schedule 2).

148.             Item 7 would insert a new definition for corporate services, which would have the meaning given in new subsection 38A(1B).

149.             Item 7 would also insert a new definition for the ‘Deputy Chief Justice’ of the Family Court, to reflect a change in terminology from the ‘Deputy Chief Judge’ of the Family Court to the ‘Deputy Chief Justice’ of the Family Court. Item 19 would repeal the existing definition of ‘Deputy Chief Judge’ in section 20.

150.             Item 7 would also insert a new definition for the Federal Circuit Court CEO, reflecting the establishment of this as a new position separate from the Family Court CEO.

Items 8, 9 and 10 - Paragraph 10C(1)(c), paragraph 10C(1)(d) and after paragraph 10C(1)(d)

151.             Items 8 and 9 would amend existing paragraphs 10C(1)(c) and (d) to remove from the definition of ‘family counsellor’ the references to a person engaged under existing subsection 38R(1A) of the Family Law Act or existing subsection 115(1A) of the Federal Circuit Court Act.

152.             Item 10 would insert new paragraph 10C(1)(da), which would define ‘family counsellor’ to include a person engaged under new subsection 18ZI(2) of the Federal Court Act. New section 18ZI, to be inserted by Item 43 of Schedule 1, would centralise the powers of engagement of consultants, family counsellors and family dispute resolution practitioners to perform services for the Federal Court, the Family Court, the Federal Circuit Court and the National Native Title Tribunal, together with the power to engage family counsellors and family dispute resolution practitioners.

153.             New subsection 18ZI(2) would provide that the Federal Court CEO is responsible for appointing persons to perform family counselling and family dispute resolution services under the Family Law Act. The Federal Court CEO’s delegations power in relation to these functions would be limited so that delegations could only be made to the Family Court CEO and the Federal Circuit Court CEO in relation to their respective courts.

Items 11, 12 and 13 - Paragraph 10G(1)(c), paragraph 10G(1)(d) and after paragraph 10G(1)(d)

154.             Items 11 and 12 would amend existing paragraphs 10G(1)(c) and (d) to remove from the definition of ‘family dispute resolution practitioner’ the references to a person engaged under existing subsection 38R(1A) of the Family Law Act or existing subsection 115(1A) of the Federal Circuit Court Act.

155.             Item 13 would insert new paragraph 10G(1)(da), which would define ‘family dispute resolution practitioner’ to include a person engaged under new subsection 18ZI(2) of the Federal Court Act. New section 18ZI, to be inserted by Item 43 of Schedule 1, would centralise the powers of engagement of consultants, family counsellors and family dispute resolution practitioners to perform services for the Federal Court, the Family Court, the Federal Circuit Court and the National Native Title Tribunal.

156.             New subsection 18ZI(2) would provide that the Federal Court CEO is responsible for appointing persons to perform family counselling and family dispute resolution services under the Family Law Act. The Federal Court CEO’s delegations power in relation to these functions would be limited so that delegations could only be made to the Family Court CEO and the Federal Circuit Court CEO in relation to their respective courts.

Item 14 - Paragraphs 11B(a) and (b)

157.             This Item would repeal existing paragraphs 11B(a) and (b) from the definition of ‘family consultant’. ‘Family consultant’ is currently defined in those paragraphs as a person who is either appointed under existing section 38N or appointed as a family consultant in relation to the Federal Circuit Court under the Federal Circuit Court Act.

158.             Existing paragraphs 11B(a) and (b) would be replaced with new paragraph (a) which would provide that a family consultant is appointed under new section 18ZH of the Federal Court Act. New section 18ZH, to be inserted by Item 43 of Schedule 1, would centralise powers of appointment of officers of the Federal Court, the Family Court, the Federal Circuit Court and the National Native Title Tribunal. It would provide that the Federal Court CEO is responsible for appointing officers of the Family Court and the Federal Circuit Court.  The Federal Court CEO’s delegations power in relation to these functions would be limited so that delegations could only be made to the Family Court CEO and the Federal Circuit Court CEO in relation to their respective courts.

Item 15 - Section 11B (note)

159.             This Item would remove a reference to Division 1A of Part 7 of the Federal Circuit Court Act, to reflect the establishment of separate positions for the Family Court CEO and the Federal Circuit Court CEO.

Items 16 and 17 - Subparagraph 11E(1)(e)(i) and subparagraph 11E(1)(e)(iii)

160.             Item 16 would repeal existing subparagraph 11E(1)(e)(i), which contains a reference to the nomination of a family consultant by the existing joint CEO of the Family Court and Federal Circuit Court. Subparagraph 11E(1)(e)(i) would be replaced with new subparagraphs (i) and (ia), which would provide that for matters before the Family Court, the court may seek the advice of a family consultant nominated by the CEO of the Family Court, and for matters before the Federal Circuit Court, the advice of a family consultant nominated by the CEO of the Federal Circuit Court. This would reflect the establishment of separate positions for the Family Court CEO and Federal Circuit Court CEO.

161.             Item 17 would make a corresponding amendment to refer to new subparagraph 11E(1)(e)(ia) in existing subparagraph 11E(1)(e)(iii).

Items 18, 19, 22, 24, 26, 28-32, 34, 38, 39, 42-52, 55, 58, 63, 71, 73, 76, 79, 80-82 and 86-88 - Section 20, paragraphs 21(3)(a) and (b), subsection 21B(1), (1A), (1B), (2), (3A) (4) and (5), subsection 22(2AAA), subsection 22(2AAB), subsection 22(2AAC), subsection 22(2AA) and subsection 22(2AF), subsection 22(2AFA), subsections 23(1), (2) and (3), section 24, section 26, paragraph 26E(b), subsection 26JA(2), section 26M, subsection 27(2), paragraph 30(b), subsections 37(1) and (2), paragraph 37A(14)(b), section 37B, section 37C, Division 1 of Part IVA (heading), subsection 38A(1), subsection 38A(3), section 38B, section 38D, subsection 38N(2), section 38N(6), subsection 38S(1), section 38W (heading), section 38W, subsection 38Y(2), subsection 94AAA(3), paragraph 123(2)(b), subsection 123(2A), subsection 124(3)

162.             These amendments would remove references in the Family Law Act to the title of ‘Chief Judge’ and ‘Deputy Chief Judge’.

163.             Existing section 20 of the Family Law Act defines the Family Court Chief Judge and Deputy Chief Judge. Existing subsections 21(3)(a) and (b) provide that the Chief Judge shall be called the Chief Justice and the Deputy Chief Judge shall be called the Deputy Chief Justice. New definitions of ‘Chief Justice’ and ‘Deputy Chief Justice’ would be inserted into existing section 4(1) by Items 5 and 7 of Schedule 2, respectively. The amendment would simplify the legislation so that the Chief Justice and Deputy Chief Justice are referred to only by these titles.

164.             These amendments would have no substantive effect on the roles or duties of the Chief Justice or the Deputy Chief Justice.

Items 21, 23, 25, 27, 33 and 35-37 - Section 20 (definition of Judge Administrator), paragraph 21(3)(c), subsection 21B(3), subsection 21B(3B), subsection 23(3), subsection 23(4), subsection 23(5), subsection 23(8)

165.             These Items would remove references to ‘Judge Administrator’, a position which is no longer used in the Family Court. Item 21 would repeal the definition of ‘Judge Administrator’ in existing section 20.

Items 20, 40 and 41 - Section 20 (definition of Judge), subsection 25(1) and section 26

166.             These Items would remove references to ‘Judge Administrator’, a position which is no longer used in the Family Court. They would also replace references to the ‘Chief Judge’ and ‘Deputy Chief Judge’ with ‘Chief Justice’ and ‘Deputy Chief Justice’.

Item 54 - Subsection 38A(2)

167.             This Item would amend existing subsection 38A(2) to clarify that the power of the Chief Justice to do all things necessary or convenient, including entering into contracts on behalf of the Commonwealth, is for the purpose in existing subsection 38A(1). Under existing subsection 38A(1), the Chief Justice is responsible for managing the administrative affairs of the court. This amendment would recognise the delineation between the management of administrative affairs in subsection 38A(1) and the management of those matters defined as corporate services in subsection 38A(1B), which would be the responsibility of the Federal Court CEO. Item 54 would also update the title of ‘Chief Judge’ in subsection 38A(2) to refer to ‘Chief Justice’.

Items 53 and 57 - After subsection 38A(1) and at the end of section 38A

168.             Item 53 would insert new subsections 38A(1A) and 38A(1B), to define corporate services and provide that they are excluded from administrative affairs. Existing section 38A(1) provides that the Chief Justice of the Family Court is responsible for managing the administrative affairs of the court. New subsection 38A(1B) would define corporate services to include communications, finance, human resources, information technology, library services, procurement and contract management, property, risk oversight and management and statistics.  This definition would be equivalent to that used for the Federal Court and Federal Circuit Court. For a more detailed outline of the definition see explanatory notes at Item 5 of Schedule 1.

169.             New paragraph 38A(1B)(f) would provide for the management of security contracts to sit with corporate services as part of ‘procurement and contract management’. The functions of marshals and sheriffs would remain within the administrative affairs of the courts. In practice, the corporate services team would be expected to work in close consultation with marshals and sheriffs in relation to security contracts.

170.             New paragraph 38A(1B)(j) would provide that corporate services also includes  further matters prescribed by legislative instrument. Item 57 would insert new subsection 38A(5) into the Federal Court Act, which would provide that the Attorney-General may, by legislative instrument, determine that matters are corporate services of the court.

171.             This would provide flexibility for the Attorney-General to determine the inclusion of further matters in the definition of corporate services in the future, should further matters be identified.

172.             The intended effect of new subsections 38A(1A) and 38A(1B) would be to delineate corporate services from the administrative affairs responsibilities of the Chief Justice of the Family Court under existing section 38A(1). The Federal Court CEO would be responsible for providing shared corporate services to the three courts under new section 18Z of the Federal Court Act, which would be inserted by Item 43 of Schedule 1. New subsection 18Z(3) would require the Federal Court CEO to consult with the Federal Court Chief Justice, together with the Family Court Chief Justice, the Federal Circuit Court Chief Judge, the Family Court CEO and the Federal Circuit Court CEO, in relation to the provision of corporate services.

173.             The merger of the corporate services functions would allow for efficiencies to be generated from the streamlining of existing services where appropriate. The merger is expected to deliver efficiencies to the courts of $9.4 million over the six financial years to 2020-21 and projected ongoing annual efficiencies of $5.4 million from this time.  These savings would be reinvested into the courts with the objective of contributing to placing them on a sustainable funding footing in the longer term.

174.             Item 57 would also insert notes by way of clarification under new section 38A:

a.        Note 1 would clarify that new Part IIB of the Federal Court Act contains provisions relating to the corporate services of the courts

b.        Note 2 would clarify that the Family Court CEO, officers of the Family Court and registry staff of the Family Court are officials of the listed entity for the purposes of the finance law referred to in new section 18ZB of the Federal Court Act, and

c.        Note 3 would clarify that the APS employees of the Family Court are part of the statutory agency for the purposes of the Public Service Act referred to in new section 18ZE of the Federal Court Act.

Item 56 - Subsection 38A(4)

175.             Item 56 would amend the specified contract amount in existing subsection 38A(4).

176.             Existing subsection 38A(4) provides that the Chief Justice of the Family Court may only enter into contracts on behalf of the Commonwealth for amounts exceeding $250,000, or a higher amount if prescribed, with the approval of the Attorney-General. Item 56 would amend this amount to be $1,000,000. A corresponding change would be made to section 18A of the Federal Court Act (see Item 7 of Schedule 1, above).

177.             This amendment would create consistency between the Federal Court, the Family Court and the Federal Circuit Court and reflect in primary legislation the amounts already prescribed by regulation 4.01 of the Federal Court and Federal Circuit Court Regulation 2012 and regulation 3A of the Family Law Regulations 1984

Item 59 - After section 38B

178.             Item 59 would insert new sections 38BAA and 38BAB.

New section 38BAA - Arrangements with other courts

179.             New section 38BAA would provide for the Chief Justice of the Family Court to make arrangements with the chief judicial officer of another court for the performance of functions by an officer of that other court on behalf of the Family Court. New subsection 38BAA(1) would set out the functions that may be performed. New subsection 38BAA(2) would provide that if such arrangement is in place, the officer may perform the function despite any other provision of the Family Law Act or any other Commonwealth Law. New subsection 38BAA(3) would provide that a function performed on behalf of the Family Court has effect as if the function had been performed by the Family Court.

180.             New section 38BAA would be modelled on existing section 90 of the Federal Circuit Court Act. A corresponding provision would be inserted into the Federal Court Act (see Item 11 of Schedule 1, above). This would create consistency between all three courts. 

New section 38BAB - Arrangements with other agencies or organisations

181.             New section 38BAB would provide for the Chief Justice of the Family Court to make arrangements with the chief executive officer of another agency of the Commonwealth, a State or a Territory, or with another organisation, for the performance of functions by an employee of the other agency or organisation on behalf of the Family Court. New paragraphs 38BAB(1)(c) and (d) set out the functions that may be performed, including receiving documents to be filed in the Court.

182.             New subsection 38BAB(2) would provide that if such an arrangement is in place, the employee may perform the function despite any other provision of the Family Law Act or any other Commonwealth Law. New subsection 38BAB(3) would provide that a function performed on behalf of the Family Court has effect as if the function had been performed by the Family Court and new subsection 38BAB(4) would provide for copies of any such arrangements to be publicly available for inspection.

183.             New section 38BAB would be modelled on existing section 18BA of the Federal Court Act and existing section 91 of the Federal Circuit Court Act. This would create consistency between all three courts. 

Item 60 - Division 1AA of Part IVA

184.             This Item would repeal existing Division 1AA of Part IVA, which contains existing section 38BAA and sets out the application of the finance law, including designating the structure, accountability and purposes of the existing Family Court and Federal Circuit Court entity under the finance law.

185.             New section 18ZB in Division 2 of Part IIB of the Federal Court Act, which would be inserted by Item 43 in Schedule 1, would provide for the application of the finance law to the merged courts administrative entity, which would commence on 1 July 2016. New Part IIB would include provisions for corporate services and other matters that relate to all three courts, including the application of the finance law.

186.             New section 18ZB would replace existing section 38BAA of the Family Law Act together with existing section 18BB of the Federal Court Act.  Existing section 18BB provides for the application of the finance law to the Federal Court entity as it currently exists (see Item 12 in Schedule 1, above).  The Family Court and Federal Circuit Court entity would be merged into the Federal Court entity to create a single courts administrative entity under the finance law from 1 July 2016.  The new entity would be known as the ‘Federal Court of Australia’.  Item 7 of Schedule 6 would provide that this entity is a continuation of the existing Federal Court administrative entity under section 18BB of the Federal Court Act. 

Items 61, 62, 64-66, 68 and 70 - Subsection 38C(1), subsection 38C(2),  subsection 38F(4), subsection 38G(2), subsection 38J(1), subsection 38L(1) and section 38M

187.             These amendments to Division 2 of Part IVA of the Family Law Act would, in conjunction with the amendments in Item 9 of Schedule 3, separate the role of the CEO of the Family Court and the Federal Circuit Court into two statutory positions. This would mean that the Family Court and Federal Circuit Court would no longer be required to share a CEO and each head of jurisdiction would have a dedicated CEO to assist them with managing the administrative affairs of their respective court.

188.             The amendments would provide for the Chief Justice of the Family Court to have sole responsibilities in relation to nominating an appointee for the role and other matters such as granting leave of absence, rather than exercising these jointly with the Chief Judge of the Federal Circuit Court.

189.             The CEO roles would encompass assisting heads of jurisdiction with administrative affairs of the court, together with the functions of family consultants. As the courts would become a single administrative entity, the Family Court and Federal Circuit Court CEOs would not be the head of the administrative entity for the purposes of the finance law and Public Service Act.  However, relevant delegations under these Acts would be made by the Federal Court CEO to support the other CEOs’ administrative affairs functions. 

190.             Item 61 would give effect to the new position title by omitting the words ‘and the Federal Circuit Court’ from the title in existing subsection 38C(1).

191.             Item 62 would amend existing subsection 38C(2) to provide the Family Court Chief Justice the ability to nominate his or her own appointee for the role of CEO. Nominations are currently made jointly with the Federal Circuit Court Chief Judge.

192.             Items 64, 65, 66, 68 and 70 would reflect the separation of the role of CEO by removing references to the Chief Judge of the Federal Circuit Court.

193.             These Items would also amend the provisions to reflect the change in terminology from ‘Chief Judge’ to ‘Chief Justice’.

Item 67 - At the end of subsection 38K(2)

194.             This Item would add a new ground requiring the Governor-General to terminate the appointment of the Chief Executive Officer.

195.             This Item would add a new paragraph 38K(2)(e) which would require the Governor-General to terminate the appointment of the CEO if he or she fails, without reasonable excuse, to comply with section 29 of the finance lawor rules made for the purposes of that section.

196.             This amendment would be in line with the amendment at Item 69 of Schedule 2 which would provide that the CEO is subject to section 29 of the finance law. This is necessary as the CEO would not be the ‘accountable authority’ for the purpose of the finance law.

Item 69 - Subsections 38L(2) and (3)

197.             This Item would repeal existing subsections 38L(2) and 38L(3) and replace them with subsections reflecting that the Family Court and the Federal Circuit Court would each have separate CEOs. It would also remove the exemption from section 29 of the finance law .

198.             Existing subsection 38L(3) provides that section 29 of the finance law, which deals with the duty to disclose interests, does not apply to the CEO.

199.             New subsection 38L(3) would provide that subsections 38L(1) and 38L(2) would apply in addition to section 29 of the finance law. This amendment is necessary as the establishment of the merged courts administrative entity under the finance law would mean that the Family Court CEO would no longer be prescribed as accountable authority under the finance law.

200.             This Item would also make amendments to reflect the change in terminology from ‘Chief Judge’ to ‘Chief Justice’, with ‘Chief Justice’ defined in a new definition in subsection 4(1).

Items 72 and 75 - Subsection 38N(3) and sections 38Q and 38R

201.             Item 72 would repeal existing subsection 38N(3) which provides for officers of the Family Court to be appointed by the existing CEO of the Family Court and Federal Circuit Court.

202.             Item 75 would repeal existing sections 38Q and 38R. Existing section 38Q establishes the existing statutory agency for the purposes of the Public Service Act, comprising the existing CEO of the Family Court and Federal Circuit Court and staff assisting the CEO.  Existing section 38R provides for the engagement of consultants by the Family Court and Federal Circuit Court CEO.

203.             The new section 18ZE in Division 2 of Part IIB of the Federal Court Act, which would be inserted by Item 43 in Schedule 1, would provide for the establishment of a statutory agency for the merged courts.  This section would replace existing section 38Q of the Family Court Act and section 18Q of the Federal Court Act.  The Family Court and Federal Circuit Court statutory agency would be merged into the Federal Court statutory agency to create a single courts statutory agency from 1 July 2016.  Item 9 of Schedule 6 would provide that this agency is a continuation of the existing Federal Court statutory agency under section 18Q of the Federal Court Act. 

204.             Existing subsection 38N(3) and section 38R would be repealed, as the powers in respect of appointment and the engagement of consultants, family counsellors and family dispute resolution practitioners, would be amended to reflect the structure of the merged entity and the responsibilities of the Federal Court CEO. These matters would be reflected in new sections 18ZH (appointment), 18ZE and 18ZI (engagement of consultants, family counsellors and family dispute resolution practitioners) (see Item 43 of Schedule 1, above).

205.             These functions would be centralised because they relate to the functions of the administrative head of the organisation under the finance law and the Public Service Act (referred to in the respective acts as the accountable authority and the agency head). The Federal Court CEO would hold these powers for the merged administrative courts entity. However, in practice the Federal Court CEO would delegate functions relevant to the administrative affairs of the Family Court and the Federal Circuit Court to the Family Court CEO and the Federal Circuit Court CEO, respectively (see Item 43 of Schedule 1, above). The Federal Court CEO’s delegations power in relation to these functions would be limited so that delegations could only be made to the Family Court CEO and Federal Circuit Court CEO in relation to their respective courts.  Powers to subdelegate in relation to the powers of appointment and the engagement of consultants, family counsellors and family dispute resolution practitioners would be provided in new section 18ZJ. Subsection 78(9) of the Public Service Act would allow the Family Court CEO and the Federal Circuit Court CEO to subdelegate powers under the Public Service Act. 

Item 74 - Subsection 38N(6)

206.             This Item would amend existing subsection 38N(6) which provides for the Family Court CEO, on behalf of the Chief Justice, to arrange with an agency head, or with an authority of the Commonwealth, for the services of officers or employees of the agency or authority to be made available for the purposes of the Court. It would clarify that such arrangements would be for the purposes of the administrative affairs of the Family Court and not related to corporate services.

Items 77 and 78 - Subsection 38S(1) (note) and at the end of section 38S

207.             Item 77 would repeal the note under existing subsection 38S(1), which provides that a report prepared under section 46 of the finance law may be included in the annual report prepared under existing section 38S.

208.             Item 78 would insert new subsection 38S(4), which would provide that a report prepared under section 38S may be included in a report prepared by the Federal Court CEO and given to the Attorney-General under section 46 of the finance law . The Federal Court CEO, as accountable authority, would be required to prepare the report under the finance law for the merged administrative courts entity referred to in new section 18ZB (see Item 43 of Schedule 1, above).

209.             The intention of these amendments would be to provide flexibility for the annual report prepared on the management of the administrative affairs of the Family Court to be included as a volume within the merged administrative entity’s report, to avoid the duplication of financial statements and other information required to be included in the administrative entity’s report under the finance law and in accordance with the Requirements for Annual Reports approved by the Joint Committee of Public Accounts and Audit.

210.             Corresponding amendments would be made to existing section 18S of the Federal Court Act and existing section 117 of the Federal Circuit Court Act (see Items 37 and 38 of Schedule 1, and Items 15 and 16 of Schedule 3, respectively). 

Item 83 - Subsection 102Q(1) (paragraph (b) of the definition of appropriate court official )

211.             This Item would amend the definition of ‘appropriate court official’ in subsection 102Q(1) to provide that in relation to the Federal Circuit Court it refers to the CEO and Principal Registrar of the Court. This would reflect the separation of the existing role of the CEO of the Family Court and the Federal Circuit Court into two statutory positions.

Items 84 and 85 - Subparagraphs 123(1)(sda)(i) and (sdb)(i) and paragraphs 123(1)(sea) and (seb)

212.             These Items would update references to the legislation under which family consultants and family dispute resolution practitioners are engaged, to reflect the centralising of powers to engage consultants for the merged entity in new section 18ZI of the Federal Court Act.

Part 2 - Amendments Commencing 1 January 2018

Overview

213.             This Part contains amendments to the Family Court Act that would commence on 1 January 2018. The amendments would combine the roles of Family Court CEO and Family Court Principal Registrar into a single role of CEO and Principal Registrar.

Amendments to the Family Law Act 1975

Items 89 to 103 - Subsection 4(1) (definition of Chief Executive Officer) and paragraph (a) of the definition of Registrar), section 20, subsection 37(2), subsection 37(3), subsection 37A(15), subsections 37B(1), (2), (3), (4) and (4A), section 37C, section 38C, paragraph 38N(1)(a), subsection 102Q(1) (paragraph (a) of the definition of appropriate court official).

214.             These Items would amend the title of the Family Court Chief Executive Officer to the Family Court Chief Executive Officer and Principal Registrar from 1 January 2018.

215.             This would allow a transitional period where these roles would be performed by separate officeholders before the roles of the Principal Registrar of the Family Court and the CEO of the Family Court are merged on 1 January 2018. This transitional period would provide sufficient time to appoint a person with appropriate legal as well as management and administration expertise to the combined role.

216.             Item 101 would repeal existing section 38C which provides for the appointment of the CEO of the Family Court. It would insert a new section 38C which would provide for the appointment to the new combined role of CEO and Principal Registrar of the Family Court, on the nomination of the Chief Justice. This would mean that the role of CEO of the Family Court would cease and a new nomination and appointment would be required for the combined role.

Schedule 3 - Amendments Relating to the Federal Circuit Court

Part 1 - Amendments Commencing on 1 July 2016

Overview

217.             Part 1 of Schedule 3 to the Bill would amend the Federal Circuit Court Act. Key changes would include:

a.        Amendments to Part 7 of the Act, which relate to the management of the Federal Circuit Court, which would:

                                                               i.       provide that the administrative affairs of the Court, which the Chief Justice is responsible for managing, exclude corporate services (Item 5 of Schedule 3)

                                                             ii.       define corporate services, which would be the responsibility of the Federal Court CEO (Item 5 of Schedule 3)

                                                           iii.       provide the Federal Circuit Court with its own independent CEO, who would be responsible for assisting the Chief Judge with the administrative affairs of the Court, by inserting provisions for the establishment of the role modelled on those of the current Family Court and Federal Circuit Court CEO (Item 9 of Schedule 3), and

                                                           iv.       facilitate the establishment of the Federal Court, Family Court and Federal Circuit Court as a single administrative entity under the finance law, through the repeal of provisions that would be included jointly for the three courts in the new Part IIB of the Federal Court Act (Items 10, 12, 13 and 14 of Schedule 3).

Amendments to the Federal Circuit Court of Australia Act 1999

Items 1, 2 and 3 - Section 5

218.             These Items would insert new definitions into the dictionary in existing section 5 to reflect new concepts and positions in the merged courts administrative entity.

219.             Item 1 would insert a new definition for ‘administrative affairs’ of the court. ‘Administrative affairs’ would have a meaning affected by the new subsection 89(2), which would exclude ‘corporate services’ from the definition of administrative affairs. ‘Corporate services’ would be defined in new subsection 89(2A) (see Item 5 of Schedule 3, below).

220.             Item 2 would insert a new definition of ‘Chief Executive Officer’ for the Federal Circuit Court. This would establish a separate office of the Federal Circuit Court CEO (see Item 9 of Schedule 3, below). The Family Court and Federal Circuit Court currently share a CEO. Item 4 of Schedule 2 would amend the existing definition for the joint CEO role.

221.             Item 3 would insert a new definition for ‘corporate services’, which would have the meaning given in new subsection 89(2A) (see Item 5 of Schedule 3, below).

Item 4 - Division 1 of Part 7

222.             This Item would repeal the heading of Division 1 of Part 7 and insert a new heading ‘Management responsibilities of the Chief Judge and the Chief Executive Officer’. This amendment would correspond with the establishment of the separate office of Federal Circuit Court CEO (see Item 9 of Schedule 3, below).

Items 5 and 7 - After subsection 89(1) and at the end of section 89

223.             Item 5 would insert new subsections 89(2) and 89(2A), to define corporate services and provide that they are excluded from administrative affairs. Existing subsection 89(1) provides that the Chief Justice of the Federal Circuit Court is responsible for managing the administrative affairs of the court. New subsection 89(2A) would define corporate services to include communications, finance, human resources, information technology, library services, procurement and contract management, property, risk oversight and management and statistics.  This definition would be equivalent to that used for the Federal Court and Family Court. For a more detailed outline of the definition see explanatory notes at Item 5 of Schedule 1.

224.             New paragraph 89(2A)(j) would provide that corporate services also includes further matters prescribed by legislative instrument. Item 7 would insert new subsection 89(5) into the Federal Circuit Court Act, which would provide that the Attorney-General may, by legislative instrument, determine that matters are corporate services of the court.

225.             This would provide flexibility for the Attorney-General to determine the inclusion of further matters in the definition of corporate services in the future, should further matters be identified.

226.             The intended effect of new subsections 89(2) and 89(2A) would be to delineate corporate services from the administrative affairs responsibilities of the Chief Justice of the Family Court under existing section 89(1). The Federal Court CEO would be responsible for providing shared corporate services to the three courts under new section 18Z of the Federal Court Act, which would be inserted by Item 43 of Schedule 1. New subsection 18Z(3) would require the Federal Court CEO to consult with the Federal Court Chief Justice , together with the Family Court Chief Justice, the Federal Circuit Court Chief Judge, the Family Court CEO and the Federal Circuit Court CEO, in relation to the provision of corporate services.

227.             The merger of the corporate services functions would allow for expected efficiencies to be generated from the streamlining of existing services where appropriate. The merger is expected to deliver efficiencies to the courts of $9.4 million over the six financial years to 2020-21 and projected ongoing annual efficiencies of $5.4 million from this time.   These savings would be reinvested into the courts with the objective of contributing to placing them on a sustainable funding footing in the longer term. Item 7 would also insert notes by way of clarification under new section 89:

a.        Note 1 would clarify that new Part IIB of the Federal Court Act contains provisions relating to the corporate services of the courts

b.        Note 2 would clarify that the Federal Circuit Court CEO, officers and staff of the Federal Circuit Court are officials of the listed entity for the purposes of the finance law referred to in new section 18ZB of the Federal Court Act, and

c.        Note 3 would clarify that the APS employees of the Federal Circuit Court are part of the statutory agency for the purposes of the Public Service Act referred to in new section 18ZE of the Federal Court Act.

Item 6 - Subsection 89(3)

228.             This Item would amend existing subsection 89(3) to clarify that the power of the Chief Judge to do all things necessary or convenient, including entering into contracts on behalf of the Commonwealth, is for the purpose in existing subsection 89(1). Under existing subsection 89(1), the Chief Judge is responsible for managing the administrative affairs of the court. This amendment would recognise the delineation between the management of administrative affairs in subsection 89(1) and the management of those matters defined as corporate services in subsection 89(2A), which would be the responsibility of the Federal Court CEO.

Item 8 - Paragraph 90(1)(f)

229.             This item would amend existing paragraph 90(1)(f) to clarify that arrangements made by the Chief Judge of the Federal Circuit Court with the chief judicial officer of another court for the performance of functions by an officer of that other court on behalf of the Federal Circuit Court, include the performance of such other non-judicial functions as the Chief Judge considers appropriate, rather than the existing more general reference to the Federal Circuit Court.

230.             New section 18BAA in the Federal Court Act and new section 38BAA in the Family Law Act would be modelled on existing section 90 of the Federal Circuit Court Act (see Item 11 of Schedule 1 and Item 59 of Schedule 2, respectively). This would create consistency between all three courts. 

Item 9 - After section 96

231.             This Item would insert new sections 96A to 96J that, in conjunction with amendments to Division 2 of Part IVA of the Family Law Act (see Items 61, 62, 64, 65, 66, 68 and 70 of Schedule 2), would separate the existing combined role of the CEO of the Family Court and the Federal Circuit Court into two statutory positions. This would mean that the Family Court and Federal Circuit Court would no longer be required to share a CEO.

232.             The CEO roles would encompass assisting heads of jurisdiction with administrative affairs of the court, together with the functions of family consultants. Each head of jurisdiction would have a dedicated CEO to assist them with managing the administrative affairs of their respective court.

233.             New subsection 96A(1) would provide for the establishment and appointment of the Federal Circuit Court CEO. New subsection 96A(2) would provide the Chief Judge the ability to nominate his or her own appointee for the role of CEO.

234.             The amendments would provide for the Chief Judge of the Federal Circuit Court to have sole responsibilities in relation to nominating an appointee for the role and functions such as granting leave of absence, rather than exercising these jointly with the Chief Justice of the Family Court.

235.             The provisions establishing the Federal Circuit Court CEO position would be equivalent to those for the CEO of the Family Court. New sections 96B, 96C, 96D, 96E, 96F, 96G, 96H and 96J would make provision for remuneration, terms and conditions of appointment, leaves of absence, resignation, outside employment, termination of appointment, disclosure of interests and appointment of an acting CEO.

Item 10 - Subsections 99(2), (3), (4), (5) and (7)

236.             This Item would repeal existing subsections 99(2), (3), (4) and (5), which provide for persons to be officers of both the Federal Circuit Court and the Federal Court, and officers of both the Federal Circuit Court and the Family Court. New section 18ZK of the Federal Court Act (Item 43 of Schedule 1, above), would provide for persons to be officers of one or more of the Federal Court, Family Court and Federal Circuit Court.

237.             This Item would also repeal existing subsection 99(7) which provides for officers of the Federal Circuit Court to be appointed by the existing CEO of the Family Court and Federal Circuit Court. The power of appointment would be provided for in new section 18ZH (see Item 43 of Schedule 1, above).

238.             Provisions for persons to be officers of more than one court and relating to appointments would be centralised because they relate to the functions of the administrative head of the organisation under the finance law and the Public Service Act (referred to in the respective acts as the accountable authority and the agency head). The Federal Court CEO would hold appointment powers for the merged administrative courts entity, as set out in new section 18ZH. However, in practice, the Federal Court CEO would delegate functions relevant to the administrative affairs of the Family Court and the Federal Circuit Court to the Family Court CEO and the Federal Circuit Court CEO respectively (see Item 43 of Schedule 1). The Federal Court CEO’s delegations power in relation to appointments would be limited so that delegations could only be made to the Family Court CEO and Federal Circuit Court CEO in relation to the respective courts. 

Item 11 - Section 100

239.             This Item would amend existing section 100 which provides for the Federal Circuit Court CEO, on behalf of the Chief Judge, to arrange with an Agency Head, or with an authority of the Commonwealth, for the services of officers or employees of the Agency or authority to be made available for the purposes of the Court. It would clarify that such arrangements would be for the purposes of the administrative affairs of the Federal Circuit Court and not related to corporate services.

Item 12 - Subsection 107(1)

240.             Item 12 would repeal existing subsection 107(1), which provides for the appointment of a Deputy Sheriff of the Federal Circuit Court. Item 12 could insert new subsection 107(1) which would provide that a person engaged as a Deputy Sheriff may be so engaged under the Public Service Act. This would provide consistency with the Family Law Act, which already provides that these officers may be engaged under the Public Service Act.

241.             Appointing officers as Deputy Sheriffs would be the responsibility of the Federal Court CEO, as reflected in new section 18ZH of the Federal Court Act (see Item 43 of Schedule 1, above).

242.             Appointment powers would be centralised because they relate to the functions of the administrative head of the organisation under the finance law and the Public Service Act (referred to in the respective acts as the accountable authority and the agency head). The Federal Court CEO would hold appointment powers for the merged administrative courts entity, as set out in new section 18ZH. However, in practice the Federal Court CEO would delegate functions relevant to the administrative affairs of the Family Court and the Federal Circuit Court to the Family Court and the Federal Circuit Court CEO, respectively (see Item 43 of Schedule 1, above). The Federal Court CEO’s delegations power in relation to appointments would be limited so that delegations could only be made to the Family Court CEO and Federal Circuit Court CEO in relation to the respective courts. 

Item 13 - Subsection 110(1)

243.             Item 13 would repeal existing subsection 110(1), which provides for the appointment of a Deputy Marshal of the Federal Circuit Court. Item 13 would insert new subsection 110(1) which would provide that a person engaged as a Deputy Marshal may be engaged under the Public Service Act. This would provide consistency with the Family Law Act, which already provides that these officers may be engaged under the Public Service Act.

244.             Appointing officers as Deputy Marshals would be the responsibility of the Federal Court CEO, as reflected in new section 18ZH of the Federal Court Act (Item 43 of Schedule 1, above).

245.             Appointment powers would be centralised because they relate to the functions of the administrative head of the organisation under the finance law and the Public Service Act (referred to in the respective acts as the accountable authority and the agency head). The Federal Court CEO would hold appointment powers for the merged administrative courts entity, as set out in new section 18ZH. However, in practice the Federal Court CEO would delegate functions relevant to the administrative affairs of the Family Court and the Federal Circuit Court to the Family Court and the Federal Circuit Court CEO, respectively (see Item 43 of Schedule 1, above). The Federal Court CEO’s delegations power in relation to appointments would be limited so that delegations could only be made to the Family Court CEO and Federal Circuit Court CEO in relation to the respective courts. 

Item 14 - Sections 112A and 115

246.             Item 14 would repeal existing section 112A which provides that the Federal Circuit Court registrars, Sheriff, Marshal, family consultants and staff are included in the statutory agency declared by existing section 38Q of the Family Law Act for the purposes of the Public Service Act.

247.             Item 14 would also repeal existing section 38R which provides for the engagement of consultants, and persons to perform family counselling services and family dispute resolution services, by the existing Family Court and Federal Circuit Court CEO.

248.             Existing sections 112A and 115 would be repealed, as the structure of the agency for the purposes of the Public Service Act and powers in respect of the engagement of consultants, family counsellors and family dispute resolution practitioners would be amended to reflect the structure of the merged courts administrative entity and the responsibilities of the Federal Court CEO. The officers and staff referred to in existing section 112A would be designated as employees of the merged courts administrative entity, as reflected in the centralised provision in new section 18ZE of the Federal Court Act (see Item 43 of Schedule 1, above). New section 18ZI would centralise the powers for the engagement of consultants, family counsellors and family dispute resolution practitioners for the new entity.

249.             These functions would be centralised because they relate to the functions of the administrative head of the organisation under the finance law and the Public Service Act (referred to in the respective acts as the accountable authority and the agency head).  The Federal Court CEO would hold these powers for the merged administrative courts entity. However, in practice the Federal Court CEO would delegate functions, including in relation to the engagement of consultants, relevant to the administrative affairs of the Family Court and the Federal Circuit Court to the Family Court and the Federal Circuit Court CEO, respectively (see Item 43 of Schedule 1, above). The Federal Court CEO’s delegations power in relation to these functions would be limited so that delegations could only be made to the Family Court CEO and Federal Circuit Court CEO in relation to the respective courts. 

Items 15 and 16 - Subsection 117(1) (note) and at the end of section 117

250.             Item 15 would repeal the note under existing subsection 117(1), which provides that a report prepared under section 46 of the finance law may be included in the annual report prepared under existing section 117.

251.             Item 16 would insert new subsection 117(4), which would provide that a report prepared under section 117 may be included in a report prepared by the Federal Court CEO and given to the Attorney-General under section 46 of the finance law . The Federal Court CEO, as accountable authority, would be required to prepare the report under the finance law for the merged administrative courts entity referred to in new section 18ZB (see Item 43 of Schedule 1, above).

252.             The intention of these amendments would be to provide flexibility for the annual report prepared on the management of the administrative affairs of the Federal Circuit Court to be included as a volume within the merged administrative entity’s report, to avoid the duplication of financial statements and other information required to be included in the administrative entity’s report under the finance law and in accordance with the Requirements for Annual Reports approved by the Joint Committee of Public Accounts and Audit.

253.             Corresponding amendments would be made to existing section 18S of the Federal Court Act and existing section 38S of the Family Law Act (see Items 37 and 38 of Schedule 1 and Items 77 and 78 of Schedule 2, respectively). 

Item 17 - Section 118 (heading)

254.             This Item would amend the heading of existing section 118 to refer to proceedings arising out of the administrative affairs of the Federal Circuit Court. Administrative affairs would be defined in section 5 (see Item 1 of Schedule 3, above). Proceedings in relation to corporate services would be provided for in new section 18ZA of the Federal Court Act (see Item 43 of Schedule 1, above).



 

Schedule 4 - Amendments Relating to the National Native Title Tribunal

Overview

255.             This Schedule would make amendments to the Native Title Act 1993 to:

a.           update references to the Chief Executive Officer and Principal Registrar and the Registrar, to reflect changes in the titles of these positions (Items 1-14, 16-19, 21, 23-26, 29-31, 33 and 34 of Schedule 4)

b.          reflect the new provisions in the Federal Court Act relating to the establishment of the merged courts administrative entity under the finance law (Items 15, 20, 22 and 27 of Schedule 4, and

c.           make other minor terminology updates and typographical corrections (Items 28 and 32 of Schedule 4).

Amendments to the Native Title Act 1993

Part 1 - Amendments

Items 1-14, 16- 19, 21, 23-26, 29-31, 33 and 34 - Section 63, subsection 64(4) (heading),  subsection 64(4), paragraphs 66(2)(b) and (2A)(b), subsection 66B(3) (heading), subsections 66B(3) and 66C(1) and (2), subsection 84C(3) (heading), subsection 84C(3), subsections 86B(2A) and (5B), paragraph 86B(6)(b), subsection 87(9), subsection 87A(3), subsection 87A(10), subdivision A of Division 4 of Part 6 (heading), section 129 (heading), section 129, section 129A (heading), section 129A, subsection 130(3), subsection 130(4) and 130(5), subsection 131A(1), subsection 131A(1) (note), subsection 131A(2), section 136, section 189A (heading), section 189A, section 222 (table), section 253

256.             These Items would make non-substantive changes to terminology to reflect title changes to the Registrar and Deputy Registrar roles. The Bill would update references to Registrar of the Federal Court, to refer to the retitled Federal Court Chief Executive Officer and Principal Registrar role; officers formerly titled as Deputy Registrars of the Federal Court would be retitled to Registrar.

257.             Item 34 would insert a definition of ‘Federal Court CEO’ which would mean the CEO and Principal Registrar of the Federal Court.

Item 15 - Subsection 128(2) (notes 1 and 2)

258.             Item 15 would repeal notes 1 and 2 to existing subsection 128(2). Existing notes 1 and 2 would be repealed and replaced by notes that would reflect the new Part IIB of the Federal Court Act (see Item 43 in Schedule 1, above):

a.        Note 1 would clarify that new Part IIB of the Federal Court Act contains provisions relating to the administrative affairs of the Tribunal

b.        Note 2 would clarify that the Native Title Registrar, Deputy Registrar and staff of the Tribunal are officials of the listed entity for the purposes of the finance law referred to in new section 18ZB of the Federal Court Act, and

c.        Note 3 would clarify that the APS employees of the Tribunal are part of the statutory agency for the purposes of the Public Service Act referred to in new section 18ZE of the Federal Court Act.

Item 20 - Subsection 130(2)

259.             This amendment would repeal subsection 130(2), which provides for Deputy Registrars of the National Native Title Tribunal to be appointed by the Registrar of the Federal Court. The power for the retitled Federal Court CEO to appoint Deputy Registrars of the National Native Title Tribunal would be inserted in new section 18ZH of the Federal Court Act (see Item 43 in Schedule 1, above). New section 18ZH would centralise powers of appointment of officers of the Federal Court, the Family Court, the Federal Circuit Court and the National Native Title Tribunal.

Item 22 - Subsection 130(3A)

260.             This amendment would repeal subsection 130(3A), which provides that for the purposes of the Public Service Act, the statutory agency under existing section 18Q of the Federal Court Act includes the Deputy Registrars and the staff assisting the National Native Title Tribunal. Existing subsection 130(3A) would be repealed, consistent with the repeal of existing section 18Q of the Federal Court Act. New section 18ZE of the Federal Court Act would establish the merged courts Statutory Agency for the purposes of the Public Service Act (see Item 43 in Schedule 1, above).

Item 27 - Section 132

261.             This amendment would repeal section 132 which provides for the Registrar of the Federal Court to engage consultants for the National Native Title Tribunal. This power for the retitled Federal Court CEO to engage consultants would be inserted in new section 18ZI of the Federal Court Act (see Item 43 in Schedule 1, above). New section 18ZI would centralise the powers for the engagement of consultants for the new merged courts administrative entity.

Item 28 - Section 136 (heading)

262.             This Item would repeal the heading of existing section 136 and substitute a new heading that refers to proceedings arising out of the administrative affairs of the National Native Title Tribunal rather than the administration of the Tribunal. This would reflect the references in the provision to ‘administrative affairs’ and not ‘administration’.   

Item 32 - Section 191

263.             This Item would correct a typographical error in this section to insert ‘the’ before the word ‘Registrar’.

Schedule 5 - Consequential And Other Amendments

Overview

264.             This Schedule would make consequential and other amendments to a number of Acts to:

a.        change the title of the Family Court Chief Judge to Chief Justice and the Family Court Deputy Chief Judge to Deputy Chief Justice (Items 1 to 12 of Schedule 5)

b.        remove obsolete references to Judge Administrator of the Family Court (Items 1, 3, 4, 8, 10, 11 and 12 of Schedule 5)

c.        update references to the Chief Executive Officer and Principal Registrar and the Registrar, to reflect changes in the titles of these positions (Items 13 to 29 of Schedule 5), and

d.        update references to the Chief Executive Officer and Principal Registrar of the Family Court from 1 January 2018, when the combined role would take effect (Items 30 to 32 of Schedule 5).

Part 1 - Family Court Chief Justice and Deputy Chief Justice and Judge Administrators

Administrative Decisions (Judicial Review) Act 1977

Items 1 and 2 - Subsection 3(3) (definition of Family Court Judge) and subparagraphs (zd)(i) and (ii) of Schedule 1

265.             These amendments would substitute references to the Chief Judge and the Deputy Chief Judge of the Family Court, with references to the Chief Justice and Deputy Chief Justice (see Schedule 2, above). These amendments would reflect the commonly used titles and have no substantive effect on the roles or duties of the retitled Chief Justice and Deputy Chief Justice of the Family Court. These amendments would also remove obsolete references to Judge Administrator of the Family Court, a position which is no longer used in the Family Court.

Australian Securities and Investments Commission Act 2001

Item 3 - Subsection 12BA(1) (definition of Family Court Judge)

266.             These amendments would substitute references to the Chief Judge and the Deputy Chief Judge of the Family Court, with references to the Chief Justice and Deputy Chief Justice (see Schedule 2, above). This amendment would reflect the commonly used titles and have no substantive effect on the roles or duties of the retitled Chief Justice and Deputy Chief Justice of the Family Court. This amendment would also remove obsolete references to Judge Administrator of the Family Court, a position which is no longer used in the Family Court.

Bankruptcy Act 1966

Item 4 - Subsection 5(1) (definition of Family Court Judge)

267.             This amendment would substitute references to the Chief Judge and the Deputy Chief Judge of the Family Court, with references to the Chief Justice and Deputy Chief Justice (see Schedule 2, above). This amendment would reflect the commonly used titles and have no substantive effect on the roles or duties of the retitled Chief Justice and Deputy Chief Justice of the Family Court. This amendment would also remove obsolete references to Judge Administrator of the Family Court, a position which is no longer used in the Family Court.

Child Support (Assessment) Act 1989

Item 5 - Subsection 102A(2)

268.             This amendment would substitute references to the Chief Judge of the Family Court, with references to Chief Justice (see Schedule 2, above). This amendment would reflect the commonly used title and have no substantive effect on the roles or duties of the retitled Chief Justice of the Family Court.

Child Support (Registration and Collection) Act 1988

Items 6 and 7 - Subsection 4(1) (definition of Judge) and subsection 107A(2)

269.             These amendments would substitute references to the Chief Judge of the Family Court, with references to Chief Justice (see Schedule 2, above). These amendments would reflect the commonly used title and have no substantive effect on the roles or duties of the retitled Chief Justice of the Family Court.

Competition and Consumer Act 2010

Item 8 - Section 130 (definition of Family Court Judge)

270.             This amendment would substitute references to the Chief Judge and the Deputy Chief Judge of the Family Court, with references to the Chief Justice and Deputy Chief Justice (see Schedule 2, above). This amendment would reflect the commonly used titles and have no substantive effect on the roles or duties of the retitled Chief Justice and Deputy Chief Justice of the Family Court. This amendment would also remove obsolete references to Judge Administrator of the Family Court, a position which is no longer used in the Family Court.

Court Security Act 2013

Item 9 - Section 5 (paragraph (a) of the definition of member)

271.             This amendment would substitute references to the Chief Judge and the Deputy Chief Judge of the Family Court, with references to the Chief Justice and Deputy Chief Justice (see Schedule 2, above). This amendment would reflect the commonly used titles and have no substantive effect on the roles or duties of the retitled Chief Justice and Deputy Chief Justice of the Family Court.

Judicial and Statutory Officers (Remuneration and Allowances) Act 1984

Item 10 - Part 2 of the Schedule, table Item dealing with Judge Administrator of the Family Court of Australia

272.             This amendment would remove an obsolete reference to Judge Administrator of the Family Court, a position which is no longer used in the Family Court.

Remuneration and Allowances Act 1990

Item 11 - Part 2 of Schedule 1, table Item dealing with Judge Administrator of the Family Court

273.             This amendment would remove an obsolete reference to Judge Administrator of the Family Court, a position which is no longer used in the Family Court.

Taxation Administration Act 1953

Item 12 - Section 14ZQ (definition of Family Court Judge)

274.             This amendment would substitute references to the Chief Judge and the Deputy Chief Judge of the Family Court, with references to the Chief Justice and Deputy Chief Justice (see Schedule 2, above). This amendment would reflect the commonly used titles and have no substantive effect on the roles or duties of the retitled Chief Justice and Deputy Chief Justice of the Family Court.

Part 2 - Chief Executive Officers - amendments commencing 1 July 2016

Aboriginal and Torres Strait Islander Act 2005

Items 13 and 14 - Clause 4 of Schedule 4 and clauses 13 and 22 of Schedule 4

275.             These amendments would substitute references to the Registrar of the Federal Court with references to the Chief Executive Officer and Principal Registrar and references to a Deputy Registrar of the Federal Court with references to a Registrar to reflect the retitling of this position (see Schedule 1, above).

Bankruptcy Act 1966

Items 15 and 16 - Subsection 5(1) (paragraph (a) of the definition of Registrar) and subsection 5(1) (paragraph (b) of the definition of Registrar)

276.             These amendments would substitute references to the Registrar of the Federal Court with references to the Chief Executive Officer and Principal Registrar and references to a Deputy Registrar of the Federal Court with references to a Registrar to reflect the retitling of this position (see Schedule 1, above).

Copyright Act 1968

Item 17 - Paragraph 169B(5)(c)

277.             This amendment would substitute a reference to the Registrar of the Federal Court with a reference to the Chief Executive Officer and Principal Registrar to reflect the retitling of this position (see Schedule 1, above).

Court Security Act 2013

Items 18 and 19 - Section 5 (table Items 2, 3 and 4 in the definition of administrative head) and section 5 (table Item 6 in the definition of administrative head)

278.             These amendments would substitute references to the Registrar of the Federal Court, Registrar of the Family Court and Registrar of the Federal Circuit Court with references to the CEO and Principal Registrar of the Federal Court, the CEO of the Family Court and the CEO and Principal Registrar of the Federal Circuit Court, to clarify that these officers are the administrative heads of their respective courts for the purpose of the Court Security Act. These amendments reflect the change in terminology for the most senior officer in each court to the CEO and Principal Registrar and in the case of the Family Court, to the CEO (noting this would be updated to the CEO and Principal Registrar for the Family Court from 1 January 2018 - see Item 31 of Schedule 5, below). 

Item 20 - Section 5 (after paragraph (b) of the definition of member)

279.             This Item would substitute a reference to a Registrar or Deputy Registrar of a court with a more general reference to the Chief Executive Officer, however described. This amendment would reflect the change in terminology for the most senior officer in each court to CEO and Principal Registrar.

Item 21 - Section 51 (table Item 1, column headed “Persons to whom administrative head of court may delegate”)

280.             This amendment removes the reference to those officers listed in the table being appointed under section 18N of the Federal Court Act. Powers of appointment for officers of all three courts would be centralised in new 18ZH of the Federal Court Act (see Item 43 in Schedule 1, above). A specific reference to the section under which these officers are appointed is not considered necessary and would be removed from the table.

Item 22 - Section 51 (table Item 2, column headed “Persons to whom administrative head of the court may delegate”)

281.             This amendment would omit a reference to the Marshal of the Family Court being appointed under section 38N of the Family Law Act. Powers of appointment for officers of all three courts would be centralised in new 18ZH of the Federal Court Act (see Item 43 in Schedule 1, above). A specific reference to the section under which this officer is appointed is not considered necessary and would be removed from the table.

Item 23 - Section 51 (table Item 3)

282.             This amendment would repeal a reference to the Military Court of Australia. The legislation establishing the Military Court of Australia was not passed and therefore this redundant reference would be removed.

Item 24 - Section 51 (table Item 5) (column headed “person to whom administrative head of the court may delegate”

283.             This amendment would omit a reference to the Marshal of the Federal Circuit Court being appointed under section 99 of the Federal Circuit Court Act. Powers of appointment for officers of all three courts would be centralised in new 18ZH of the Federal Court Act (see Item 43 in Schedule 1, above). A specific reference to the section under which this officer is appointed is not considered necessary and would be removed from the table.

Ombudsman Act 1976

Item 25 - Subsection 3(1) (paragraph (a) of the definition of chief executive officer of a court or tribunal)

284.             This amendment would update terminology to refer to the Chief Executive Officer and Principal Registrar of the High Court instead of the Clerk of the High Court.

Items 26 and 27 - Subsection 3(1) (paragraph (b) of the definition of chief executive officer of a court or tribunal) and subsection 3(1) (paragraphs (c) and (ca) of the definition of chief executive officer of a court or tribunal)

285.             These amendments would substitute references to the Registrar of the Federal Court, Registrar of the Family Court and Registrar of the Federal Circuit Court with references to the CEO and Principal Registrar of the Federal Court, the CEO of the Family Court and the CEO and Principal Registrar of the Federal Circuit Court, to reflect the retitling of these positions (see Schedules 1, 2 and 3, above).

Privacy Act 1988

Item 28 - Section 37 (table Item 4, column 2)

286.             This amendment would remove the reference to a Registrar, noting terminology changes at Schedule 1 above that designate the title of the most senior officer of the Federal Court, the Family Court or the Federal Circuit Court as the CEO and Principal Registrar.

Public Interest Disclosure Act 2013

Item 29 - Paragraph 73(2)(b)

This amendment would substitute the reference to the Registrar of the Federal Court with a reference to the Chief Executive Officer and Principal Registrar to reflect the retitling of this position (see Schedule 1, above).

Item 30 - Paragraph 73(2)(c)

287.             This Item would repeal paragraph 73(2)(c) which refers to the combined CEO position for the Family Court and Federal Circuit Court and would substitute paragraphs making separate references to the most senior officer in each court (see Item 7 in Schedule 2 and Item 2 in Schedule 3, above). For the Federal Circuit Court, this would refer to the Federal Circuit Court CEO and Principal Registrar, and for the Family Court, this would refer to the Family Court CEO (noting this would be updated to the CEO and Principal Registrar from 1 January 2018 - see Item 31 of Schedule 5, below).

Part 3 - Chief Executive Officers - amendments commencing 1 January 2018

Court Security Act 2013

Item 31 - Section 5 (table Item 3, in the definition of administrative head, column headed “Administrative head”)

288.             This amendment would reflect the updated title of the Family Court CEO from 1 January 2018, to the Chief Executive Officer and Principal Registrar. The separate positions of CEO of the Family Court and Principal Registrar of the Family Court would be merged to a single office known as the Chief Executive Officer and Principal Registrar on 1 January 2018, following a transitional period for this position (see Schedule 2, above).

Ombudsman Act 1976

Item 32 - Subsection 3(1) (paragraph (c) of the definition of chief executive officer of a court or tribunal)

289.             This amendment would reflect the updated title of the Family Court CEO from 1 January 2018, to the Chief Executive Officer and Principal Registrar. The separate positions of CEO of the Family Court and Principal Registrar of the Family Court would be merged to a single office known as the Chief Executive Officer and Principal Registrar on 1 January 2018, following a transitional period for this position (see Schedule 2, above).

Public Interest Disclosure Act 2013

Item 33 - Paragraph 73(2)(c)

290.             This amendment would reflect the updated title of the Family Court CEO from 1 January 2018, to the Chief Executive Officer and Principal Registrar. The separate positions of CEO of the Family Court and Principal Registrar of the Family Court would be merged to a single office known as the Chief Executive Officer and Principal Registrar on 1 January 2018, following a transitional period where these roles would be performed by separate officeholders (see Schedule 2, above).



 

Schedule 6 - application and transitional provisions

Overview

291.             This Schedule would provide application and transitional provisions. Key arrangements include:

a.      a framework to preserve and transition the appointments of the Registrar of the Federal Court,  court officers, together with the engagement of consultants (Part 2 of Schedule 6)

b.     provision for continuity of the listed entity for the purpose of the finance law (Part 3 of Schedule 6)

c.      provision for continuity of the statutory agency for the purpose of the Public Service Act (Part 4 of Schedule 6), and

d.     the power to make rules, in the form of a legislative instrument, prescribing additional matters of a transitional nature related to the amendments or repeals made by this Bill (Part 5 of Schedule 6).

Part 1 - Definitions

Item 1 - Definitions

292.             This Item would define several terms for the purposes of Schedule 6.

·           ‘applies’ would be defined as having the same meaning as in the Fair Work Act 2009 in relation to an enterprise agreement.

·          ‘commencement time’ would be defined to mean the commencement of Part 1 of Schedule 1, being 1 July 2016 when the merged administrative courts entity commences.

·          ‘covers’ would be defined as having the same meaning as in the Fair Work Act 2009 in relation to an enterprise agreement.

·          ‘enterprise agreement’ would be defined as having the same meaning as in the Fair Work Act 2009 .

·          ‘Family Court’ would be defined as meaning the Family Court of Australia.

·          ‘Family Court CEO’ would be defined as the Chief Executive Officer  within the meaning of the Family Law Act as in force immediately after the commencement time.

·          ‘Family Court CEO and Principal Registrar’ would be defined as the Chief Executive Officer within the meaning of the Family Law Act as in force immediately after the second commencement time.

·          ‘Family Law Act’ would be defined as meaning the Family Law Act 1975 .

·          ‘Federal Circuit Court’ would be defined as meaning the Federal Circuit Court of Australia.

·          ‘Federal Circuit Court Act’ would be defined as meaning the Federal Circuit Court of Australia Act 1999.

·          ‘Federal Court’ would be defined as meaning the Federal Court of Australia.

·          ‘Federal Court Act’ would be defined as meaning the Federal Court of Australia Act 1976.

·          ‘Federal Court CEO’ would be defined as meaning the Chief Executive Officer of the Federal Court as defined in the new definition in existing section 4 of the Federal Court Act (see Item 1 of Schedule 1, above).

·          ‘Federal Court Statutory Agency’ would be defined as meaning the statutory agency mentioned in new section 18ZE of the Federal Court Act (as amended).

·          ‘Native Title Act’ would be defined as meaning the Native Title Act 1993 .

·          ‘Old statutory agency’ would be defined as meaning the statutory agency mentioned in section 38Q of the Family Law Act immediately before the commencement time.

·          ‘Public Service Act’ would be defined as meaning the Public Service Act 1999 .

·          ‘rules’ would be defined as meaning the rules made under subitem 13(1) of Schedule 6.

·          ‘second commencement time’ would be defined to mean the commencement of Part 2 of Schedule 2, being 1 January 2018 when the roles of Family Court CEO and Principal Registrar of the Family Court would be merged. 

·          ‘transferred agreement’ would be defined in new paragraph 11(1)(b) of Schedule 6.

·          ‘transferred employee’ would be defined in subitem 10(1) of Schedule 6.

Part 2 - Names of offices, appointments etc.

293.             Part 2 would provide a framework to preserve and transition the appointments of the Registrar of the Federal Court and certain officers of the Federal Court, Family Court, Federal Circuit Court and Native Title Tribunal, together with the engagement of consultants.

Item 2 - Continuity of  offices after name change

294.             This Item would clarify that subsection 25B(1) of the Acts Interpretation Act applies for the purposes of alterations made by this Act to the names of the offices of Chief Judge of the Family Court, Deputy Chief Judge of the Family Court, Registrar of the Federal Court, Chief Executive Officer of the Family Court and Federal Circuit Court,  Chief Executive Officer of the Family Court and Deputy Registrar of the Federal Court referred to in new section 18ZB of the Federal Court Act (see Item 43 of Schedule 1, above).

295.             Subsection 25B(1) of the Acts Interpretation Act provides that where an Act alters the name of an office, then the office continues in existence under the new name so that its identity is not affected; and that in any Act, instrument under an Act, award or other industrial determination, other order, contract, legal or other proceedings, or other instrument, a reference to the office under the former name shall, except in relation to matters that occurred before the alteration took place, be construed as a reference to the office under the new name.

Item 3 - Continuity of appointment of Federal Court Registrar

296.             This Item applies to the appointment of the Registrar of the Federal Court if it is made and in force before 1 July 2016. The appointment would continue in force after that time as if the person had been appointed under section 18C of the Federal Court Act, as amended by this Act.

Item 4 - Continuity of appointment of court officers

297.             This Item applies to the appointments of officers of the Federal Court, the Family Court, the Federal Circuit Court and the National Native Title Tribunal that are made and in force before 1 July 2016. These appointments would continue in force after that time as if the appointments had been made by the Federal Court CEO under new subsection 18ZH(1) of the Federal Court Act, as amended by this Act. This would include acting appointments, noting subsection 33(4) of the Acts Interpretation Act. 

Item 5 - Continuity of engagement of consultants etc.

298.             This Item applies to the engagement of persons under sections 18R of the Federal Court Act, 38R of the Family Law Act, 115 of the Federal Circuit Court Act and 132 of the Native Title Act that are made and in force before 1 July 2016. The engagement would continue in force after that time as if they had been made by the Federal Court CEO under new section 18ZI of the Federal Court Act, as amended by this Act.

Item 6 - Things done by or in relation to the Principal Registrar of the Family Court

299.             This Item applies to anything done by or in relation to the Principal Registrar of the Family Court under the Family Law Act before 1 January 2018. Anything done by or in relation to the Principal Registrar of the Family Court would be taken to be done by the Family Court CEO and Principal Registrar under the Family Law Act (as in force after 1 January 2018).

Part 3 - Matters relating to the finance law

Item 7 - Continuity of listed entity

300.             This Item would provide that the listed entity mentioned in existing section 18BB of the Federal Court Act, which was in force immediately before 1 July 2016 when the merged administrative entity commences, would continue in existence after 1 July 2016 as the listed entity referred to in new section 18ZB of the Federal Court Act (see Item 43 of Schedule 1, above).

301.             This Item clarifies that the amendments made by the Act do not affect any instruments made before 1 July 2016 by, or on behalf of, the listed entity or the accountable authority of the listed entity. The amendments would also not affect the validity of anything done before 1 July 2016 by or in relation to the listed entity, the accountable authority or an official of the listed entity.

Item 8 - Reporting requirements for old listed entity

302.             This Item would preserve reporting requirements under sections 39, 42 and 46 of the finance law for the old listed entity, as if the old listed entity had not ceased to exist. This item would preserve the old listed entity, the accountable authority of the old listed entity and the reporting period of the old listed entity that ends on 30 June 2015 for these reporting purposes.

Part 4 - Matters relating to APS employment

Item 9 - Continuity of statutory agency

303.             This Item would provide that the statutory agency mentioned in existing section 18Q of the Federal Court Act, which was in force immediately before 1 July 2016 when the merged administrative entity commences, would continue in existence after 1 July 2016 as the Federal Court Statutory Agency (see definitions in Item 1 of Schedule 6, above).

304.             This Item clarifies that the amendments made by the Act would not affect any instruments made before 1 July 2016 by, or on behalf of the statutory agency, the Agency Head of, or an APS employee in, the statutory agency. The amendments would also not affect the validity of anything done before 1 July 2016 by, or in relation to the statutory agency, the Agency Head of, or an APS employee in, the statutory agency.

Item 10 - Transfer of APS employees to Federal Court Statutory Agency

305.             This item would clarify that a person who is an APS employee in the Family Court and Federal Circuit Court statutory agency (the old statutory agency) before 1 July 2016 is moved to the Federal Court statutory agency on 1 July 2016 (see definitions in Item 1 of Schedule 6, above). These employees would be known as transferred employees.

306.             This Item would clarify that section 72 of the Public Service Act does not apply in relation to transferred employees.  This Item would also clarify that subsection 72(5A) of the Public Service Act would apply to a transferred employee in the same way as if the transferred employee had been moved to the Federal Court Statutory Agency under a determination made by the Australian Public Service Commissioner under paragraph 72(1)(a) of the Public Service Act.

Item 11 - Terms and conditions of employment for transferred employees

Transferring enterprise agreement

307.             This Item would provide that, for transferred employees, the enterprise agreement that applied to their employment in the old agency would be preserved in relation to their employment in the Federal Court Statutory Agency until the new agreement is made that covers the transferred employee’s employment in the Federal Court Statutory Agency from 1 July 2016. This Item would apply to employees of the Family Court and Federal Circuit Court whose employment in the old agency was covered by the agreement known as the Federal Magistrates Court of Australia and Family Court of Australia Enterprise Agreement 2011-2014 , or another enterprise agreement prescribed by the rules (known as the transferred agreement). The rule making power would allow a new agreement to be prescribed as the transferred agreement if one is settled by the Family Court and Federal Circuit Court prior to 1 July 2016. 

308.             This Item would also provide that written policies or guidelines made for the purposes of the transferred agreement continue in force after 1 July 2016 as if they had been made by the Federal Court CEO as the agency head of the Federal Court Statutory Agency.

Transferring APS determinations

309.             This Item would also preserve determinations of terms and conditions of employment that applied to a person in the old agency under subsection 24(1) of the Public Service Act, to provide that these would continue to apply in the Federal Court Statutory Agency from 1 July 2016.

Item 12 - Terms and conditions of employment for new employees

Transferred agreement to cover new employees

310.             This Item would apply if a person becomes an APS employee in the Federal Court Statutory Agency on or after 1 July 2016 and the transferred agreement applies to that employee.  This Item would clarify that the transferred agreement would apply to that person’s employment until another enterprise agreement is made that covers the new employee’s employment in the Federal Court Statutory Agency.

Only one agreement to apply to new employees

311.             This Item clarifies that should both the transferred agreement and the Federal Court agreement apply to a new employee when they become an employee in the Federal Court statutory agency, the Federal Court CEO may determine whether the transferred agreement or the Federal Court agreement would apply to the new employee. The Federal Court agreement is the enterprise agreement known as the Federal Court of Australia Enterprise Agreement 2011-2014 or another enterprise agreement prescribed by the rules. The rule making power would allow a new agreement to be prescribed as the transferred agreement if one is settled by the Federal Court prior to 1 July 2016.  This Item would also provide that the agreement that applies to the new employee continues to apply until another enterprise agreement is made that covers the new employee’s employment in the Federal Court statutory agency.

Rules

312.             This Item provides that rules may be made which prescribes circumstances where subitems (1) and (2) of Item 12 do not apply.

Delegation

313.             This Item provides that the Federal Court CEO may delegate the power to determine which agreement applies to a new employee to an SES employee in the Federal Court Statutory Agency, or an APS employee at Executive Level 2 or equivalent in the Federal Court Statutory Agency. 

Determination is not a legislative instrument

314.             This Item provides that a determination in the form of a written notice that the transferred agreement applies to a new employee, is not a legislative instrument. This provision would be included to assist readers, as the instrument is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

Part 5 - Transitional rules

Item 13 - Transitional rules

315.             This Item would permit the Minister to make rules, in the form of a legislative instrument, prescribing matters of a transitional nature related to the amendments or repeals made by this Bill. This clause would also prescribe limits on the rules that may be made, such as the rules may not create an offence or civil penalty.

316.             The ability to make transitional rules retrospectively under this Item would be limited to the commencement date of the Bill (1 July 2016), should there be a need to rectify an unforeseen matter that arises.