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Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018

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2016 - 2017 - 2018

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

Federal Circuit and Family court of australia (CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS) bill 2018

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, the Honourable Christian Porter MP)

 

           



Federal Circuit and Family court of Australia (CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS) bill 2018

 

GENERAL OUTLINE

1.                   The Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 (the Bill) makes consequential amendments and provides transitional provisions necessary to support the Federal Circuit and Family Court of Australia Bill 2018 (the FCFC Bill).

2.                   The FCFC Bill would bring the Family Court of Australia (the Family Court) and the Federal Circuit Court of Australia (the Federal Circuit Court) together to be known as the Federal Circuit and Family Court of Australia (FCFC). The FCFC would comprise two ‘divisions’. The Federal Circuit and Family Court of Australia (Division 1) (FCFC (Division 1)) would be a continuation of the Family Court. The Federal Circuit and Family Court of Australia (Division 2) (FCFC (Division 2)) would be a continuation of the Federal Circuit Court. This structural reform of the federal courts is intended: 

·                      to create a consistent pathway for Australian families in having their family law disputes dealt with in the federal courts

·                      to improve the efficiency of the federal court system, and

·                      to ensure outcomes for Australian families are resolved in the most timely, informed and cost effective manner possible.

3.                   To give effect to this structural reform, the Bill makes a number of amendments to Commonwealth laws to reflect and support the proposed operation of the FCFC Bill. These include:

·                      amending the Federal Court of Australia Act 1976 to establish the new Family Law Appeal Division in the Federal Court of Australia (the Federal Court)

·                      amending the Family Law Act 1975 to ensure that it continues to operate effectively in the context of the FCFC

·                      amending court-related Regulations and Rules of Court to ensure that they continue to operate effectively following the commencement of the FCFC and the Family Law Appeal Division of the Federal Court, and

·                      making minor consequential amendments to other Commonwealth Acts and relevant subordinate legislation (to accommodate references to the FCFC and the Family Law Appeal Division of the Federal Court).

4.                   As part of these amendments, the appellate function of the Family Court would largely be removed and placed in the new Family Law Appeal Division of the Federal Court. The FCFC (Division 1) would only retain a limited appellate jurisdiction to hear appeals from State and Territory courts of summary jurisdiction exercising federal family law jurisdiction. As there will be significantly fewer appeals handled by the FCFC (Division 1), these amendments enable the existing judicial resources of the Family Court to be refocussed to finalise more first instance family law matters and to clear the backlog of pending matters.

5.                   The Family Law Appeal Division of the Federal Court would be given appellate jurisdiction in relation to appeals from judgments of the FCFC (Division 1) and FCFC (Division 2) as well as appeals from judgments of the Family Court of Western Australia in relation to federal family law matters. Importantly, amendments in the Bill would provide for the process, procedure and management of the Family Law Appeal Division. The conferral of family law jurisdiction on the Federal Court is not intended to impact on its general federal law caseload or operations.

6.                   This Bill would also ensure that appropriate transitional arrangements are in place for matters before the federal courts as at the date of commencement of the FCFC Act. In particular, this Bill:

·                      provides a framework to preserve and transition the title and appointments of the Chief Justice and the Deputy Chief Justice of the Family Court, Senior Judges and Judges of the Family Court and certain other personnel of the Family Court to the FCFC (Division 1) (Part 2 of Schedule 10)

·                      provides a framework to preserve and transition the title and appointments of the Chief Judge and Judges of the Federal Circuit Court and certain other personnel of the Federal Circuit Court to the FCFC (Division 2) (Part 3 of Schedule 10)

·                      provides transitional arrangements for family law appeals which are on foot in the Family Court as at 1 January 2019, as well as appeals which are eligible to be filed as at 1 January 2019

·                      provides transitional arrangements for appeals which would otherwise be impacted as a result of the transfer of appellate jurisdiction from the Appeal Division of the Family Court to the Family Law Appeal Division of the Federal Court (Part 4 of Schedule 10).

7.                   Fo r the avoidance of doubt, any first-instance proceedings on foot in the Family Court or the Federal Circuit Court as at the date of commencement of the FCFC Act would be heard in the FCFC (Division 1) or the FCFC (Division 2), respectively. This arrangement appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2) under the FCFC Act.

8.                   The establishment of the FCFC and the creation of the Family Law Appeal Division in the Federal Court will increase efficiencies, reduce delays, and lead to better outcomes in the family law jurisdiction of the federal court system, particularly for those families interacting with the Courts during stressful and difficult periods in their lives. Together, these changes will further support the long term financial sustainability of the federal court system, building upon court reform work undertaken in the context of the 2015-16 Budget and aligning with ongoing efficiency work of the federal courts.

FINANCIAL IMPACT

9.                   As part of the 2018-19 Budget, $4.0 million was allocated to assist with the implementation costs of the structural reform of the federal courts.

10.               Bringing the Federal Circuit Court and the Family Court together in the FCFC is expected to deliver efficiencies to the courts of $3.0 million over the forward estimates. These efficiencies will be reinvested in the courts to further enhance their capacity to provide services.

11.               Family law fees have been calculated to be harmonised between the FCFC (Division 1) and FCFC (Division 2) but set at a level that maintains (rather than increases or decreases) total fee revenues.

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018

1.                   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

2.                   The Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 (the Bill) makes the necessary amendments to other Commonwealth Acts and Regulations affected by the passage of the Federal Circuit and Family Court of Australia Bill 2018 (the FCFC Bill) . In particular, the Bill establishes the Family Law Appeal Division in the Federal Court of Australia (Federal Court) and provides the Family Law Appeal Division appellate jurisdiction in relation to family law appeals from the FCFC as well as some appeals from the Family Court of Western Australia. The Bill also reforms transfer provisions by creating a power that enables the Federal Court to ‘uplift’ matters that are not family law or child support matters from the FCFC (Division 2), makes amendments to various regulations and rules relating to the family law system, and provides for transitional arrangements for the introduction of the Federal Circuit and Family Court of Australia (FCFC).

3.                   Many of the amendments required to other legislation are nominal: references to the Family Court or the Federal Circuit Court of Australia need to be updated to refer to the FCFC (Division 1) or the FCFC (Division 2), respectively. As such, there are many rights that are tangentially engaged by the Bill, due to the legislation it amends. This tangential engagement with rights is not discussed in this statement of compatibility, as directed by the Committee. [1] However, this Bill does also make a number of substantive changes.

4.                   This Bill amends the Federal Court of Australia Act 1976 (Federal Court Act) to create the Family Law Appeal Division in the Federal Court and correspondingly amends the Family Law Act 1975 (Family Law Act) to remove the majority of  the appellate jurisdiction of the FCFC (Division 1). Appeals from FCFC family law or child support decisions would be heard by the Family Law Appeal Division; accordingly, new jurisdiction would be conferred on the Federal Court to reflect this. However, by creating the new Family Law Appeal Division, it is not foreseen that the general federal law workload of the Federal Court will be impacted, or that the Federal Court would hear first instance family law or child support matters. This Bill also provides for appeals from federal family law decisions of the Family Court of Western Australia to be heard in the Family Law Appeal Division, as the current Appeal Division in the Family Court will cease to exist following the passage of the Federal Circuit and Family Court of Australia Bill 2018.

5.                   For general federal law matters (not including family law or child support), this Bill provides for transfers to be made from FCFC (Division 2) to the Federal Court, either pursuant to an order from the Federal Court (known as the ‘uplift power’) or an order from the FCFC (Division 2).

6.                   This Bill also amends various rules, including the Federal Court Rules 2011 , Family Law Rules 2004 , the Federal Circuit Court Rules 2001 , and creates Rules of Court for both divisions of the FCFC, and for other courts exercising jurisdiction under the Family Law Act. Many of the changes are nominal, by updating references to the Family Court or the Federal Circuit Court. More substantively, the amendments to the rules account for the new transfer provisions, the creation of the Family Law Appeal Division, and accommodate the case management provisions in the Federal Circuit and Family Court of Australia Bill 2018. The Bill also amends fees payable in respect of family law matters.

7.                   Finally, this Bill makes arrangements to manage the transition from the Family Court and the Federal Circuit Court to the FCFC.

Human rights implications

8.                   The Bill directly engages the following human rights:

·                      right to a fair and public hearing: Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR)

·                      right to an effective remedy: Article 2(3) of the ICCPR

·                      rights of parents and children: Article 24(1) of the ICCPR, and Article 3 of the Convention on the Rights of the Child (CRC)

·                      right to respect for the family: Article 23 of the ICCPR

·                      elimination of discrimination against women: Articles 2 and 26 of the ICCPR, and Articles 2, 3 and 5 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

·                      right to security of the person: Article 9 of the ICCPR.

Right to a fair and public hearing - Article 14(1) of the ICCPR

9.                   Article 14(1) of the ICCPR enshrines the right of a person to have a fair and public hearing by a competent, independent and impartial tribunal established by law. As noted in General Comment No 32, an important aspect of the fairness of a hearing is its expeditiousness. [2] This right is engaged through the limiting of appeals from certain decisions through the imposition of requirements for leave to appeal or preventing appeals against certain procedural or interlocutory decisions, creating the capacity for appellate jurisdiction to be exercised by a single Judge, and by ensuring that a consistent set of family law fees will apply across the federal family law courts.

Leave to appeal from certain decisions

10.               Sub-items 227(4) and (5) and item 228 promote the right to a fair hearing under Article 14 of the ICCPR by facilitating the expeditiousness of the appeal system, and thus ensuring the right to a fair hearing when seeking review of a decision. These items provide circumstances in which an appeal must not be brought, or circumstances in which an appeal can only be brought with leave of the Court. Sub-items 227(4) and (5) relate to interlocutory decisions, which are not determinative of a litigant’s final rights. Similarly, item 228 of Schedule 1, Part 1, read alongside item 57 of Schedule 3, Part 1 limits a litigant’s ability to appeal interlocutory decisions that do not relate to child welfare matters. By circumscribing a litigant’s ability to appeal [3] an interlocutory decision, unnecessary appeals will not be filed with the Family Law Appeal Division. These items allow court resources to be better allocated to litigants who need to access their right to a fair hearing and have their final rights determined. As such, sub-items 186(4) and (5) promote the right to a fair hearing under Article 14 of the ICCPR.

Capacity for appellate jurisdiction to be exercised by a single Judge

11.               With the conferral of appellate jurisdiction on the Federal Court in respect of appeals from family law and child support proceedings in the FCFC (Division 1) and the FCFC (Division 2), Division 2 of Part III of the Federal Court Act (‘Appellate and related jurisdiction (civil proceedings)’) will  apply. Specifically, subsection 25(1AA)  would provide that in an appeal from FCFC (Division 2), the appellate jurisdiction of the Federal Court is to be exercised by a single Judge, unless a Judge considers it appropriate for the appellate jurisdiction to be exercised by a Full Court. This arrangement departs from current practice in the case of appeals from the FCFC (Division 2) to the Family Court. Section 94AAA(3) of the Family Law Act currently provides that in an appeal from the Federal Circuit Court the appellate jurisdiction of the Family Court is to be exercised by a Full Court, unless the Chief Justice considers it appropriate for the appellate jurisdiction of the Court to be exercised by a single Judge. This amendment engages with the right to a fair hearing by remedy under Article 14 of the ICCPR, as described in paragraph 9, by increasing the number of judicial resources available to hear both appellate and first instance matters, and thus increasing the capacity of the Court to resolve disputes expeditiously, for the ultimate benefit of litigants. [4]

Fees

12.               Part 1 of Schedule 3 of the Bill engages with the right to a fair and public hearing in Article 14(1) of the ICCPR. Part 1 of Schedule 3 amends the Family Law (Fees) Regulation 2012 to ensure that a consistent set of family law fees will apply across the federal family law courts. Family law fees are already largely consistent across the Family Court and Federal Circuit Court. For those family law court events that have different fees currently applying in the Family Court and Federal Circuit Court, fees will be set at a level that maintains and does not increase overall fee revenue.  New fee amounts have been calculated based on 2017-18 figures, with the result that:

·                      most fees are already consistent and will remain unchanged

·                      because significantly more family law matters are currently handled by the Federal Circuit Court, this will mean a small increase to the current Federal Circuit Court setting down and daily hearing fees, and a substantial decrease to the current Family Court setting down and daily hearing fees

·                      harmonising fees will see Federal Circuit Court setting down and daily hearing fees increase by approximately 7 per cent and Family Court setting down and daily hearing fees decrease by approximately 22 per cent

·                      given that divorce applications are handled almost exclusively by the Federal Circuit Court divorce application fees in the Family Court will reduce to Federal Circuit Court rates

13.               These changes will result in a fairer fee structure for Australian families, ensuring that they are more easily able to access the family law system. In turn, this can be seen as a promotion of the Article 14(1) of the ICCPR right to a fair and public hearing

Right to a fair and public hearing, and to an effective remedy - Article 2(3) and 14(1) of the ICCPR

14.               As noted above in paragraph 9, Article 14(1) of the ICCPR enshrines the right of a person to have a fair and public hearing by a competent, independent and impartial tribunal established by law. Article 2(3) requires States to ensure that any person whose rights and freedoms as stipulated in the ICCPR are violated, that person shall have an effective remedy, which is to be determined by a competent judicial authority. This Bill engages both of these rights by creating an ‘uplift power’ for the Federal Court, and through the transitional provisions.

‘Uplift power’

15.               Item 248 of Schedule 1 engages the right to a fair hearing, under Article 14 of the ICCPR, and engages the right to an effective remedy under Article 2(3) of the ICCPR. Item 248 creates an ‘uplift power’ for the Federal Court, which allows for a matter that is not a family law or child support proceeding to be transferred from the FCFC (Division 2) to the Federal Court, on the application of a party to the proceeding, or on the Federal Court’s own initiative. The factors to be taken into account in exercising this power are set out in item 1 of Schedule 6, which amends the Federal Court Rules 2011 . While the power for the FCFC (Division 2) to transfer a proceeding to the Federal Court on its own motion is retained, this power ensures that the transfer would not come into effect unless the Federal Court is satisfied that it is appropriate that the proceeding be heard in the Federal Court. These provisions are proposed to prevent circumstances in which matters can be transferred to the Federal Court only to be transferred back to the Federal Circuit Court. This unnecessarily increases delay [5] and cost, which can be prohibitive upon litigants in seeking an effective remedy. By providing the Federal Court an uplift power, item 248 rectifies these challenges currently faced by the courts and litigants and thus promotes both the right to a fair hearing under Article 14 and the right to an effective remedy under Article 2(3) of the ICCPR.

Transitional provisions

16.               The transitional provisions in Schedule 10 of the Bill engage with the right to a fair and public hearing in Article 14(1) of the ICCPR and the right to an effective remedy in Article 2(3) of the ICCPR. Schedule 10 provides the transitional arrangements for the court reform amendments. Schedule 10 provides for the continuity of the Family Court and the Federal Circuit Court, their Judges, staff, and decisions made by these offices. Schedule 10 also provides transitional arrangements for family law appeals that are on-foot as at 1 January 2019.

17.               Schedule 10 ensures that litigants who have filed an appeal in respect of their family law proceedings are not disadvantaged as a result of the commencement of this Bill on 1 January 2019 - either by having appeals that have been filed, but not substantively heard before 1 January 2019, transferred to the Family Law Appeal Division; or by having matters that have been substantively heard (either in whole or in part) on 1 January 2019 remain with the court in which they were filed (the Family Court).  To the extent possible, Schedule 10 ensures continuity in appeals proceedings that have commenced prior to the restructure taking effect, minimising confusion and unnecessary delay, and ensuring that litigants’ right to a fair hearing and to an effective remedy are promoted.

Rights of parents and children and right to respect for the family - Article 23 and 24(1) of the ICCPR, Article 3 of the CRC

18.               Article 24(1) of the ICCPR also provides for the protection of all children, without discrimination, by virtue of their status as minors. This is elaborated upon in Article 3 of the CRC, which requires that in all actions concerning children, including by courts, the best interests of the child are to be a primary consideration. The right to respect for the family is contained in Article 23 of the ICCPR, which recognises the family as the natural and fundamental group unit within society, and it is entitled to protection by society and the State.

Creation of the Family Law Appeal Division

19.               The Family Law Appeal Division provides the forum for the rights of parents and children, and the right to respect for the family to be realised. Items 192 and 227 of Schedule 1 confer family law jurisdiction on the Federal Court, which is to be exercised by its Family Law Appeal Division. As stipulated in item 227, the Federal Court has the power to exercise appellate jurisdiction in family law and child support matters in its Family Law Appeal Division in relation to determine appeals from judgments of the FCFC, a Family Court of a State, or the Supreme Court of a state or territory, exercising original or appellate jurisdiction under a range of acts and regulations relating to family law matters. The creation of the Family Law Appeal Division, in effect, recreates the appeal division in the Family Court, in the Federal Court. By providing for the right to review for such matters, the creation of the Family Law Appeal Division engages and promotes the rights of parents and children, and respect for the family by ensuring there is a forum for their rights to be realised, and a means to achieve correct and accountable decision-making in relation to family law matters.

Appealing from certain decisions

20.               As discussed above in paragraph 10, sub-items 227(4) and (5), as well as item 228, limit the ability of litigants to appeal from interlocutory decisions that do not relate to child welfare matters, by prohibiting appeal or providing that leave to appeal is required.

21.               As noted in footnote 3, by limiting the ability to appeal, the rights of parents, children and the family may also be limited, by either removing the forum to realise their rights (in sub-item 227(4)), or placing an extra burden to realise their rights (in the form of a leave to appeal requirement in sub-item 227(5) and item 228) in the short-term. However, sub-items 227(4) and (5) as well as item 228 pursue the legitimate objective, and are necessary to promote the finality of interlocutory decisions, which enhances the efficiency of reaching a final decision. These items are not determinative of a litigant’s final rights, as the Court’s final decision remains appealable and is therefore considered reasonable and proportionate. Further, notwithstanding subsection 227(5), no leave is required for an appeal under subsection 227(6), which allows appeals from interlocutory judgments that affect the liberty of an individual, or in proceedings relating to the contempt of court. Similarly, item 228 of Schedule 1, Part 1, read alongside item 57 of Schedule 3, creates an exception to the leave to appeal requirement for child welfare matters. This ensures the proportionality and reasonableness of subsection 227(5) and item 228.  Accordingly, sub-items 227(4) and (5), and item 228 are permissible limitations on Articles 23 and 24(1) of the ICCPR, and Article 3 of the CRC.

Appeals from courts of summary jurisdiction

22.               Item 72 of Schedule 1 relates to appeals from state or territory courts exercising summary jurisdiction under the Family Law Act to the FCFC or a state or territory Supreme Court. Item 72 provides that an appeal may be dismissed if there are no reasonable prospects of success. This may be considered a limitation on the rights of parents and children, as well as the right to the respect of the family, as it inhibits the ability of a litigant to challenge a decision of the FCFC. The legitimate objective of this provision is to ensure that the appeal system is not overburdened by litigants who are dissatisfied with a decision, despite its correctness under the law. On this basis, item 72 is reasonable and necessary to ensure the efficient and expeditious operation of the Courts for litigants in the family law system. There is a rational connection between item 72 and the objective, as it provides for the opportunity for an initial consideration of the grounds of appeal, before dismissing the appeal on the basis that it is without reasonable prospects of success. The provision is considered proportionate as applications for appeal receive an initial consideration prior to dismissal. Therefore, to the extent that item 72 is considered a limitation on Articles 23 and 24(1) of the ICCPR, and Article 3 of the CRC, the limitation is permissible.

Elimination of discrimination against women - Articles 2 and 26 of the ICCPR, Articles 2, 3, and 5 of CEDAW

Creation of the Family Law Appeal Division

23.               Australia’s obligation to eliminate discrimination against women is contained in Articles 2 and 26 of the ICCPR, and Articles 2, 3 and 5 of the CEDAW. This includes addressing family violence, which amounts to discrimination against women. [6] As discussed in paragraph 19, the Family Law Appeal Division is the forum to ensure that correct and consistent decisions are made in relation to family law matters. Accordingly, the Family Law Appeal Division assists Australia to meet its obligation to eliminate discrimination against women.

Right to security of the person - Article 9 of the ICCPR

Transitional provisions

24.               Item 38 of Schedule 10, Part 5 provides for transitional rules, which include the power for the Minister to, by legislative instrument, make rules on prescribed matters of a transitional nature. Subsection (2) of item 38 clarifies that the rules the Minister makes may not create an offence or provide powers of arrest or detention. This item engages Article 9 of the ICCPR, which provides that everyone has the right to liberty and security of the person and that no one shall be subjected to arbitrary arrest or detention. By restricting the Minister’s power to makes Rules to matters that do not create offences or provide for powers of arrest or detention, item 38 ensures that the Minister cannot make Rules which subject a person to arbitrary arrest or detention.

Conclusion

25.               The Bill is compatible with human rights because it promotes the protection of human rights and t o the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to achieve the legitimate objectives of the Bill.



NOTES ON CLAUSES

List of abbreviations

Family Court                                       Family Court of Australia

Family Law Act                                  Family Law Act 1975 (Cth)

Family Law Rules                               Family Law Rules 2004 (Cth)

FCFC (Division 1) Rules                    Federal Circuit and Family Court of Australia (Division 1) Rules 2018 (Cth)

FCFC (Division 1)                              Federal Circuit and Family Court of Australia (Division 1)

FCFC (Division 2) Rules                    Federal Circuit and Family Court of Australia (Division 2) Rules 2018 (Cth)

FCFC (Division 2)                              Federal Circuit and Family Court of Australia (Division 2)

FCFC                                                  Federal Circuit and Family Court of Australia

Federal Circuit Court Act                   Federal Circuit Court of Australia Act 1999    (Cth)

Federal Circuit Court Rules                Federal Circuit Court Rules 2001 (Cth)

Federal Circuit Court                          Federal Circuit Court of Australia

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

Federal Court Rules                            Federal Court Rules 2011 (Cth)

Federal Court                                      Federal Court of Australia

High Court                                          High Court of Australia

 

 



A Bill for an Act to deal with consequential and transitional matters in connection with the Federal Circuit and Family Court of Australia Act 2018, and for related purposes

Clause 1 - Short title

1.                   Clause 1 provides that this Act is the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2018.

Clause 2 - Commencement

2.                   Clause 2 provides the commencement dates of Parts of the Act. Schedule 1; Divisions 1, 3 and 4 of Schedule 2; and Schedules 6 and 7 of this Act will commence on 1 January 2019. Other Parts of the Act will start in accordance with the table provided in Clause 2.

Clause 3 - Schedules

3.                   Subclause 3(1) provides that legislation that is specified in a Schedule to this Act (other than Schedule 7 and 8)  is amended or repealed as set out by the relevant Schedule, and that any other item in a Schedule to this Act (other than Schedules 7 and 8) has effect in accordance with its terms.  The Note to subclause 3(1) directs the reader to the fact that provisions of a regulation or other instrument amended or inserted by this Act, and any other provision of the regulation or instrument, may be amended or repealed by another instrument made under the relevant authority in the relevant Act.

4.                   Subclause 3(2) provides that legislation specified in Schedules 7 and 8 to this Act is modified as set out in the applicable items, and any other item in those Schedules has effect according to its terms. The Note in subclause 3(2) provides that in these two Schedules, Rules of Court are modified in their application to the FCFC, without amending their text.

 

 

 

 



 

Schedule 1 - Amendments relating to the Federal Circuit and Family Court of Australia

Part 1—Amendments

Family Law Act 1975

Item 1 - Subsection 4(1)

5.                   Subsection 4(1) provides a list of definitions which apply to the Family Law Act, the standard Rules of Court and the related Federal Circuit Court Rules.

6.                   Item 1 omits ‘the standard rules of Court and the related Federal Circuit Court Rules, unless the contrary intention appears’ and substitutes ‘and the applicable Rules of Court’ to encompass the various Rules of Court which will now use these definitions. The definition of applicable Rules of Court is amended by item 3 of Schedule 1 of this Bill.

Item 2 - Subsection 4(1)

7.                   Item 2 repeals the definitions of administrative affairs , appeal and Appeal Division in subsection 4(1). These definitions are relevant to the structure, administration and function of the FCFC (defined in item 8 of Schedule 1 of this Bill, and provided for by the Federal Circuit and Family Court of Australia Act 2018 ) and are no longer required in the Family Law Act. A replacement definition of administrative affairs is included in section 7 of the Federal Circuit and Family Court of Australia Act 2018 .

Item 3 - Subsection 4(1) (definition of applicable Rules of Court )

8.                   Item 3 repeals the definition of applicable Rules of Court in subsection 4(1) and substitutes a new definition to reflect the different rules applicable to the different courts exercising jurisdiction under the Family Law Act.

Item 4 - Subsection 4(1) (definition of Chief Executive Officer )

9.                   Item 4 repeals the existing definition of Chief Executive Officer in subsection 4(1) and substitutes a new definition:  ‘ Chief Executive Officer means the Chief Executive Officer and Principal Registrar of the Federal Court of Australia.’ This aligns with the definition of Chief Executive Officer in section 7 of the Federal Circuit and Family Court of Australia Act 2018 .  

Item 5 - Subsection 4(1)

10.               Item 5 repeals the existing definitions of Chief Justice , complaint , complaint handler and corporate services in subsection 4(1). These definitions are relevant to the structure and administration of the FCFC (defined in item 8 of Schedule 1 of this Bill, and provided for by the Federal Circuit and Family Court of Australia Act 2018 ) and are no longer required in the Family Law Act. Definitions of those terms in the context of the FCFC are provided in section 7 the Federal Circuit and Family Court of Australia Act 2018.

Item 6 - Subsection 4(1) (at the end of the definition of court )

11.               Item 6 amends the existing definition of court in subsection 4(1) to ensure that a ‘court’ for the purposes of the Family Law Act includes a court, in relation to any proceedings, exercising jurisdiction in those proceedings by virtue of the Family Law Act, the Federal Court Act, Federal Circuit and Family Court of Australia Act 2018, the Child Support (Assessment) Act 1989, or the Child Support (Registration and Collection) Act 1988. This amendment recognises that each of those Acts confer jurisdiction upon a number of courts, including the FCFC (defined in item 8 of Schedule 1 of this Bill, and provided for by the Federal Circuit and Family Court of Australia Act 2018 ), and the Federal Court in respect of proceedings which may be instituted under the Family Law Act, and/or to hear appeals from decisions of courts exercising jurisdiction under the Family Law Act. 

Item 7 - Subsection 4(1) (definition of Deputy Chief Justice )

12.               Item 7 repeals the existing definition of Deputy Chief Justice in subsection 4(1). This definition is relevant to the structure of the FCFC (defined in item 8, of Schedule 1 of this Bill, and provided for by the Federal Circuit and Family Court of Australia Act 2018 ). A definition of Deputy Chief Justice in the context of the FCFC is provided in section 7 of the Federal Circuit and Family Court of Australia Act 2018 .

Item 8 - Subsection 4(1)

13.               Item 8 inserts a new definition of the Federal Circuit and Family Court of Australia in subsection 4(1) of the Family Law Act. The ‘ Federal Circuit and Family Court of Australia ’ is defined as the FCFC (Division 1) or the FCFC (Division 2). The FCFC is provided for by the Federal Circuit and Family Court of Australia Act 2018 (section 8). Reference in the Family Law Act to the FCFC should be read as a reference to either the FCFC (Division 1) or the FCFC (Division 2) of the Court.

14.               Item 8 also inserts a new definition of Federal Circuit and Family Court of Australia (Division 1) Rules in subsection 4(1) of the Family Law Act. The practice and procedure of the FCFC (Division 1) will be governed by a set of rules made under Chapter 3 of the Federal Circuit and Family Court of Australia Act 2018 , rather than rules made under section 123 of the Family Law Act. 

Item 9 - Subsection 4(1)

15.               Item 9 repeals the definitions of Federal Circuit Court and Federal Circuit Court Chief Executive Officer in subsection 4(1). These definitions are relevant to the structure, administration and function of the FCFC (Division 2) as provided for by the Federal Circuit and Family Court of Australia Act 2018 . A definition of Chief Executive Officer in the context of the FCFC is provided in section 7 of the Federal Circuit and Family Court of Australia Act 2018 .

Item 10 - Subsection 4(1)

16.               Item 10 inserts a new definition of Federal Court Rules in subsection 4(1). The provision makes clear that the Federal Court Rules are ‘Rules of Court made under the Federal Court Act to the extent that those Rules relate to the exercise of the Federal Court of Australia’s jurisdiction in the Family Law Appeal Division of the Federal Court of Australia’. The Family Law Appeal Division of the Federal Court is vested with jurisdiction to hear the majority of appeals from decisions of courts exercising jurisdiction under the Family Law Act (item 227 of Schedule 1 of this Bill will repeal subsections 24(1AA) to (1E) of the Federal Court Act and substitute new provisions providing for the new appellate jurisdiction).

Item 11 - Subsection 4(1)

17.               Item 11 repeals the definitions of Full Court , General Division and handle in subsection 4(1). These definitions are relevant to the structure and function of the FCFC (defined in item 8 of Schedule 1 of this Bill, and provided for by the Federal Circuit and Family Court of Australia Act 2018 ) and are no longer required in the Family Law Act. A new definition of handle in the context of the FCFC is provided in section 7 the Federal Circuit and Family Court of Australia Act 2018.

Item 12 - Subsection 4(1) (definition of Registrar )

18.               Item 12 repeals the existing definition of ‘Registrar’ in subsection 4(1) and substitutes a new definition that reflects the structure, administration and functions of the new FCFC (defined in item 8 of Schedule 1 of this Bill, and provided for by the Federal Circuit and Family Court of Australia Act 2018 ).

19.               Item 12 provides that Registrar will mean a persons or persons occupying the office of Registrar of FCFC (Division 1) or the FCFC (Division 2), or the principal legal officer, or any other appropriate officer, of any other court. The new definition of Registrar is purposefully narrower in its application than the existing definition; the new definition does not include a Principal Registrar or Deputy Registrar. The office of Principal Registrar is not separately defined in the Family Law Act; this position is incorporated into the new definition of Chief Executive Officer in subsection 4(1) (see item 4 of Schedule 1 of this Bill). Provisions in the Family Law Act that refer to Registrar , with the intention that the provision  also apply to other officers of the court such as the Chief Executive Officer (Principal Registrar) or a Deputy Registrar, have been amended to clearly identify the officers of the court to which the provisions apply.  

20.               For courts other than the FCFC, the substituted definition retains the former requirement that the Registrar is the principal legal officer or any other appropriate officer of that court.

Item 13 - Subsection 4(1) (definition of Registry Manager )

21.               Item 13 repeals the definition of Registry Manager in subsection 4(1) and substitutes a new definition that reflects the structure, administration and functions of the new FCFC (defined in item 8 of Schedule 1 of the Bill, and provided for by the Federal Circuit and Family Court of Australia Act 2018 ) and which applies throughout the Family Law Act. The definition includes Registry Managers of the FCFC (Division 1) and the FCFC (Division 2), and the principal legal officer or any other appropriate officer of any other court exercising jurisdiction under the Family Law Act. A consistent definition of Registry Manager is also provided in section 7 the Federal Circuit and Family Court of Australia Act 2018 .

Item 14 - Subsection 4(1)

22.               Item 14 inserts a new definition of related Federal Circuit and Family Court of Australia (Division 2) Rules in subsection 4(1) of the Family Law Act, which provides that these are the Rules of Court under Chapter 4 of the new Federal Circuit and Family Court of Australia Act 2018 to the extent to which they relate to the Family Law Act.

Item 15 - Subsection 4(1)

23.               Item 15 repeals the definitions of related Federal Circuit Court Rules , relevant belief and split court in subsection 4(1). These definitions are relevant to the structure of the FCFC (defined in item 8, of Schedule 1 of this Bill, and provided for by the Federal Circuit and Family Court of Australia Act 2018 ).

24.               The repeal of the definition of related Federal Circuit Court Rules is required as item 14 of Schedule 1 of this Bill inserts a definition of Federal Circuit and Family Court of Australia (Division 2) Rules to reflect the change to the source of the relevant rule making power.

25.               The definition of relevant belief relates to complaints and is no longer required in the Family Law Act.  A definition of relevant belief in the context of complaints made about a judge of the FCFC (Division 1) or a judge of the FCFC (Division 2) is provided in section 7 of the Federal Circuit and Family Court of Australia Act 2018 .

26.               The definition of split court is no longer required in the Family Law Act as the only appeals jurisdiction that may involve more than one judge, will be appeals heard by the Family Law Appeals Divisions of the Federal Court exercising jurisdiction under the Federal Court Act.

Item 16 - Subsection 4(1) (definition of warrant issued under a provision of this Act)

27.               Item 16 amends the definition of warrant issued under a provision of this Act in subsection 4(1). Specifically, this item omits ‘standard Rules of Court or the related Federal Circuit Court Rules’ and substitutes ‘applicable Rules of Court.’ This amendment will ensure that the definition covers all relevant Rules of Court. In addition, a new definition of applicable Rules of Court will be inserted by item 3 of Schedule 1 of this Bill, reflecting the new court structure.  

Item 17 - Subsection 4(1A)

28.               Subsection 4(1A) currently provides how a reference to the ‘Family Court’ and to a ‘Family Court of a State’ are to be read in the standard Rules of Court and related Federal Circuit Court Rules.

29.               Item 17 repeals subsection 4(1A) and substitutes a new subsection 4(1A) that aligns with the new arrangements established under the Federal Circuit and Family Court of Australia Act 2018 .

30.               The new subsection 4(1A) inserted by item 17 includes updated terminology to refer to the applicable Rules of Court (the definition of that term is provided in item 3 of Schedule 1 of this Bill). This will ensure that this subsection applies to all relevant Rules of Court.  Recognising that the ‘Family Court’ is continued in existence as the FCFC (Division 1) (by section 8 of the Federal Circuit and Family Court of Australia Act 2018 ), the reference to the ‘Family Court’ has been removed from subsection 4(1A).

Item 18 - Subsection 4(2) and (2A)

31.               Subsection 4(2) provides that a reference in the Act, standard rules of Court or the related Federal Circuit Court Rules to a ‘party to a marriage’ includes a person to whom one of the circumstances, outlined in paragraphs 4(2)(a) to (c), applies.

32.               Similarly, subsection 4(2A) provides that a reference in the Act, standard rules of Court or the related Federal Circuit Court Rules to a ‘party to a de facto relationship’ includes a reference to a party to a de facto relationship that has broken down.

33.               Item 18 amends subsections 4(2) and 4(2A) to align with the new arrangements established under the Federal Circuit and Family Court of Australia Act 2018 .  Item 18 omits the reference to ‘the standard Rules of Court or the related Federal Circuit Court Rules’ in subsections 4(2) and 4(2A) and substitutes the applicable Rules of Court (the definition of that term is provided in item 3 of Schedule 1 of this Bill). This will ensure that these subsections apply to all relevant Rules of Court.

Item 19 - Subsection 4(3)

34.               Subsection 4(3) provides that jurisdiction, proceedings and orders under the standard Rules of Court and the related Federal Circuit Court Rules, is taken to be jurisdiction, proceedings and orders under the Family Law Act.

35.               Item 19 repeals this subsection and substitutes a new subsection to align with the new arrangements established under the Federal Circuit and Family Court of Australia Act 2018 . Item 19 updates the terminology in subsection 4(3) such that jurisdiction, proceedings and orders under the applicable Rules of Court (the definition of that term is provided in item 3 of Schedule 1 of this Bill) are taken to be jurisdiction, proceedings and orders under the Family Law Act. This ensures that the subsection applies to all relevant Rules of Court.

36.               New paragraph 4(3)(a) provides that jurisdiction under a provision of the Federal Court Act or the Federal Circuit and Family Court of Australia Act 2018 referring to the Family Law Act, is taken to be jurisdiction under the Family Law Act. This reflects that the courts primarily exercising original and appellate jurisdiction in family law matters will no longer be established by the Family Law Act and so, to avoid doubt, this subsection provides that the exercise of jurisdiction of these courts currently conferred under the Family Law Act, remains an exercise of jurisdiction under the Family Law Act.

37.               Further, new paragraph 4(3)(b) provides that jurisdiction under section 101 of the Child Support (Assessment) Act 1989 and under section 106 of the Child Support (Registration and Collection) Act 1988 is taken to be jurisdiction under the Family Law Act.  The sections referred to in new paragraph 4(3)(b) confer jurisdiction on a Family Court of a State and the Northern Territory Supreme Court to hear appeals in the respective child support Acts (see items 167 and 181 of Schedule 3 of this Bill). Paragraph 4(3)(b) clarifies that the exercise of this appellate jurisdiction is an exercise of jurisdiction under the Family Law Act.    

Item 20 - Subsection 8(1)

38.               Section 8 provides limitations on the institution and continuing of certain types of proceedings after the commencement of the Family Law Act.

39.               Item 20 repeals subsection 8(1) to remove the option of continuing matrimonial causes proceedings in accordance with the section 9 arrangements, reflecting that section 9 of the Family Law Act will be repealed (see item 21 of Schedule 1 of this Bill).

Item 21 - Section 9

40.               Section 9 contains transitional provisions relating to proceedings pending prior to the commencement of the Family Law Act.

41.               Item 21 repeals section 9 as there are now no proceedings to which this section would apply. 

Item 22- Paragraph 10C(1)(c) and (d)

42.               Section 10C provides a definition of family counsellor . Paragraphs 10C(1)(c) and (d) of the definition provide that persons authorised by the Chief Executive Officer of the Family Court or the Chief Executive Officer of the Federal Circuit Court, respectively, to provide family counselling under the Family Law Act are to be taken to be a family counsellor

43.               Item 22 repeals paragraphs 10C(1)(c) and (d) and substitutes a new paragraph 10C(1)(c) to align with the new arrangements established under the Federal Circuit and Family Court of Australia Act 2018 . Section 247 of the Federal Circuit and Family Court of Australia Act 2018 confers a new power on the Chief Executive Officer of the FCFC to authorise officers or staff of the FCFC to provide family counselling under the Family Law Act. Item 22 inserts a new paragraph 10C(1)(c) which provides that officers and staff so authorised by the Chief Executive Officer of the Federal Circuit and Family Court of Australia Act 2018 under section 247 of the Federal Circuit and Family Court Act 2018 are to be taken to be a family counsellor .

Item 23 - Paragraphs 10G(1)(c) and (d)

44.               Section 10G provides a definition of family dispute resolution practitioner . Paragraphs 10G(1)(c) and (d) provide that persons authorised by the Chief Executive Officer of the Family Court or the Chief Executive Officer of the Federal Circuit Court, respectively, to act as a family dispute resolution practitioner are to be taken to be a family dispute resolution practitioner .

45.               Item 23 repeals paragraphs 10G(1)(c) and (d) and substitutes a new paragraph 10G(1)(c) to align with the new arrangements established under the Federal Circuit and Family Court of Australia Act 2018 . Section 247 of the Federal Circuit and Family Court of Australia Act 2018 confers a new power on the Chief Executive Officer of the FCFC to authorise officers or staff of the FCFC to provide family dispute resolution under the Family Law Act. Item 23 inserts a new paragraph 10G(1)(c) which provides that officers and staff so authorised by the Chief Executive Officer of the Federal Circuit and Family Court of Australia Act 2018 under section 247 of the Federal Circuit and Family Court Act 2018 are to be taken to be a family dispute resolution practitioner .

Item 24 - Section 10P

46.               Section 10P provides an arbitrator, performing their functions as an arbitrator, with the same protection and immunity that a Judge of the Family Court has in performing the functions of a Judge.

47.               Item 24 omits the reference to ‘Family Court’ and substitutes a reference to ‘Federal Circuit and Family Court of Australia (Division 1)’ to align with the new arrangements established under the Federal Circuit and Family Court of Australia Act 2018 . Item 24 reflects the continuation of the Family Court as the FCFC (Division 1) (provided by section 8 of the Federal Circuit and Family Court of Australia Act 2018 ) and does not change the operation of section 10P.

Item 25 - Section 11B (note)

48.               The note to section 11B provides that the Chief Executive Officer has all the functions and powers of family consultants and may direct consultants in the performance of their functions, with a direction to see Division 1A of Part IVA of the Family Law Act in this regard.

49.               Item 25 omits, in this note, the reference to ‘Division 1A of Part IVA of this Act’ (referring to the Family Law Act), and substitutes a reference to ‘Part 1 of Chapter 5 of the Federal Circuit and Family Court of Australia Act 2018 ’ to provide the correct legislative reference for the information contained in the note and align with the new arrangements to be established by the Federal Circuit and Family Court of Australia Act 2018 .

Item 26 - Subsection 11C(1) (note 1)

50.               Note 1 to subsection 11C(1) provides that communications with a family consultant are not confidential except in the circumstances set out in subsection 38BD(3) of the Family Law Act.  

51.               Item 26 omits the reference to subsection 38BD(3) in this note and substitutes a  reference to subsection 247(3) of the Federal Circuit and Family Court of Australia Act 2018 to provide the correct legislative reference for the information contained in the note and align with the new arrangements to be established by the Federal Circuit and Family Court of Australia Act 2018 .

Item 27 - Section 11D

52.               Section 11D provides a family consultant, performing their functions as a family consultant, with the same protection and immunity that a Judge of the Family Court has in performing the functions of a Judge.

53.               Item 27 omits the reference to ‘Family Court’ and replaces it with ‘Federal Circuit and Family Court of Australia (Division 1)’ to align with the new arrangements established under the Federal Circuit and Family Court of Australia Act 2018 . Item 27 reflects the continuation of the Family Court as the FCFC (Division 1) (provided by section 8 of the Federal Circuit and Family Court of Australia Act 2018 ), and does not change the operation of section 11D.

Item 28 - Subparagraphs 11E(1)(e)(i) and (ia)

54.               Paragraph 11E(1)(e) provides that, where the Family Court or the Federal Circuit Court has the power under the Family Law Act to order that a person attend family counselling, family dispute resolution, appointments with a family consultant, or a course, program or other service, before making such an order the court can seek advice from a family consultant appointed by the Chief Executive of that court. . 

55.               Item 28 omits subparagraphs 11E(1)(e)(i) and (ia), which refer to the Chief Executive Officer of  the Family Court and the Chief Executive Officer of the Federal Circuit Court, respectively, and substitutes a single subparagraph 11E(1)(e)(i) which provides that, if the court is the Federal Circuit and Family Court of Australia, the court can seek advice from a family consultant nominated by the Chief Executive Officer of that court. This amendment brings section 11E into alignment with the new arrangements provided by Federal Circuit and Family Court of Australia Act 2018 , and reflects that the Chief Executive Officer of the FCFC (Division 1) and the FCFC (Division 2) will be the same person.

Item 29 - Subparagraph 11E(1)(e)(iii)

56.               Item 29 omits the reference to ‘(ia)’ in subparagraph 11E(1)(e)(iii), which is required because of the amendment made by item 28 of Schedule 1 of this Bill.

Item 30 - Section 13G (heading)

57.               Section 13G is headed ‘Family Court and Federal Circuit Court may determine question of law referred by arbitrator’.    

58.               Item 30 omits ‘Family Court or Federal Circuit Court’ from the heading and substitutes ‘Federal Circuit and Family Court of Australia’ to align with the new arrangements established under the Federal Circuit and Family Court of Australia Act 2018 . Item 30 reflects the continuation of the Family Court as the FCFC (Division 1) (provided by section 8 of the Federal Circuit and Family Court of Australia Act 2018 ), and the continuation of the Federal Circuit Court as the FCFC (Division 2) (also provided by section 8 of the Federal Circuit and Family Court of Australia Act 2018 ), which are collectively referred to as the FCFC.   

Item 31 - Paragraphs 13G(1)(a), (b) and (c)

59.               Paragraphs 13G(1)(a) to (b) specify the courts to which an arbitrator may refer a question of law.  

60.               Item 31 omits paragraphs 13G(1)(a),(b) and (c) and substitutes paragraphs 13G(1)(a) and (b). This reflects that the Family Court and the Federal Circuit Court are continued in existence as the FCFC (Division 1) and the FCFC (Division 2), respectively (as provided by section 8 of the Federal Circuit and Family Court of Australia Act 2018 ), and are collectively referred to as the FCFC. This amendment does not change the operation of subsection 13G(1).

Item 32 - Subsection 13G(3)

61.               Subsection 13G(3) provides that the arbitrator must not make an award in the arbitration until the judge or Federal Circuit Court has determined the question of law or remitted the matter back to the arbitrator.

62.               Item 32 omits the reference to the ‘Federal Circuit Court of Australia’ and substitutes ‘Federal Circuit and Family Court of Australia’ to align with the new arrangements established under the Federal Circuit and Family Court of Australia Act 2018 . This reflects that the Family Court and the Federal Circuit Court are continued in existence as the FCFC (Division 1) and the FCFC (Division 2), respectively (as provided by section 8 of the Federal Circuit and Family Court of Australia Act 2018 ), and are collectively referred to as the FCFC. This amendment does not change the operation of subsection 13G(3). 

Item 33 - Section 13J (heading)

63.               Section 13J is headed ‘Family Court or Federal Circuit Court can review registered awards’.

64.               Item 33 omits ‘Family Court or Federal Circuit Court’ from the heading and substitutes ‘Federal Circuit and Family Court of Australia’ to align with the new arrangements established under the Federal Circuit and Family Court of Australia Act 2018 . This reflects that the Family Court and the Federal Circuit Court are continued in existence as the FCFC (Division 1) and the FCFC (Division 2), respectively (as provided by section 8 of the Federal Circuit and Family Court of Australia Act 2018 ), and are collectively referred to as the FCFC.

Item 34 - Paragraphs 13J(1)(a), (b) and (c)

65.               Paragraphs 13J(1)(a) to (b) specify the courts to which a party to a registered award may apply for a review of the award on a question of law. 

66.               Item 34 omits paragraphs 13J(1)(a),(b) and (c) and substitutes paragraphs 13J(1)(a) and (b). This reflects that the Family Court and the Federal Circuit Court are continued in existence as the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2), respectively (as provided by section 8 of the Federal Circuit and Family Court of Australia Act 2018 ), and are collectively referred to as the FCFC. This amendment does not change the operation of subsection 13J(1).  

Item 35 - Subsection 13J(2)

67.               Subsection 13J(2) provides what a judge or the Federal Circuit Court may do on a review of an award.

68.               Item 35 omits references to the ‘Federal Circuit Court of Australia’ in subsection 13J(2) and on each occasion substitutes ‘Federal Circuit and Family Court of Australia’ to align with the new arrangements established under the Federal Circuit and Family Court of Australia Act 2018 . This reflects that the Family Court and the Federal Circuit Court are continued in existence as the FCFC (Division 1) and the FCFC (Division 2), respectively (as provided by section 8 of the Federal Circuit and Family Court of Australia Act 2018 ), and are collectively referred to as the FCFC. This amendment does not change the operation of subsection 13J(2).

Item 36 - Section 13K (heading)

69.               Section 13K is headed ‘Family Court and Federal Court may set aside registered awards’.

70.               Item 36 omits ‘Family Court or Federal Circuit Court’ from the heading and substitutes ‘Federal Circuit and Family Court of Australia’ to align with the new arrangements established under the Federal Circuit and Family Court of Australia Act 2018 . This reflects that the Family Court and the Federal Circuit Court are continued in existence as the FCFC (Division 1) and the FCFC (Division 2), respectively (as provided by section 8 of the Federal Circuit and Family Court of Australia Act 2018 ), and are collectively referred to as the FCFC.

Item 37- Paragraph 13K(1)(a) and (b)

71.               Paragraphs 13K(1)(a) to (c) specify the courts in which an award arising out of an arbitration may be registered.

72.               Item 37 omits paragraphs 13K(1)(a) and (b) and substitutes new paragraphs 13K(1)(a) and (b) to align with the new arrangements established under the F ederal Circuit and Family Court of Australia Act 2018 . The reference to the ‘Family Court’ in paragraph 13K(1)(a) will be replaced with the ‘Federal Circuit and Family Court of Australia (Division 1)’, reflecting the continuation of the Family Court under this new name as is provided by section 8 of the Federal Circuit and Family Court of Australia Act 2018 . The reference to the ‘Federal Circuit Court of Australia’ in paragraph 13K(1)(b) will be replaced with the ‘Federal Circuit and Family Court of Australia (Division 2)’, reflecting the continuation of the Federal Circuit Court under this new name as is provided by section 8 of the Federal Circuit and Family Court of Australia Act 2018 . This amendment does not change the operation of subsection 13K(1).

Item 38 - Part IV and IVA

73.               Part IV governs the creation, structure and constitution of the Family Court of Australia and Part IVA governs the management of the Court.

74.               Item 38 repeals Part IV and Part IVA. The Family Court will continue in existence as the FCFC (Division 1) (see section 8 of the Federal Circuit and Family Court of Australia Act 2018 ). The provisions in Parts IV and IVA are substantially replicated in the Federal Circuit and Family Court of Australia Act 2018 , with such amendments as are necessary to support the operation of the new court structure. 

Item 39 - Paragraph 39(1)(a)

75.               Paragraph 39(1)(a) provides that a matrimonial cause may be instituted in the Family Court.

76.               Item 39 repeals existing paragraph 39(1)(a) and replaces it with a new subparagraph 39(1)(a) providing that matrimonial causes may be instituted in the Federal Circuit and Family Court of Australia. The effect of this amendment is that, under paragraph 39(1)(a),  matrimonial causes may be instituted in either the FCFC (Division 1) or the FCFC (Division 2), collectively referred to as the FCFC.

 Item 40 - Subsection 39(1A)

77.               Under subsection 39(1A), matrimonial causes may be instituted in the Federal Circuit Court.

78.               Item 40 repeals subsection 39(1A) on the basis that item 39 of Schedule 1 of this Bill amends paragraph 39(1)(a) to provide for matrimonial causes to be instituted in the Federal Circuit and Family Court (Division 2). This renders subsection 39(1A) unnecessary given that the Federal Circuit Court is continued in existence as the Federal Circuit and Family Court (Division 2) (section 8 of the Federal Circuit and Family Court of Australia Act 2018 ).  

Item 41 - Subsection 39(5)

79.               Subsection 39(5) provides that the Family Court, and various other courts, are vested with jurisdiction in relation to a variety of causes and proceedings instituted under the Family Law Act.  

80.               Item 41 omits the reference to the ‘Family Court’ and substitutes a reference to the ‘Federal Circuit and Family Court of Australia’. The effect of this amendment is that, under subsection 39(5), the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2) (collectively referred to as the FCFC) have jurisdiction in relation to the various causes and proceedings under the Family Law Act. Both the FCFC (Division 1) and the FCFC (Division 2) have identical jurisdiction under the new subsection 39(5), reflecting the intention that the jurisdiction of the FCFC (Division 1) and the FCFC (Division 2) will largely be coterminous under the new court structure.

Item 42 - Paragraph 39(5)(b)

81.               Paragraph 39(5)(b) provides that, the courts specified in subsection 39(5) have jurisdiction in relation to matrimonial causes continued in accordance with section 9.

82.               Item 42 repeals paragraph 39(5)(b). This amendment follows the repeal of section 9 (see item 21 of Schedule 1 of this Bill) because there are now no proceedings to which section 9 would apply.

Item 43 - Paragraph 39(5)(d)

83.               Paragraph 39(5)(d) provides that the courts specified in subsection 39(5) have jurisdiction in relation to proceedings instituted under regulations made for the purpose of various sections of the Family Law Act, under paragraphs 125(1)(f) or (g) or under Rules of Court made for the purpose of paragraph 123(1)(r).

84.               Item 43 repeals paragraph 39(5)(d) and substitutes a new paragraph 39(5)(d), which contains subparagraphs (i) to (iii). The new subparagraphs essentially cover the same proceedings as are currently covered by paragraph 39(5)(d). The type of proceedings under the applicable Rules of Court are described in subparagraph 39(5)(d)(iii) (rather than identified by cross referencing the particular power in the Rules). The definition of ‘ applicable Rules of Court ’ is to be provided in subsection 4(1) (see item 3 of Schedule 1 of this Bill).

Item 44 - Subsections 39(5AA) and (5A)

85.               Subsection 39(5AA) provides that the Federal Circuit Court has, and is taken always to have had jurisdiction under the Family Law Act in respect of which matrimonial causes (with some exceptions) are instituted.

86.               Subsection 39(5A) provides that the Federal Circuit Court has jurisdiction with respect to matters outlined in 39(5A)(a) to (d). This subsection is the Federal Circuit Court equivalent to subsection 39(5) which confers jurisdiction on various courts, including the Family Court, in respect to various proceedings.

87.               Item 44 repeals subsections 39(5AA) and (5A) as amendments to subsection 39(5) (see item 38 of Schedule 1 of this Bill) render jurisdictional provisions specific to the FCFC (Division 2) (the continuation of the Federal Circuit Court), unnecessary. With the repeal of subsection 39(5AA), the exceptions that apply to the Federal Circuit Court in relation to jurisdiction for particular matrimonial causes, will not apply to the FCFC (Division 2).  This reflects the intention that the jurisdiction of the FCFC (Division 1) and the FCFC (Division 2) will largely be coterminous under the new court structure.

Item 45 - Paragraph 39(6)(b)

88.               Paragraph 39(6)(b) provides that courts of summary jurisdiction specified in subsection 39(6) have jurisdiction in relation to matrimonial causes continued in accordance with section 9.

89.               Item 45 repeals paragraph 39(6)(b), reflecting the repeal of section 9 (see item 21 of Schedule 1 of this Bill) because there are now no proceedings to which section 9 would apply.

Item 46 - Paragraph 39(6)(d)

90.               Paragraph 39(6)(d) provides that the courts of summary jurisdiction specified in subsection 39(6) have jurisdiction in relation to proceedings instituted under regulations made for the purpose of various sections of the Family Law Act, under paragraphs 125(1)(f) or (g), under Rules of Court made for the purpose of paragraph 123(1)(r) or under Rules of Court made for the purpose of paragraph 87(1)(j) of the Federal Circuit Court Act. 

91.               Item 46 repeals paragraph 39(6)(d) and substitutes a new paragraph 39(6)(d), which contains subparagraphs (i) to (iii). The new subparagraphs essentially cover the same proceedings as are currently covered by paragraph 39(6)(d). The type of proceedings under the applicable Rules of Court are described in subparagraph 39(6)(d)(iii) rather than identified by cross referencing the particular power in the different sets of rules. This is because with multiple sets of rules, referencing particular rules powers adds unnecessary complexity to the provision. The definition of ‘applicable Rules of Court’ is to be provided in subsection 4(1) (see item 3 of Schedule 1 of this Bill).

Item 47 - At the end of subsection 39(9)

92.               Subsection 39(9) provides that jurisdiction conferred on or invested by section 39 includes jurisdiction with respect to matters arising under any law of the Commonwealth in respect of which proceedings are transferred to that court in accordance with the Family Law Act.

93.               Item 47 inserts a reference to the Federal Circuit and Family Court of Australia Act 2018 at the end of the subsection to reflect that specific powers to transfer proceedings (in particular circumstances) will be provided in the Family Law Act and the Federal Circuit and Family Court of Australia Act 2018 (see, for example, sections 34 and 117 of the Federal Circuit and Family Court of Australia Act 2018 ) .  

Item 48 - Paragraph 39A(1)(a) and (b)

94.               Paragraphs 39A(1)(a) and (b) provide that a de facto financial cause may be instituted in the Family Court and the Federal Circuit Court, respectively.

95.               Item 48 repeals paragraphs 39A(1)(a) and (b) and substitutes a single paragraph 39A(1)(a). New paragraph 39A(1)(a) provides that de facto financial causes can be instituted in the FCFC (Division 1) and the FCFC (Division 2) by referring to the FCFC. This reflects the name changes to the existing courts (see section 8 of the Federal Circuit and Family Court of Australia Act 2018 ).

Item 49 - Paragraph 39B(1)(a) and (b)

96.               Paragraphs 39B(1)(a) and (b) confer jurisdiction on the Family Court and the Federal Circuit Court, respectively, for de facto financial causes instituted under the Family Law Act.

97.               Item 49 repeals paragraphs 39B(1)(a) and (b) and substitutes a single paragraph 39B(1)(a). New paragraph 39B(1)(a) confers jurisdiction for de facto financial causes on the FCFC (Division 1) and the FCFC (Division 2) by referring to the FCFC. This reflects the name changes to the existing courts (see section 8 of the Federal Circuit and Family Court of Australia Act 2018 ).

Item 50 - Subsection 39B(1) (notes 1 and 2)

98.               Note 1 to subsection 39B(1) provides that the exercise of the jurisdiction of the Family Court is subject to section 40. Note 2 to subsection 39B(1) provides that the exercise of the jurisdiction of the FCC is subject to section 40A.

99.               Item 46 repeals notes 1 and 2 and substitutes a new note 1, which identifies that the exercise of jurisdiction under subsection 39B(1) is subject to section 40. This amendment reflect the jurisdiction of the FCFC (Division 1) and the FCFC (Division 2) provided in new paragraph 39B(1)(a) (see item 49 of Schedule 1 of this Bill), and the consequential amendments to section 40 and repeal of section 40A (see items 52 to 56 of Schedule 1 of this Bill).

Item 51 - Section 39G

100.           Section 39G provides that, if proceedings in relation to a matter arising under a law of the Commonwealth are transferred under the Family Law Act to a court that has jurisdiction under Division 3, of Part V of the Family Law Act, the jurisdiction of the court includes jurisdiction in relation to that matter.

101.           Item 51 repeals this section and replaces it with a new section 39G which includes a reference to the Federal Circuit and Family Court of Australia Act 2018 to reflect that specific powers to transfer proceedings (in particular circumstances) are provided in the Family Law Act and the Federal Circuit and Family Court of Australia Act 2018 (see, for example, sections 34 and 117 of the Federal Circuit and Family Court of Australia Act 2018 ) .  

Item 52 - Section 40 (heading)

102.           Section 40 is headed ‘Limitation on jurisdiction of Family Court and of State and Territory Supreme Courts.

103.           Item 52 omits ‘Family Court’ from the heading and substitutes ‘Federal Circuit and Family Court of Australia’ to align with the new arrangements established under the Federal Circuit and Family Court of Australia Act 2018 , and reflect the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2) (by section 8 of the Federal Circuit and Family Court of Australia Act 2018 ), collectively referred to as the FCFC. The inclusion of the FCFC (Division 2) is necessitated by the repeal of section 40A (see item 56 of Schedule 1 of this Bill) which currently provides a limit on the exercise of jurisdiction of the Federal Circuit Court in certain States and Territories if the corresponding jurisdiction of the Family Court is not capable of being exercised in the State or Territory. 

Item 53 - Subsection 40(1)

104.           Under subsection 40(1), the Regulations may provide that the jurisdiction of the Family Court, in relation to all or a particular class of proceedings, cannot be exercised in specified States and Territories.

105.           Item 53 omits ‘Family Court’ from subsection 40(1) and substitutes ‘Federal Circuit and Family Court of Australia’ to appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2) (by section 8 of the Federal Circuit and Family Court of Australia Act 2018 ), collectively referred to as the FCFC. The inclusion of both courts is necessitated by the repeal of section 40A (see item 56 of Schedule 1 of this Bill) which currently provides a limit on the exercise of jurisdiction of the Federal Circuit Court in certain States and Territories. 

106.           The FCFC’s exercise of jurisdiction is restricted by regulation 39BB of the Family Law Regulations 1984 (as modified by items 131 to 134 of Schedule 3 of this Bill).

Item 54 - Subsection 40(6)

107.           Subsection 40(6) provides that a party to proceedings instituted or continued under the Family Law Act in the Supreme Court of a State or Territory, being proceedings that could have been instituted in the Family Court, may apply to the Family Court to have the matter transferred to it and the Family Court may order the transfer. 

108.           Item 54 omits and substitutes the part of the subsection referencing the Family Court to make provision for an application to be made to the FCFC (Division 1) (paragraph 40(6)(a)), or the FCFC (Division 2) (paragraph 40(6)(b)), and providing those courts with the power to order the transfer. This is consistent with the intention that the jurisdiction of the FCFC (Division 1) and FCFC (Division 2) will largely be coterminous under the new court structure.

Item 55 - Subsection 40(7)

109.           Subsection 40(7) provides that the standard Rules of Court may make provision in relation to a transfer under subsection 40(6). 

110.           Item 55 omits the reference to ‘standard Rules of Court’ and substitutes a reference to the ‘Federal Circuit and Family Court of Australia (Division 1) Rules and the related Federal Circuit and Family Court (Division 2) Rules’ to reflect that both Division 1 and Division 2 of the FCFC are invested with a transfer power under subsection 40(6) (see item 54 of Schedule 1 of this Bill), and that each Division has its own set of Rules. A definition of ‘applicable Rules of Court’ is to be provided in subsection 4(1) (see item 3 of Schedule 1 of this Bill).

Item 56 - Section 40A

111.           Section 40A provides that the jurisdiction of the Federal Circuit Court under the Family Law Act must not be exercised in respect of a particular proceeding in a State or Territory if the corresponding jurisdiction of the Family Court is not capable of being exercised in that State or Territory.

112.           Item 56 repeals section 40A as section 40, which contains the power to prevent the Family Court exercising jurisdiction, has been amended to cover both the FCFC (Division 1) and the FCFC (Division 2) (see item 53 of Schedule 1 of this Bill), rendering section 40A unnecessary.

Item 57 - Subsection 41(3)

113.           Subsection 41(3) provides that where the Governor-General has issued a proclamation under subsection 41(2) that section 41 applies to a Family Court created by a State, specific references in the Family Law Act to the Supreme Court of a State, are to read as references to the State Family Court. 

114.           Item 57 omits and substitutes specific section references in subsection 41(3) to correctly identify the provisions where a reference to the Supreme Court of a State must be read as a reference to the State Family Court. This amendment is necessary because of amendments that will be made by this Bill to the sections currently identified in subsection 41(3) and inserts a reference to subsection 24(2) of the Federal Court Act which relates to appeals from State Supreme Courts .

Item 58 - Subsection 41(5)

115.           Subsection 41(5) provides that references in the Family Law Act or the standard Rules of Court to a court of summary jurisdiction should not be read as a reference to a court to which section 41 applies.

116.           Item 58 omits ‘standard Rules of Court’ and substitutes ‘applicable Rules of Court’ to reflect that different sets of rules may now be relevant to this section and that this section should apply to all relevant sets of rules. A definition of applicable Rules of Court is to be provided in subsection 4(1) (see item 3 of Schedule 1 of this Bill).

Item 59 - Subsection 43(1)

117.           Subsection 43(1) provides that, in exercising jurisdiction under the Act, the Family Court and any other court exercising jurisdiction under the Act shall have regard to the principles set out in paragraphs 43(1)(a) to (d).

118.           Item 59 omits ‘The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall’ and substitutes ‘A court exercising jurisdiction under this Act must.’ This amendment removes the specific reference to the Family Court given its name change to the FCFC (Division 1) (see section 8 of the Federal Circuit and Family Court Act 2018 ). The operation of the section remains the same, such that adherence to the principles is required by all courts exercising jurisdiction under the Family Law Act.  

Item 60 - Subparagraph 44(1B)(a)(ii)

119.           Paragraph 44(1B)(a) provides that a divorce order shall not, without leave, be filed within two years of the date of the marriage unless, filed with an application, is a certificate stating that the parties have considered reconciliation with the assistance of a person specified in subparagraphs 46(1B)(a)(i) to (iii). Subparagraph 44(1B)(a)(ii) provides that, in relation to the Family Court, the Federal Circuit Court or the Family Court of a State, the specified person is an individual or organisation nominated for the parties by a family consultant.    

120.           Item 60 omits ‘Family Court, the Federal Circuit Court of Australia’ from subparagraph 44(1B)(a)(ii) and substitutes ‘Federal Circuit and Family Court of Australia’ to align with the new arrangements established under the Federal Circuit and Family Court of Australia Act 2018 and reflect the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2) (see section 8 of the Federal Circuit and Family Court of Australia Act 2018 ),collectively referred to as the FCFC.

Item 61 - Subparagraph 44(1B)(a)(iii)

121.            Paragraph 44(1B)(a) provides that a divorce order shall not, without leave, be filed within two years of the date of the marriage unless, filed with an application, is a certificate stating that the parties have considered reconciliation with the assistance of a person specified in subparagraphs 46(1B)(a)(i) to (iii). Subparagraph 44(1B)(a)(iii) provides that, in relation to a court that is not the Family Court, the Federal Circuit Court or the Family Court of a State, the specified person is an individual or organisation nominated for the parties by an appropriately qualified officer of the court.  

122.           Item 61 omits ‘Family Court, the Federal Circuit Court of Australia’ from subparagraph 44(1B)(a)(iii) and substitutes ‘Federal Circuit and Family Court of Australia’ to align with the new arrangements established under the Federal Circuit and Family Court of Australia Act 2018 and reflect the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2) (see section 8 of the Federal Circuit and Family Court of Australia Act 2018 ), collectively referred to as the FCFC.

Item 62 - Subsection 45(1)

123.           Subsection 45(1) provides that where there are pending court proceedings that have been instituted under the Family Law Act or continued in accordance with section 9, and it appears to the court that other proceedings that relate to the same marriage, void marriage or the same matter are pending in another court, the first-mentioned court may stay or dismiss the proceedings.

124.           Item 62 omits references to matters being continued in accordance with section 9 reflecting that section 9 is to be repealed because there are now no proceedings to which section 9 would apply (see item 21 of Schedule 1 of this Bill).

Item 63 - Subsection 45(2)

125.           Subsection 45(2) provides that, where there are pending court proceedings, instituted under the Family Law Act, or continued in accordance with section 9, and it appears to the court that the proceedings would better be dealt with in another court, the court may transfer the proceedings to the other court.

126.           Item 63 omits the reference to matters being continued in accordance with section 9 reflecting that section 9 is to be repealed because there are now no proceedings to which section 9 would apply (see item 21 of Schedule 1 of this Bill).

Item 64 - Paragraphs 45(2)(a) and (b)

127.           Paragraphs 45(2)(a) and (b) prohibit a transfer of pending court proceedings under subsection 45(2) where the two courts involved (the transferring and receiving courts) are the Family Court and the Federal Circuit Court.

128.           Item 64 omits paragraphs 45(2)(a) and (b) and substitutes new paragraphs 45(2)(a) and (b) with the same effect but using the new terminology to appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2) by section 8 of the Federal Circuit and Family Court of Australia Act 2018.

Item 65 - Subsection 45(2) (notes 1 and 2)

129.           Notes 1 and 2 to subsection 45(2) identify the statutory provisions which allow transfers between the Family Court and the Federal Circuit Court.  

130.           Item 65 repeals notes 1 and 2 and substitutes new notes 1 and 2. The new notes identify the powers in the Federal Circuit and Family Court of Australia Act 2018 that provide for transfers between the FCFC (Division 1) and FCFC (Division 2) using the new terminology to reflect the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2). 

Item 66 - Subparagraphs 46(1)(a)(i) to (iii)

131.           Subsection 46(1)(a) provides that, where proceedings are instituted or transferred to a court of summary jurisdiction in relation to property exceeding $20,000 and the respondent seeks an order different from that sought in the application, the court must inform the parties that unless they consent to the court hearing and determining the proceedings the court must transfer the proceedings to one of the courts specified in subparagraphs 46(1)(a)(i) to (iii). Subparagraph 46(1)(a)(i) specifies the Family Court and subparagraph 46(1)(a)(iii) specifies the Federal Circuit Court.  

132.           Item 66 repeals subparagraphs 46(1)(a)(i) to (iii) and substitutes new paragraphs 46(1)(a)(i) to (iii). New paragraph 46(1)(a)(i) specifies the FCFC (Division 2) (the continuation of the Federal Circuit Court) as one of the courts the court of summary jurisdiction must inform the parties that it may be required to transfer proceedings to. The FCFC (Division 1) (the continuation of the Family Court) is not included in the new paragraphs as the court of summary jurisdiction will not be empowered to transfer to this court under subsection 46(1). This will support an administratively efficient approach whereby all matters will be transferred into the FCFC (Division 2) and, if required, may be transferred to FCFC (Division 1) under section 117 of the Federal Circuit and Family Court of Australia Act 2018 .

Item 67 - Subparagraphs 46(1)(b)(i) to (iii)

133.           Subsection 46(1)(b) provides that, where proceedings are instituted or transferred to a court of summary jurisdiction in relation to property exceeding $20,000 and the respondent seeks an order different from that sought in the application, unless the parties agree to the court hearing and determining the proceedings the court must transfer the proceedings to one of the courts specified in subparagraphs 46(1)(b)(i) to (iii). Subparagraph 46(1)(b)(i) specifies the Family Court and subparagraph 46(1)(b)(iii) specifies the Federal Circuit Court.   

134.           Item 67 repeals subparagraphs 46(1)(b)(i) to (iii) and substitutes new paragraphs 46(1)(b)(i) to (iii)  to provide for transfers of proceedings from a court of summary jurisdiction to the FCFC (Division 2), a Family Court of a State or a Supreme Court of a State or Territory unless the parties consent to the court of summary jurisdiction hearing and determining the matter. The FCFC (Division 1) (the continuation of the Family Court) is not listed as one of the courts to which the proceedings could be transferred. This will support an administratively efficient approach whereby all matters will be transferred into the FCFC (Division 2) and, if required, may be transferred to FCFC (Division 1) under section 117 of the Federal Circuit and Family Court of Australia Act 2018 . The amendment makes no other change to the courts a matter is to be transferred to.

Item 68 - Paragraphs 46(1C)(a) to (c)

135.           Subsection 46(1C) provides that a court of summary jurisdiction must transfer proceedings to one of the courts set out in paragraphs 46(1C)(a) to (c), if the court has given a party leave to object to the court hearing and determining the matter. Paragraph 46(1C)(a) specifies the Family Court and paragraph 46(1C)(c) specifies the Federal Circuit Court.

136.           Item 68 repeals paragraphs 46(1C)(a) to (c) and substitutes new paragraphs 46(1C)(a) to (c) to provide for transfers of proceedings from a court of summary jurisdiction to the FCFC (Division 2), a Family Court of a State or a Supreme Court of a State or Territory. The FCFC (Division 1) (the continuation of the Family Court) is not be included in the new paragraphs as the court of summary jurisdiction will not be empowered to transfer to this court under subsection 46(1C). This will support an administratively efficient approach whereby all matters will be transferred into the FCFC (Division 2) and, if required, may be transferred to FCFC (Division 1) under section 117 of the Federal Circuit and Family Court of Australia Act 2018 .

Item 69 - Paragraphs 46(2A)(c) to (e)

137.           Subsection 46(2A) provides that, where proceedings are instituted or transferred to a court of summary jurisdiction in relation to a divorce order and the proceedings are defended, the court is required to transfer the proceedings to a court specified in paragraph 46(2A)(c) to (e). Paragraph 46(2A)(c) specifies the Family Court and paragraph 46(2A)(e) specifies the Federal Circuit Court.

138.           Item 69 repeals paragraphs 46(2A)(c) to (e) and substitutes new paragraphs 46(2A)(c) to (e). New paragraph 46(2A)(c) specifies the FCFC (Division 2) (the continuation of the Federal Circuit Court) as one of the courts the court of summary jurisdiction must transfer the matter to. The FCFC (Division 1) (the continuation of the Family Court) is not to be included in the new paragraphs as the court of summary jurisdiction will not be empowered to transfer to this court under section subsection 46(2A).  This will support an administratively efficient approach whereby all matters will be transferred into the FCFC (Division 2) and, if required, may be transferred to FCFC (Division 1) under section 117 of the Federal Circuit and Family Court of Australia Act 2018 . The amendment makes no other change to the courts a matter is to be transferred to.

Item 70 - Subsection 46(3A)

139.           Subsection 46(3A) provides that, if proceedings, instituted under the Family Law Act or continued under section 9 are pending in a court of summary jurisdiction, the courts specified in paragraphs 46(3A)(a) to (c) may, on application of a party or of its own motion, order the proceedings to be removed to that court.

140.           Item 70 omits ‘or continued under section 9’ as there are now no proceedings to which section 9 would apply and section 9 is being repealed (see item 21 of Schedule 1 of this Bill). 

Item 71 - Paragraphs 46(3A)(a) to (c)

141.           Paragraphs 46(3A)(a) to (c) specify the courts that may make an order transferring a matter, pending in a court of summary jurisdiction, to that court on application by a party or of its own motion. 

142.           Item 71 repeals paragraphs 46(3A)(a)to (c) and substitutes new paragraphs 46(3A)(a) to (c). New paragraph 46(3A)(a) specifies the FCFC (Division 2) (the continuation of the Federal Circuit Court) as one of the courts that may order that a matter be transferred to it. The FCFC (Division 1) (the continuation of the Family Court) will not be included in the new paragraphs as the court of summary jurisdiction will not be empowered to transfer to this court under section 46. This will support an administratively efficient approach whereby all matters will be transferred into the FCFC (Division 2) and, if required, may be transferred to FCFC (Division 1) under section 117 of the Federal Circuit and Family Court of Australia Act 2018 . The amendment makes no other change to the courts that may order a matter be transferred.

Item 72 - At the end of Part V

143.           Item 72 inserts a new ‘Division 4 - Appeals’ at the end of Part V.

144.           The Family Law Act appeals provisions of Part X are repealed by item 114 of Schedule 1 of this Bill. The Family Law Appeal Division of the Federal Court will hear all family law appeals, other than appeals from courts of summary jurisdiction (see item 227 of Schedule 1 of this Bill) and as such provisions in relation to those appeals will be included in the Federal Court Act. This is consistent with the new structure and functions of the FCFC (as provided in the Federal Circuit and Family Court of Australia Act 2018 ).

145.           New Division 4, section 47A of the Family Law Act, provides for appeals from a decree of a court of summary jurisdiction of a State or Territory, replacing existing section 96. 

146.            New subsection 47A(1) provides that an appeal from a court of summary jurisdiction of a State or Territory, exercising jurisdiction under the Family Law Act, the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 lies to either the FCFC (Division 1) (the continuation of the Family Court) or the FCFC (Division 2) (the continuation of the Federal Circuit Court), collectively known as the FCFC (paragraph 47A(1)(d)); or to the Supreme Court of that State or Territory (paragraph 47A(1)(e)). 

147.           By virtue of subsection 41(3) (as amended by item 57 of Schedule 1 of this Bill) and a proclamation made under subsection 41(2) of the Family Law Act, references to ‘the Supreme Court of a State’ in new section 47A are to be read as a reference to the Family Court of a State - which, in Western Australia, is the Family Court of Western Australia.

148.           Additionally, item 133 of Schedule 3 of this Bill, amends subregulation 39BB(1) of the Family Law Regulations 1984 to restrict, in Western Australia, the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands, the exercise of the FCFC’s jurisdiction in relation to appeals under section 47A (see new subparagraph 39BB(2)(e)(iii)). This reflects the policy intention that, in Western Australia and the other listed territories, all appeals from a decree of a court of summary jurisdiction exercising jurisdiction under the Family Law Act (including a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia) will lie to the Family Court of Western Australia, and not the FCFC.

149.           New subsection 47A(2) provides the time within which the appeal must be filed is as provided by the applicable Rules of Court that pertain to the particular court in which the appeal is filed.

150.           New subsection 47A(3) invests the Supreme Court of each State with federal family law jurisdiction, and confers jurisdiction on the Supreme Court of each Territory, to hear appeals on matters of family law from courts of summary jurisdiction that are instituted under section 47A.

151.           A note is inserted after subsection 47A(3) providing that, in relation to child support, section 10 1 of the Child Support (Assessment) Act 1989 and section 106 of the Child Support (Registration and Collection) Act 1988, are relevant as these are the sections that confer appellate jurisdiction on the Supreme Court of the Northern Territory and  a Family Court of a State in relation to decrees of a court of summary jurisdiction in the relevant State or Territory.

152.           New subsection 47A(4) provides that the Governor-General may provide, by proclamation, that a Supreme Court of the State or Territory will not institute appeals on matters of family law from courts of summary jurisdiction from a certain date. The proclamation may apply only to proceedings of a particular class to ensure that the ability of a Supreme Court to hear appeals can differ in relation to the exercise of jurisdiction under the Family Law Act, the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988.    

153.           The proclamation made under section 96, relating to the jurisdiction of the Supreme Courts of particular States and Territories to hear appeals is saved (see item 262  of Schedule 1 of this Bill) and taken to be made for the purpose of subsection 47A(4).

154.           New subsection 47A(5) provides how a court hearing an appeal under this subsection is to proceed and what evidence the court can have regard to. The court must consider the evidence that was given in the proceedings in the court of summary jurisdiction. The court may draw inferences of fact, or if it so chooses receive additional evidence given by other means that the court considers appropriate. This is consistent with the appellate jurisdiction provided to the Family Court under subsections 93A(2) and 96(4) of Part X of the Family Law Act, which is repealed by item 114 of Schedule 1 of this Bill. This jurisdiction will therefore remain in the Family Court continuing in existence as the FCFC (Division 1), and will extend to FCFC (Division 2), reflecting the intention that the jurisdiction of the FCFC (Division 1) and FCFC (Division 2) will largely be coterminous under the new court structure.

155.           New section 47B provides that where an appeal is from a decree of a court of summary jurisdiction of a State or Territory exercising jurisdiction under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 then leave of the relevant court (being the FCFC (Division 1), the FCFC (Division 2) or the Supreme Court of a State or Territory) is required. Currently, section 105 of the Child Support (Assessment) Act 1989 and section 110 of the Child Support (Registration and Collection) Act 1998 provide for these appeals, including the need for leave to appeal. New section 47B replicates the effect of these sections and provides for the time in which an application for leave to appeal must be lodged to be prescribed in the applicable Rules of Court that pertain to the particular court in which the application is being filed.

 

156.           New section 47C provides that the court may dismiss an appeal instituted under Division 4 of Part V, at any time, if it appears to the court to have no real prospect of success. This section replicates section 96AA of Part X of the Family Law Act which is repealed by item 114 of Schedule 1 of this Bill and is necessary because of the appeals jurisdiction that is retained in the Family Law Act in relation to courts of summary jurisdiction. 

157.           New subsection 47D(1) provides that an appeal to the High Court does not lie from a decree of a court of summary jurisdiction of a State or Territory, a Family Court of a State, or a Supreme Court of a State or Territory constituted by a single judge exercising jurisdiction under the Family Law Act. New subsection 47D(2) provides that if subsection 47D(1) is inconsistent with section 73 of the Constitution (which outlines the appellate jurisdiction of the High Court), subsection 47D(1) will have effect as though the words “, except by special leave of the High Court” were added to the end of subsection 47D(1). This provision is consistent with the approach taken to High Court appeals from judgments of the FCFC (Division 1) and the FCFC (Division 2) (sections  37 and 122 of the Federal Circuit and Family Court of Australia Act 2018 ),  ensuring a consistent approach   across all courts exercising family law and child support jurisdiction (that is, only to permit an appeal with special leave if the provision would otherwise be unconstitutional) . This approach further enforces the appeals pathways of section 47A and the Family Law Appeal Division of the Federal Court (see item 227 of Schedule 1 of this Bill)

158.           New section 47E provides that, despite the provisions of Division 4 of Part V of the Family Law Act, a court only has appellate jurisdiction in relation to a matter arising under regulations made for the purposes of section 111C of the Family Law Act, as provided by those regulations. The effect of section 47E is that the FCFC and a Supreme Court of a State or a Territory will not have appellate jurisdiction conferred on them by section 47A in relation to matters arising under regulations made for the purpose of section 111C of the Family Law Act. The appellate jurisdiction can only be conferred in the relevant regulation.

159.           This section is necessary to ensure that appellate jurisdiction is not inadvertently conferred on the FCFC and the Supreme Court of a State or Territory under new section 47A, where the regulations made under section 111C have conferred or invested a federal, Territory or State court with jurisdiction (either original or appellate). New section 47E is intended to have the same effect as section 96A of Part X of the Family Law Act which is repealed by item 114 of Schedule 1 of this Bill.

Item 73 - Subsection 55(5) (paragraphs (d) and (e) of the definition of appeal )

160.            Subsection 55(5) provides a definition for an appeal in relation to a divorce order.

161.           Item 73 repeals and replaces paragraphs 55(5)(d) and (e) to reflect the structure, administration and officers of the new FCFC (Division 1) (the continuation of the Family Court) and FCFC (Division 2) (the continuation of the Federal Circuit Court), respectively.

162.           These amendments identify those officers that have had, and continue to have, the authority to exercise certain powers and functions to which these paragraphs apply, and that need to be specified as a result of the new, narrower, definition of Registrar (see item 12 of Schedule 1 of this Bill).

163.           New paragraph 55(5)(d) provides that for the FCFC (Division 1), an appeal includes a review of orders made by the Chief Executive Officer, a Registrar or Deputy Registrar.

164.           New paragraph 55(5)(e) reflects that for the FCFC(Division 2) an appeal includes a review of orders made by the Chief Executive Officer or a Registrar.

Item 74 - Subsection 56(2)

165.           Subsection 56(2) provides that, if a divorce order has taken effect, any person is entitled, on application to the Registry Manager, to receive a certificate signed by the Registrar of the court in which the divorce order has taken effect.

166.           Item 74 omits all the words after ‘certificate’ in subsection 56(2) and substitutes paragraphs 56(2)(a) to (c), to reflect the structure, administration and officers of the new FCFC (Division 1) (the continuation of the Family Court), the FCFC (Division 2) (the continuation of the Federal Circuit Court), and other courts exercising family law jurisdiction.

167.           These amendments identify those officers that have had, and continue to have, the authority to exercise certain powers and functions to which these paragraphs apply, but that need to be specified as a result of the new, narrower, definition of Registrar (see item 12 of Schedule 1 of this Bill).

Item 75 - At the end of Part VI

168.           Item 75 inserts a new section 60 at the end of Part VI. New section 60 provides that no appeal lies from a divorce order after the order takes effect. New section 60 replicates section 93 of Part X of the Family Law Act which is repealed by item 114 of Schedule 1 of this Bill.

Item 76 - Subsection 60F(5) (definition of this Act )

169.           Subsection 60F(5) provides that, in section 60F a reference to this Act includes a reference to the standard Rules of Court and the Federal Circuit Court Rules.

170.           Item 76 repeals the definition of this Act in subsection 60F(5) and substitutes a new definition providing that this Act includes the broader defined term of ‘applicable Rules of Court’ to reflect that different sets of court rules that may now be relevant to this section as a result of the FCFC (Division 1), FCFC (Division 2), the Family Law Appeals Division of the Federal Court and other relevant courts exercising family law jurisdiction.  

Item 77 - Section 60G (heading)

171.           Item 77 omits ‘Family Court may grant leave’ from the heading and substitutes ‘Leave may be granted’, to reflect that the FCFC (Division 1) and FCFC (Division 2) and the other courts as described in the section now exercise family law jurisdiction and may grant leave (see item 78 of Schedule 1 of this Bill). 

Item 78 - Subsection 60G(1)

172.           Subsection 60G(1) provides the courts that may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.

173.           Item 78 omits the first occurring reference to ‘Family Court’ from subsection 60G(1) and substitutes a reference to the ‘Federal Circuit and Family Court of Australia’ to provide that the Family Court continuing in existence as the FCFC (Division 1) can grant leave under this subsection, and expanding the provision to provide that the Federal Circuit Court continuing as the FCFC (Division 2) may also grant leave. This is consistent with the objects of the Federal Circuit and Family Court of Australia Act 2018 and reflects the intention that the jurisdiction of the FCFC (Division 1) and FCFC (Division 2) will largely be coterminous under the new court structure.

Item 79 - Subsection 60H(6) (definition of this Act )

174.           Subsection 60H(6) provides that, in section 60H a reference to this Act includes a reference to the standard Rules of Court and the Federal Circuit Court Rules.

175.           Item 79 repeals the definition of this Act in subsection 60H(6) and substitutes a new definition providing that this Act includes the broader defined term of ‘applicable Rules of Court’ to reflect that different sets of court rules that may now be relevant to this section as a result of the FCFC (Division 1),  FCFC (Division 2), the Family Law Appeals Division of the Federal Court and other relevant courts exercising family law jurisdiction.  

Item 80 - Subsection 60HA(4) (definition of this Act )

176.           Subsection 60HA(4) provides that, in section 60HA a reference to this Act includes a reference to the standard Rules of Court and the Federal Circuit Court Rules.

177.           Item 79 repeals the definition of this Act in subsection 60HA(4) and substitutes a new definition providing that this Act includes the broader defined term of ‘applicable Rules of Court’ to reflect that different sets of court rules that may now be relevant to this section as a result of the FCFC (Division 1) , FCFC (Division 2), the Family Law Appeals Division of the Federal Court and other relevant courts exercising family law jurisdiction.  

Item 81 - Subsection 60HB(2) (definition of this Act )

178.           Subsection 60HB(2) provides that, in section 60HB a reference to this Act includes a reference to the standard Rules of Court and Federal Circuit Court Rules.

179.              Item 81 repeals the definition of this Act in subsection 60HB(2) and substitutes a new definition providing that this Act includes the broader defined term of ‘applicable Rules of Court’ to reflect that different sets of court rules that may now be relevant to this section as a result of the FCFC (Division 1), FCFC (Division 2), the Family Law Appeals Division of the Federal Court and other relevant courts exercising family law jurisdiction.

Item 82 - Subsections 60I(2) to (5)

180.           Subsections 60I(2) to (5) are transitional provisions providing for the family dispute resolution requirements that applied between 2006 and 2008. 

181.           Item 82 repeals subsections 60I(2) to (5) as they no longer have application.

Item 83 - Subsection 60I(6) (heading)

182.           Item 83 repeals the heading to subsection 60I(6) ‘ Phase 3 (from July 2008) ’ and substitutes a new heading ‘ Application for a Part VII order ’. This is required because the repeal of subsections 60I(2) to (5) (see item 82 of Schedule 1 of this Bill) removes the references to phases 1 and 2 and therefore renders the current phase 3 heading redundant. The substituted heading reflects that subsection 60I(6) is relevant to all applications for a Part VII order.

Item 84 - Paragraph 60J(1)(a)

183.           Paragraph 60J(1)(a) refers to circumstances when subsections 60I(7) to 60I(12) apply by referencing subsections 60I(5) and (6).     

184.           Item 84 omits ‘subsections 60I(5) and (6)’ and substitutes a reference to ‘subsection 60I(6)’ to reflect that subsection 60I(5) has been repealed (see item 82 of Schedule 1 of this Bill).

Item 85 - Subsection 64B(9) (definition of this Act

185.           Subsection 64B(9) provides that in section 64B ‘ this Act’ a reference to this Act includes a reference to the standard Rules of Court and Federal Circuit Court Rules.

186.              Item 85 repeals the definition of this Act in subsection 64B(9) and substitutes a new definition providing that this Act includes the broader defined term of ‘applicable Rules of Court’ to reflect that different sets of court rules that may now be relevant to this section as a result of the FCFC (Division 1),  FCFC (Division 2), the Family Law Appeals Division of the Federal Court and other relevant courts exercising family law jurisdiction.  

Item 86 - Subsection 65D(3) (note)

187.           The note to subsection 65D(3) provides information about the statutory provisions that provide for particular matters to be transferred between the Family Court and the Federal Circuit Court. 

188.           Item 86 repeals the note and substitutes new notes 1 and 2. The new notes identify the powers in the Federal Circuit and Family Court of Australia Act 2018 that provide for transfers of matters between the FCFC (Division 1) and FCFC (Division 2) using the new titles to appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2). 

Item 87 - Subsection 67Z(2)

189.           Subsection 67Z(2) provides that, in circumstances outlined in subsection 67Z(1), an interested person must file a notice in the prescribed form and serve a copy on the person alleged to have abused the child or from whom the child is alleged to be at risk of abuse.

190.           Item 87 omits the reference to ‘prescribed form’ and substitutes a reference to ‘an approved form’ to reflect the changes made by item 88 of Schedule 1 of this Bill.

Item 88 - Subsection 67Z(4)

191.           Item 88 inserts a definition of approved form into subsection 67Z(4) which provides that ‘approved form means a form approved for the purposes of this section under the applicable Rules of Court.’ The inclusion of this definition, in conjunction with the amendments made by items 87 and 89 of Schedule 1 of this Bill has the effect that the form required to be completed and served under subsection 67Z(2) does not need to be prescribed in, but can be instead approved under, the applicable Rules of Court.

Item 89 - Subsection 67Z(4)

192.           Item 89 repeals the definitions of prescribed form and Registry Manager in subsection 67Z(4).

193.           The definition of prescribed form will no longer be required as a result of the amendments made by items 87 and 88 of Schedule 1 of this Bill, which provide that the form is now an approved form

194.           References in this section to a Registry Manager will instead rely on the definition contained in subsection 4(1) (which is amended by item 13 of Schedule 1 of this Bill) to ensure consistency throughout the Family Law Act. 

Item 90 - Paragraph 67ZA(1)(a)

195.           Item 90 omits paragraph 67ZA(1)(a), which specifies the persons in the Family Court who have obligations under section 67ZA, and substitutes new paragraphs 67ZA(1)(a) to (ab) to cover all relevant officers in the new FCFC Division 1 (the continuation of the Family Court) and FCFC Division 2 (the continuation of the Federal Circuit Court).

196.           These amendments identify those officers that have had, and continue to have, obligations under section 67ZA, and that need to be specified as a result of a change to the definition of Registrar (see item 12 of Schedule 1 of this Bill).

Item 91 - Paragraph 67ZA(1)(c)

197.           Item 91 repeals paragraph 67ZA(1)(c), which specifies the persons in the Federal Circuit Court who have obligations under section 67ZA, as it is redundant as a result of new paragraph 67ZA(1)(ac) at item 90 of Schedule 1 of this Bill.

Item 92 - Subsection 67ZBA(2)

198.           Subsection 67ZBA(2) provides that, in circumstances outlined in subsection 67ZBA(1), an interested person must file a notice in the prescribed form and serve a copy on the party referred to in paragraph 67ZBA(1)(a) or (b).

199.           Item 92 omits the reference to ‘prescribed form’ and substitutes a reference to ‘an approved form’ to reflect the changes made by item 93 of Schedule 1 of this Bill.

Item 93 - Subsection 67ZBA(4)

200.           Item 93 inserts a definition of approved form into subsection 67ZBA(4) which provides that ‘approved form means a form approved for the purposes of this section under the applicable Rules of Court.’ The inclusion of this definition, in conjunction with the amendments made by items 92 and 94 of Schedule 1 of this Bill, has the effect that the form required to be completed and served under subsection 67ZBA(2) does not need to be prescribed in, but can be instead approved under, the applicable Rules of Court.

Item 94 - Subsection 67ZBA(4)  

201.           Item 94 repeals the definitions of prescribed form and Registry Manager in subsection 67ZBA(4).

202.           The definition of prescribed form will no longer be required as a result of the amendments made by items 92 and 93 of Schedule 1 of this Bill, which provide that the form is now an approved form

203.           References in this section to a Registry Manager will instead rely on the definition contained in subsection 4(1) (which is amended by item 13 of Schedule 1 of this Bill), to ensure consistency throughout the Family Law Act.

Item 95 - Paragraph 68P(3)(d)

204.           Subsection 68P(3) provides that, as soon as possible after making an order or granting an injunction in circumstances set out in subsection 68P(1), the court must give a copy of the order or injunction to the persons and bodies set out in paragraphs 68P(3)(a) to (f). Paragraph 68P(3)(d) specifies the relevant officers of the court to whom this paragraph applies.

205.           Item 95 repeals paragraph 68P(3)(d) and substitutes a new paragraph with subsections (i) to (iii) to reflect the structure, administration and officers of the new FCFC (Division 1) (the continuation of the Family Court), the FCFC (Division 2) (the continuation of the Federal Circuit Court), and other courts exercising family law jurisdiction.

206.           The amendments identify those officers that had, and continue to have, the requirement to receive a copy of the order or injunction, and that need to be specified as a result of the new, narrower, definition of Registrar in the Family Law Act (see item 12 of Schedule 1 of this Bill).

Item 96 - Section 69H (heading)

207.           Item 96 omits the heading to section 69H and substitutes a new heading ‘Jurisdiction of Federal Court of Australia, Federal Circuit and Family Court of Australia, State Family Courts and Northern Territory Supreme Court’, which replaces the terms ‘Family Court’ and ‘Federal Circuit Court’ with the ‘Federal Circuit and Family Court of Australia’ which collectively refers to the Family Court of Australia continuing in existence as the FCFC (Division 1) and the Federal Circuit Court continuing in existence as the FCFC (Division 2).

Item 97 - Subsection 69H(1)

208.             Section 69H(1) provides that jurisdiction is conferred on the Family Court in matters arising under this Part.

209.           Item 97 omits ‘Family Court’ as having jurisdiction under this Part and substitutes the ‘Federal Circuit and Family Court of Australia’ to provide that the FCFC (Division 1) (the continuation of the Family Court) and the FCFC (Division 2) (the continuation of the Federal Circuit Court), both have jurisdiction in relation to matters arising under Part VII of the Family Law Act. The conferral of jurisdiction on the FCFC (Division 2) is not a new conferral as the Federal Circuit Court is vested with jurisdiction by subsection 69H(4) (which, now being provided for in this item, is repealed at item 99 of Schedule 1 of this Bill). Both Divisions of the FCFC will have identical jurisdiction in relation to matters arising under Part VII. 

Item 98 - After subsection 69H(1)

210.           Section 69H confers or vests various courts with jurisdiction in relation to matters arising under Part VII of the Family Law Act.

211.           Item 98 inserts new subsection 69H(1A) that provides that jurisdiction is conferred on the Federal Court in relation to matters arising under Part VII, and is to be exercised in the Family Law Appeals Division of the Court. This amendment is required because, under the new court structure provided for by the Federal Circuit and Family Court of Australia Act 2018 , and amendments to the Federal Court Act (see Schedule 1 Part 1), the Federal Court will be responsible for the majority of appeals from decrees made under the Family Law Act and, as a consequence, will be exercising family law jurisdiction.

Item 99 - Subsection 69H(4)

212.           The requirement for Family Law Act Part VII jurisdiction to be conferred on the Federal Circuit Court (which continues in existence as the FCFC Division 2) is redundant due to the amendment in item 98 of Schedule 1 of this Bill, and therefore subsection 69H(4) is repealed.

Item 100 - Paragraph 69N(2)(a) to (d) and (3)(a) to (d)

213.           Subsection 69N(2) provides that, where proceedings for a parenting order are instituted or transferred to a court of summary jurisdiction and the respondent seeks an order different from that sought in the application, the court must inform the parties that unless they consent to the court hearing and determining the proceedings the court must transfer the proceedings to one of the courts specified in paragraphs 69N(2)(a) to (d).    

214.           Subsection 69N(3) provides that, where proceedings for a parenting order are instituted or transferred to a court of summary jurisdiction and the respondent seeks an order different from that sought in the application, unless the parties agree to the court hearing and determining the proceedings the court must transfer the proceedings to one of the courts specified in paragraphs 69N(3)(a) to (d).   

215.           Item 100 repeals paragraphs 69N(2) (a) to (d) and paragraphs 69N(3)(a) to (d) and replaces them with new paragraphs 69N(2)(a) to (c) and 69N(3)(a) to (c), respectively. New paragraphs 69N(2)(a) and 69N(3)(a) specify the FCFC (Division 2) (the continuation of the Federal Circuit Court). The Family Court (continuing as the FCFC (Division 1)) is not included in the subsection as the court of summary jurisdiction will not be empowered to transfer to this court in line with the structure, administration and functions of the new FCFC. This will support an administratively efficient approach whereby all matters will be transferred into the FCFC (Division 2) and, if required, may be transferred to FCFC (Division 1) under section 117 of the Federal Circuit and Family Court of Australia Act 2018 .  

Item 101 - Subparagraph 69N(5)(b)(i) to (iv)

216.           Paragraph 69N(5)(b) provides that despite a party not being entitled to object (without leave) to a court of summary jurisdiction hearing and determining proceedings if the parties have previously consented to the court hearing and determining the proceedings, the court may, on its own initiative, transfer the proceedings to one of the courts specified in subparagraphs 69N(5)(b)(i) to (iv).

217.           Item 101 repeals subparagraphs 69N(5)(b)(i) to (iv) and substitutes new paragraphs 69N(5)(b)(i) to (iii). New paragraph 69N(5)(b)(i) specifies the FCFC (Division 2) (the continuation of the Federal Circuit Court). The Family Court (continuing as the FCFC (Division 1)) is not included in the subsection as the court of summary jurisdiction will not be empowered to transfer to this court. This will support an administratively efficient approach whereby all matters will be transferred into the FCFC (Division 2) and, if required, may be transferred to FCFC (Division 1) under section 117 of the Federal Circuit and Family Court of Australia Act 2018 .

Item 102 - Paragraph 69N(6)(a) to (d)

218.           Subsection 69N(6) provides that a court of summary jurisdiction must transfer proceedings to one of the courts, specified in paragraphs 69N(6)(a) to (d), if the court has given a party leave to object to the court hearing and determining the matter.

219.           Item 102 repeals paragraphs 69N(6)(a) to (d) and substitutes new paragraphs 69N(6)(a) to (c). New paragraph 69N(6)(a) specifies the FCFC (Division 2) (the continuation of the Federal Circuit Court). The Family Court (continuing as the FCFC (Division 1)) is not included in the subsection as the court of summary jurisdiction will not be empowered to transfer to this court. This will support an administratively efficient approach whereby all matters will be transferred into the FCFC (Division 2) and, if required, may be transferred to FCFC (Division 1) under section 117 of the Federal Circuit and Family Court of Australia Act 2018 .

Item 103 - Section 69ZO

220.           Section 69ZO provides that certain persons (a judge, Judicial Registrar, Registrar or magistrate), who is hearing child-related proceedings in Chambers, has all the duties and powers a court has under Division 12A of Part VII of the Family Law Act.

221.           Item 103 repeals and replaces section 69ZO to reflect the structure, administration and officers of the new FCFC, including Division 1 (the continuation of the Family Court), Division 2 (the continuation of the Federal Circuit Court), and other courts exercising family law jurisdiction under this provision.

222.           The amendments identify the persons that had, and continue to have, all the duties and powers of a court under the division, but that need to be specified to reflect the relevant officers of the FCFC, and as a result of the narrower definition of Registrar in the Family Law Act (see item 12 of Schedule 1 of this Bill).

Item 104 - Subsection 69ZR(3)

223.           Subsection 69ZR(3) provides that certain persons (a judge, Judicial Registrar, Registrar or magistrate) who exercise a power under subsection 69ZR(1), is not required to disqualify himself or herself from a further hearing of the proceedings.

224.            Item 104 omits the reference to ‘judge, Judicial Registrar, Registrar or magistrate’ and substitutes a reference to ‘a person’ to ensure that this subsection captures all the persons who may exercise powers under subsection 69ZR(1). 

Item 105 - Section 70M (heading)

225.           Section 70M is headed ‘Registrar to send documents etc. to overseas jurisdiction’.

226.           Item 105 omits ‘Registrar’ from the heading and substitutes ‘Registry Manager’ to accurately reflect the person who currently has obligations under section 70M.

Item 106 - Paragraph 70NFD(a)

227.           Paragraph 70NFD(a) provides that, a community service order made under paragraph 70NFB(2)(a) by the Family Court or the Federal Circuit Court, may be varied or discharged by either of those Courts.

228.           Item 106 amends paragraph 70NFD(a) to remove the terms ‘Family Court’ and ‘Federal Circuit Court’ and replace them with the ‘Federal Circuit and Family Court of Australia (Division 1)’ or the ‘Federal Circuit and Family Court of Australia (Division 2)’, consistent with the new court structure and functions under the Federal Circuit and Family Court of Australia Act 2018.

Item 107 - Paragraph 70NFD(b)

229.           Paragraph 70NFD(b) provides that, a community service order made under paragraph 70NFB(2)(a) by a court other than the Family Court or the Federal Circuit Court, may be varied or discharged by the Family Court.

230.           Item 107 omits ‘Family Court’ from paragraph 70NFD(b) and substitutes with the term ‘Federal Circuit and Family Court of Australia’, which captures both the FCFC (Division 1) (the continuation of the Family Court) and the FCFC (Division 2) (the continuation of the Federal Circuit Court) consistent with the new court structure and functions under the Federal Circuit and Family Court of Australia Act 2018 and reflecting the intention that the jurisdiction of the FCFC (Division 1) and FCFC (Division 2) will largely become coterminous under the new court structure.

Item 108 - Subsection 79(9)

231.           Subsection 79(9) provides that the Family Court or a Family Court of a State shall not make an order under section 79 in property settlement proceedings unless one of the circumstances in paragraphs 79(9)(a) to (c) is satisfied.

232.           Item 108 replaces the first occurring reference to ‘Family Court’ with ‘Federal Circuit and Family Court (Division 1)’ to reflect the continuation of the Family Court as the FCFC (Division 1), consistent with the new court structure and functions under the Federal Circuit and Family Court of Australia Act 2018 .

Item 109 - Paragraph 79(9)(a)

233.           Paragraph 79(9)(a) provides one of the circumstances that, having been satisfied, would allow the Family Court or a Family Court of the State to make an order under section 79. The circumstance provided in paragraph 79(9)(a) is that the parties to proceedings have attended a conference with a Registrar or Deputy Registrar of the Family Court or a Registrar or Deputy Registrar of a Family Court of that State.

234.           Item 109 repeals subparagraph 79(9)(a) and substitutes a new paragraph with a subparagraph (i) - that replaces the term ‘Family Court’ with the ‘Federal Circuit and Family Court of Australia (Division 1)’ (the continuation of the Family Court), and  identifies those officers that have exercised, and continue to exercise the certain powers and functions to which the paragraph applies, and that need to be specified as a result of the new, narrower, definition of Registrar (see item 12 of Schedule 1 of this Bill).

235.           New subparagraph 79(9)(a)(ii) provides, in relation to the Family Court of a State, that the parties must attend a conference with the Registrar or Deputy Registrar of that Family Court and does not change the jurisdiction of the Family Court of a State, or its officers, to which the paragraph applies.

Item 110 - Paragraph 79H(3)(c) 

236.           Paragraph 79H(3)(c) provides that the ‘applicable Rules of Court’ may make provision for a person who satisfies the circumstances in paragraphs 79H(3)(a) to (c), to notify a court exercising jurisdiction under the Family Law Act of the proceedings under the Bankruptcy Act 1966 . The circumstances provided by paragraph 79H(3)(c) are that the person becomes a party to particular proceeding before the Federal Court or the Federal Circuit Court under the Bankruptcy Act 1966 .    

237.           Item 110 replaces the term ‘Federal Circuit Court of Australia’ with ‘Federal Circuit and Family Court of Australia (Division 2)’ to reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) as provided by the Federal Circuit and Family Court of Australia Act 2018 .

Item 111 - Subsection 90SM(9)

238.           Subsection 90SM(9) provides that the Family Court shall not make an order under section 90SM in property settlement proceedings unless one of the circumstances in paragraphs 90SM(9)(a) to (c) is satisfied.

239.           Item 111 replaces the reference to ‘Family Court’ with ‘Federal Circuit and Family Court (Division 1)’ to reflect the continuation of the Family Court as the FCFC (Division 1) as provided by the Federal Circuit and Family Court of Australia Act 2018 .

Item 112 - Paragraph 90SM(9)(a)

240.           Paragraph 90SM(9)(a) provides one of the circumstances that, having been satisfied, allowed the Family Court to make an order under section 90SM. The circumstance provided in paragraph 90SM(9)(a) is that the parties to proceedings must have attended a conference with a Registrar or Deputy Registrar of the Family Court.

241.           Item 112 repeals subparagraph 90SM(9)(a) and substitutes a new paragraph 90SM(9)(a) that reflects the structure, administration and officers of the new FCFC (Division 1) (the continuation of the Family Court), and identifies the officers that had, and continue to have, the relevant duties to which the paragraph applies, but that need to be specified as a result of the new, narrower, definition of Registrar (see item 12 of Schedule 1 of this Bill).

Item 113 - Paragraph 90SQ(3)(c)

242.           Paragraph 90SQ(3)(c) provides that the ‘applicable Rules of Court’ may make provision for a person who satisfies the circumstances in paragraphs 90SQ(3)(a) to (c), to notify a court exercising jurisdiction under the Family Law Act of the proceedings under the Bankruptcy Act 1966 . The circumstances provided by paragraph 90SQ(3)(c) are that the person becomes a party to particular proceeding before the Federal Court or the Federal Circuit Court under the Bankruptcy Act 1966 .    

243.           Item 113 replaces the term ‘Federal Circuit Court of Australia’ with ‘Federal Circuit and Family Court of Australia (Division 2)’ to reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) as provided by the Federal Circuit and Family Court of Australia Act 2018 .

Item 114 - Part X

244.           Item 114 repeals ‘Part X - Appeals’. The Family Law Appeal Division of the Federal Court will hear all family law appeals, other than appeals from courts of summary jurisdiction (see item 227 of Schedule 1 of this Bill).

245.           Appeals from courts of summary jurisdiction will continue to be governed by the Family Law Act with the FCFC and State Supreme Courts vested with jurisdiction to hear appeals from courts of summary jurisdiction under new Division 4 of Part 5 of the Family Law Act (see item 72 of Schedule 1 of this Bill).

Item 115 - Subsection 97(1)

246.           Subsection 97(1) provides that in all proceedings in the Family Court, Federal Circuit Court or in a Court of a Territory (other than the Northern Territory), when exercising jurisdiction under the Family Law Act, shall be heard in open court.

247.           Item 115 omits ‘Family Court, in the Federal Circuit Court of Australia’ and substitutes the ‘Federal Circuit and Family Court of Australia’ to reflect the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2), as provided for in section 8 of the Federal Circuit and Family Court of Australia Act 2018 .  

Item 116 - Subsection 97(1A)  

248.           Subsection 97(1A) provides that the regulations and the applicable Rules of Court may authorise proceedings to be heard by a Judge, Judicial Registrar, Registrar or magistrate sitting in Chambers.

249.           Item 116 omits the words after ‘heard’ in subsection 97(1A) and substitutes subparagraphs 97(1A)(a) to (b), to reflect the structure, administration and officers of the new FCFC, including the FCFC (Division 1) (the continuation of the Family Court), the FCFC (Division 2) (the continuation of the Federal Circuit Court), and other courts exercising family law jurisdiction under this provision.

250.           The amendments also identify the persons that the subsection applied, and continues to apply, to and that need to be specified as a result of the narrower definition of Registrar in the Family Law Act (see item 12 of Schedule 1 of this Bill).   

Item 117 - Subsection 97(2)

251.           Subsection 97(2) provides that in proceedings in the Family Court, or in another court, the court may, on application or of its own motion, make one of the orders specified in paragraphs 97(2)(a) to (c).

252.           Item 117 omits ‘Family Court,’ and substitutes ‘Federal Circuit and Family Court of Australia (Division 1)’ to simply and accurately reference the courts exercising jurisdiction under the Family Law Act to which this subsection applies. The reference to ‘Family Court’ is no longer accurate given the change to the FCFC (Division 1) as a result of the Federal Circuit and Family Court of Australia Act 2018 .   

Item 118 - Subsection 98(1)

253.           Subsection 98(1) provides that the standard Rules of Court may provide for evidence of any material matter to be given on affidavit at certain types of hearings.

254.            Item 118 omits ‘(1)’, necessitated by the amendment made by item 120 of Schedule 1 of this Bill which deletes the only other subsection in section 98.

Item 119 - Subsection 98(1)

255.           Subsection 98(1) provides that the standard Rules of Court may provide for evidence of any material matter to be given on affidavit at certain types of hearings.

256.           Item 119 omits ‘standard Rules of Court’ and substitutes ‘applicable Rules of Court’ to reflect that different sets of court rules that may now be relevant to this section as a result of the new FCFC (Division 1) and FCFC (Division 2), Family Law Appeals Division of the Federal Court, and other relevant courts exercising family law jurisdiction.

Item 120 - Subsection 98(2)

257.           Subsection 98(2) provided that section 98 (relating to the provision of evidence) does not apply to the Federal Circuit Court. This is because the Federal Circuit Court is governed by its own Act and Rules.

258.           Item 119 of Schedule 1 of this Bill amends section 98 so that the applicable Rules of Court may make provision in relation to particular evidence taking covered by this section. Given the definition of applicable Rules of Court includes rules of court made by all the courts exercising jurisdiction under the Family Law Act, (see item 3 of Schedule 1 of this Bill) this rule making power extends to the FCFC (Division 2) (the continuation of the Federal Circuit Court) and the Federal Court.

Item 121 - Sections 98AA and 98AB

259.           Section 98AA governs the administration of oaths and affirmations in the Family Court. Section 98AB governs how an affidavit, used in proceedings in the Family Court, is to be sworn or affirmed.

260.           Item 121 repeals subsections 98AA and 98AB as equivalent procedural provisions have been provided for in Chapter 3 of the Federal Circuit and Family Court of Australia Act 2018 .

Item 122 - Subsection 100B(2)

261.           Subsection 100B(2) provides that a child must not be called as a witness or present during proceedings in the Family Court, or another court exercising jurisdiction under the Family Law Act, unless the court makes an order allowing a child to be called as a witness or be present. 

262.           Item 122 omits ‘the Family Court’ from subsection 100B(2) and substitutes ‘Federal Circuit and Family Court of Australia (Division 1)’ to simply and accurately reference the courts exercising jurisdiction under the Family Law Act to which this subsection applies. The reference to ‘Family Court’ is no longer accurate given the change to the FCFC (Division 1) as a result of the Federal Circuit and Family Court of Australia Act 2018 .    

Item 123 - Subsection 102F(7) (definition of courtroom )

263.           Subsection 102F(7) defines courtroom both in relation to a split court and in relation to a court that is not split.

264.           Item 123 replaces the definition of courtroom to remove the concept of a split court that will, as a consequence of the structure of the FCFC, primarily be relevant to the Family Law Appeals Division of the Federal Court. The Federal Court Act already makes provision in relation to split courts. Section 27 of the Family Law Act, which provides for the Family Court to sit as a split court, will be repealed (see item 38 of Schedule 1 of this Bill).

Item 124 - Subsection 102G(2)

265.           Subsection 102G(2) provides the circumstance in which and how a court may direct or allow documents to be put to a person in a court that is not a split court.

266.           Item 124 omits in subsection 102G(2) ‘(that is not a split court)’ as ‘split court’ will no longer be a concept directly provided for in the Family Law Act (see items 15, 38 and 123 of Schedule 1 of this Bill).

Item 125 - Subsection 102G(3) 

267.           Subsection 102G(3) provides the circumstance in which and how a court may direct or allow documents to be put to a person in a court that is a split court.

268.           Item 125 repeals subsection 102G(3) as ‘split court’ will no longer be a concept directly provided for in the Family Law Act (see items 15, 38 and 123 of Schedule 1 of this Bill).

Item 126 - Section 102H 

269.           Section 102H provides how the circumstances in which and how a court may direct or allow document to be put to a court that is a split court.

270.           Item 126 repeals section 102H which exclusively applies to split courts as ‘split court’ will no longer be a concept directly provided for in the Family Law Act (see items 15, 38 and 123 of Schedule 1 of this Bill).

Item 127 - Subsection 102J(1)

271.           Subsection 102J(1) provides how an oath or affirmation is to be administered in relation to a person giving testimony remotely. 

272.           Item 127 omits ‘(1)’ which is necessitated by the amendment made by item 128 of Schedule 1 of this Bill repealing the only other subsection in section 102J.

Item 128 - Subsection 102J(2)

273.           Subsection 102J(2) defines ‘courtroom or other place where the court or the Judge is sitting’ for the purpose of section 102J, by reference to ‘split court’. 

274.           Item 128 repeals subsection 102J(2)’ as ‘split court’ will no longer be a concept directly provided for in the Family Law Act (see items 15, 38 and 123 of Schedule 1 of this Bill).

Item 129 - Paragraph 102K(1)(c)

275.           Item 129 omits in paragraph 102K(1)(c) ‘Division; or’ and substitutes ‘Division’ which is required because of the repeal of paragraph 102K(1)(d) (see item 130 of Schedule 1 of this Bill).

Item 130 - Paragraph 102K(1)(d)

276.           Subsection 102K(1) provides that the court or a judge may make such orders as the court or judge thinks just for the payment of expenses , incurred in connection  with the circumstances outlined in paragraphs 102K(1)(a) to (d).

277.           Paragraph 102K(1)(d) specifies the court sitting as a split court as one of the relevant circumstances for the purpose of subsection 102K(1).

278.            Item 130 repeals paragraph 102K(1)(d) as ‘split court’ will no longer be a concept directly provided for in the Family Law Act (see items 15, 38 and 123 of Schedule 1 of this Bill).

Item 131 - Division 3 of Part XI

279.           Division 3 of Part XI exclusively deals with splits courts.

280.           Item 131 repeals Division 3 of Part XI as ‘split court’ will no longer be a concept directly provided for in the Family Law Act (see items 15, 38 and 123 of Schedule 1 of this Bill).

Item 132 - Subsection 102Q(1) (paragraphs (a) and (b) of the definition of appropriate court official )

281.           Subsection 102Q(1) provides a list of definitions for the purpose of Part XIB - Vexatious Proceedings. Paragraphs 102(Q)(a) and (b) provide the definition of ‘appropriate court official’ in relation to the Family Court and the Federal Circuit Court, respectively.

282.           Item 132 repeals paragraphs 102Q(1)(a) and (b) of the definition of ‘appropriate court official’, and substitutes ‘(a) in relation to the Federal Circuit and Family Court of Australia—the Chief Executive Officer; and’. This is to reflect that, under the new court structure, the appropriate court official will be the same person for the FCFC (Division 1) and the FCFC (Division 2) (collectively known as the FCFC).

Item 133 - Subsection 105(1) (note)

283.           Subsection 105(1) provides that, subject to Part XIII of the Act, the regulations, and the applicable Rules of Court, all decrees made under the Family Law Act may be enforced by any court having jurisdiction under the Act.

284.           The note to subsection 105(1) provides that, for example, the Federal Circuit Court can enforce decrees made by the Family Court.

285.           Item 133 repeals the note to subsection 105(1) as the references are no longer applicable.

Item 134 - Subsection 109A(1)

286.            Subsection 109A(1) provides that the power for judges to make Rules of Court under section 123 of the Act extends to making rules for or in relation to, or anything incidental to, the enforcement by the court of certain orders under the Family Law Act, the Child Support (Registration and Collection) Act 1988 , or the Child Support (Assessment) Act 1989 .

287.           Item 134 omits ‘the Judges, or a majority of them’ and substitutes ‘the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)’ to appropriately reflect that the Chief Justice of the FCFC (Division 1) has the power to make Rules of Court under section 123 of the Act (see item 152 of Schedule 1 of this Bill).

Item 135 - Subsection 109A(5) (note)

288.            Subsection 109A(5) provides that for the purposes of section 109A, property means real or personal property. The note to subsection 109A(5) provides that the powers to make Rules of Court are also contained in sections 26B and 37A of the Act.

289.           Item 135 repeals the note to subsection 109A(5). The note is no longer required as Part IV (which contains section 26B and 37A) is repealed by Item 38 of Schedule 1 of this Bill, and substantially provided for in the Federal Circuit and Family Court of Australia Act 2018 .

Item 136 - After section 109A

290.           Item 136 inserts section 109AA, ‘Rules of Court relating to enforcement - Family Law Appeal Division of the Federal Court of Australia’, and section 109AB, ‘Rules of Court relating to enforcement - Federal Circuit and Family Court of Australia (Division 1)’, after section 109A.

291.           Section 109AA provides that the rule making power in the Federal Court Act includes the rule making power in section 109A.

292.           Section 109AB provides that the rule making power in relation to the FCFC (Division 1) includes the rule making power in section 109A.

293.           These sections are required so that the rules of the kind covered under section 109A can be made in the rules that apply to the Family Law Appeal Division of the Federal Court, which will hear all family law appeals other than appeals from courts of summary jurisdiction (see item 227 of Part 1 Schedule 1 of this Bill), and made in the rules that apply to the new FCFC (Division 1) (the continuation of the Family Court). The application of this rule making power to the FCFC (Division 2) (the continuation of the Federal Circuit Court) is provided for in section 109B (as amended by items 137 to 141 of Schedule 1 of this Bill).

Item 137 - Section 109B (heading)

294.           Section 109B is headed ‘Rules of Court relating to enforcement - Federal Circuit Court’.

295.           Item 137 omits ‘Federal Circuit Court’ from the heading and substitutes ‘Federal Circuit and Family Court of Australia (Division 2)’ to reflect that the Federal Circuit Court continues as the FCFC (Division 2) as provided for in the Federal Circuit and Family Court of Australia Act 2018 .

Item 138 - Subsection 109B(1)

296.           Subsection 109B(1) provides that section 109A applies to the making of Rules of Court under section 81 of the Federal Circuit Court Act, in a corresponding way to how it applies to the making of Rules of Court under section 123 of the Act.

297.           Item 138 omits ‘section 81 of the Federal Circuit Court of Australia Act 1999’ and substitutes ‘Chapter 4 of the Federal Circuit and Family Court of Australia Act 2018’ to appropriately reference the appropriate rule making power in relation to the FCFC (Division 2), noting that the Federal Circuit Court Act is repealed Schedule 4 of this Bill.

Item 139 - Paragraphs 109B(2)(a) and (b)

298.           Paragraphs 109B(2)(a) and (b) provide that, for the purpose of the application of section 109A in accordance with subsection 109B(1), the references to ‘the court’ in subsections 109A(1) and (2) are to be read as a reference to the ‘Federal Circuit Court of Australia’.

299.           Item 139 omits ‘Federal Circuit Court of Australia’ and substitutes ‘Federal Circuit and Family Court of Australia (Division 2)’ to appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) as provided for in the Federal Circuit and Family Court of Australia Act 2018 .

Item 140 - Paragraph 109B(2)(c)

300.           Paragraph 109B(2)(c) provides that, for the purpose of the application of section 109A in accordance with subsection 109B(1), the reference to a ‘Registrar’ in subsection 109A(2) are to be read as a reference to a ‘Registrar of the Federal Circuit Court of Australia’.

301.           Item 140 omits ‘a Registrar of the Federal Circuit Court of Australia’ and substitutes ‘the Chief Executive Officer, or a Registrar of the Federal Circuit and Family Court of Australia (Division 2)’ to appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2), and to identify those relevant officers of the court that the section applied, and continues to apply, which needs to be specified as a result of the narrower definition of Registrar in the Family Law Act (see item 12 of Schedule 1 of this Bill).

Item 141 - Subsection 109B(3)

302.           Subsection 109B(3) provides that section 109A has no effect in relation to the Federal Circuit Court except as provided by subsections 109B(1) and (2).

303.           Item 141 replaces the term ‘Federal Circuit Court of Australia’ with ‘Federal Circuit and Family Court of Australia (Division 2)’ to reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) as provided by the Federal Circuit and Family Court of Australia Act 2018 .

Item 142 - At the end of subsection 111C(5)

304.           Subsection 111C(5) provides that regulations made for the purpose of section 111C may confer jurisdiction on a federal court or a court of a territory, or invest a court of a state with federal jurisdiction, in addition to any other jurisdiction provided for under the Family Law Act.

305.           Item 142 inserts, at the end of subsection 111C(5), ‘, the Federal Circuit and Family Court of Australia Act 2018 or the Federal Court of Australia Act 1976 ’, to recognise that these Acts also provide family law jurisdiction.

Item 143 - Subsection 111C(7A)

306.           Subsection 111C(7A) provides that the power of Judges to make Rules of Court under section 123 extends to making Rules of Court for or in relation to the making of adoption orders.

307.           Item 143 omits ‘the Judges, or a majority of them,’ and substitutes ‘the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)’ to reflect that the Chief Justice of the FCFC (Division 1) has the power to make Rules of Court under section 123 of the Family Law Act (see item 152 of Schedule 1 of this Bill).

Item 144 - After subsection 111C(7A)

308.           Item 144 inserts, after subsection 111C(7A), subsections (7B), (7C) and (7D), to extend the rule making power of the relevant courts exercising family law jurisdiction, as provided in the Federal Circuit and Family Court of Australia Act 2018 , and the amendments to the Federal Court Act (Part 1 of Schedule 1 of this Bill). 

309.           Subsection 111C(7B) provides that the rule making power in the Federal Court Act extends to the making of Rules of Court for or in relation to adoption orders.

310.           Subsection 111C(7C) provides that the rule making power of the Chief Justice in relation to the FCFC (Division 1) extends to the making of Rules of Court for or in relation to adoption orders.

311.           Subsection 111C(7D) provides that the rule making power of the Chief Judge in relation to the FCFC (Division 2) extends to the making of Rules of Court for or in relation to adoption orders.

Item 145 - Paragraph 111CV(1A)(b)

312.           Section 111CV relates to the obligation to inform a competent authority about serious danger to a child in relation to international protection of children. Subsection 111CV(1A) specifies who this obligation applies to under the section. Paragraph 111CV(1A)(b) specifies ‘the Registrar or a Deputy Registrar of a Registry of the Family Court of Australia’.

313.           Item 145 repeals paragraph 111CV(1A)(b) and substitutes paragraphs 11CV(1A)(b) and (bb), which specifies the Chief Executive Officer, Registrar or Deputy Registrar of the FCFC (Division 1), and a Registrar of the FCFC (Division 2), respectively.

314.           This reflects the structure, administration and officers of the Federal Court and new FCFC exercising family law jurisdiction, including the FCFC (Division 1) (the continuation of the Family Court), and the FCFC (Division 2) (the continuation of the Federal Circuit Court).

315.           The amendments identify the relevant officers to which the subsection applied, and continues to apply, which needs to be specified as a result of the narrower definition of Registrar in the Family Law Act (see item 12 of Schedule 1 of this Bill).

Item 146 - Paragraph 111CV(1A)(d)

316.           Section 111CV relates to the obligation to inform a competent authority about serious danger to a child in relation to international protection of children. Subsection 111CV(1A) specifies who this obligation applies to under the section. Paragraph 111CV(1A)(d) specifies ‘a Registrar of the Federal Circuit Court of Australia’.

317.           Item 146 repeals paragraph 111CV(1A)(d) as the updated reference to a Registrar of the FCFC (Division 2), consistent with the structure, administration and functions of the new FCFC, is provided for in new paragraph 111CV(1A)(bb) (see item 145 of Schedule 1 of this Bill).

Item 147 - Section 112AA (definition of applicable Rules of Court )

318.           Item 147 repeals the definition of applicable Rules of Court , as item 3 of Schedule 1 of this Bill substitutes an amended definition that captures all the different rules applicable to the different courts exercising jurisdiction under the Family Law Act.

Item 148 - Subsection 112AK(1)

319.           Subsection 112AK(1) provides that orders made under section 112AD by the Family Court may be varied or discharged by the Family Court (paragraph 112AK(1)(a)). If an order was made by another court under section 112AD, it may be varied or discharged by the court that made the order or the Family Court (paragraph 112AK(1)(b)).  

320.           Item 148 repeals subsection 112AK(1) and substitutes a new subsection 112AK(1) providing that the relevant order may be varied or discharged by the court that made the order or the FCFC, which includes FCFC (Division 1) (the continuation of the Family Court) and the FCFC (Division 2) (the continuation of the Federal Circuit Court).

Item 149 - Subsection 115(2)

321.           Section 115 provides for the establishment of a Family Law Council. Subsection 115(2) provides that the Council shall consist of, amongst others, a ‘Judge of the Family Court’.

322.           Item 149 omits ‘Family Court’ and substitutes ‘Federal Circuit and Family Court of Australia’ to appropriately reflect that both the FCFC (Division 1) (continuation of the Family Court) and FCFC (Division 2) (continuation of the Federal Circuit Court) both exercise identical family law jurisdiction as provided by the Federal Circuit and Family Court of Australia Act 2018 . Therefore, a judge from either the FCFC (Division 1) or the FCFC (Division 2) is an appropriate person to sit on a Family Law Council.    

Item 150 - At the end of subsection 117(2)

323.           Subsection 117(2) relates to the court’s ability to make orders as to costs and security for costs as it considers just, subject to other subsections.

324.           Item 150 inserts two notes at the end of subsection 117(2) directing readers to the relevant provisions of the Federal Circuit and Family Court of Australia Act 2018, which contain further provisions about the award of costs.

Item 151 - Subsection 121(10) (note)

325.           The note to subsection 121(10) provides that powers to make Rules of Court are also contained in sections 26B, 37A, 109A and 123 of the Act.

326.           Item 151 omits ‘26B, 37A,’ from the note as these sections are contained in Part IV of the Family Law Act which is repealed by item 38 of Schedule 1 of this Bill.

Item 152 - Subsection 123(1)

327.           Section 123 provides the Judges, or a majority of them, the power to make Rules of Court in relation to the practice and procedure to be followed by the Family Court and other courts exercising jurisdiction under the Family Law Act. 

328.           Item 152 omits ‘Judges, or a majority of them,’ and substitutes ‘Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)’ to reflect that the Chief Justice of the FCFC (Division 1) has the power to make Rules of Court under section 123 of the Family Law Act. By virtue of amendments made by item 164 of Schedule 1 of this Bill, Rules of Court made under section 123 will not apply to the FCFC (Division 1) (the continuation of the Family Court), the FCFC (Division 2) (the continuation of the Federal Circuit Court), or the Federal Court, but will continue to apply to other courts exercising jurisdiction under the Family Law Act.

Item 153 - Subsection 123(1)

329.           Section 123 provides the Judges, or a majority of them, the power to make Rules of Court in relation to the practice and procedure to be followed by the Family Court and other courts exercising jurisdiction under the Family Law Act. 

330.           Item 153 omits ‘the Family Court and any other courts’ from subsection 123(1) and substitutes ‘a court’ to reflect that, by virtue of amendments made by item 164 of Schedule 1 of this Bill, Rules of Court made under section 123 will not apply to the FCFC (Division 1) (the continuation of the Family Court).

Item 154 - Subsection 123(1)

331.           Section 123 provides the Judges, or a majority of them, the power to make Rules of Court in relation to the practice and procedure to be followed by the Family Court and other courts exercising jurisdiction under the Family Law Act. 

332.           Item 154 omits ‘those courts’ from subsection 123(1) and substitutes ‘the court’, which is required as a result of the amendments made by item 153 of Schedule 1 of this Bill to ensure that the language used throughout subsection 123(1) is consistent.

Item 155 - Paragraph 123(1)(b)

333.           Paragraph 123(1)(b) provides that the rule making power in section 123 includes a power providing for and in relation to the manner of service of process of the Family Court or another court exercising jurisdiction under the Act.

334.           Item 155 omits ‘the Family Court or another court’ from paragraph 123(1)(b) and substitutes ‘a court’ necessitated by the amendments made by items 153 and 164 Schedule 1 of this Bill.

Item 156 - Paragraphs 123(1)(bb), (c) and (d)

335.           Paragraphs 123(1)(bb), (c) and (d) specify particular, Family Court specific practices and procedures that are covered by the rule making power in section 123.

336.           Item 156 repeals paragraphs 123(1)(bb), (c) and (d), as Rules of Court made under section 123 will not govern the FCFC (Division 1) (the continuation of the Family Court) (see item 164 of Schedule 1 of this Bill).

Item 157 - Paragraph 123(1)(f)

337.           Paragraph 123(1)(f) expressly refers to the Family Court in relation to a particular practice that is covered by the rule making power in section 123.

338.           Item 157 omits the ‘Family Court or another court’ in paragraph 123(1)(b)  and ‘ substitutes ‘a court’ as the Rules of Court, made under section 123, will not govern the FCFC (Division 1) (see item 164 of Schedule 1 of this Bill) but this paragraph will still be relevant to other courts governed by the section 123 Rules of Court.

Item 158 - Paragraph 123(1)(ma)

339.           Paragraph 123(1)(ma) expressly refers to Division 2 and 3 of Part XI in relation to a particular practice that is covered by the rule making power in section 123.

340.           Item 158 omits ‘Divisions 2 and 3’ from paragraph 123(1)(ma) and substitutes ‘Division 2’, as Division 3 of Part XI,  which relates to split courts, is repealed by this Bill (see item 131 of Schedule 1 of this Bill).

Item 159 - Subparagraph 123(1)(sda)(i)

341.           Paragraph 123(1)(sda) provides that the procedures to be followed by family counsellors is covered by the rule making power in section 123.

342.           Item 159 omits ‘subsection 38BD(1) of this Act’ from subparagraph 123(1)(sda)(i) and substitutes ‘subsection 247(1) of the Federal Circuit and Family Court of Australia Act 2018 ’, to provide the correct legislative reference relating to the authorisation of family counsellors as Part IVA is repealed by this Bill (see item 38 of Schedule 1 of this Bill) and substantially replicated in the Federal Circuit and Family Court of Australia Act 2018 .

Item 160 - Subparagraph 123(1)(sdb)(i)

343.           Paragraph 123(1)(sdb) provides that the procedures to be followed by family dispute resolution practitioners is covered by the rule making power in section 123.

344.           Item 160 omits ‘subsection 38BD(2) of this Act’ from subparagraph 123(1)(sdb)(i) and substitutes ‘subsection 247(2) of the Federal Circuit and Family Court of Australia Act 2018 ’ to provide the correct legislative reference relating to the authorisation of family dispute resolution practitioners as Part IVA is repealed by this Bill (see item 38 of Schedule 1 of this Bill) and substantially replicated in the Federal Circuit and Family Court of Australia Act 2018 .  

Item 161 - Paragraph 123(1)(sea)

345.           Paragraph 123(1)(sea) provides that matters relating to the costs of family counselling is covered by the rule making power in section 123.

346.           Item 161 omits ‘subsection 38BD(1) of this Act’ from paragraph 123(1)(sea) and substitutes ‘subsection 247(1) of the Federal Circuit and Family Court of Australia Act 2018 ’ to provide the correct legislative reference relating to the authorisation of family counsellors, as Part IVA is repealed by this Bill (see item 38 of Schedule 1 of this Bill) and substantially replicated in the Federal Circuit and Family Court of Australia Act 2018 .  

Item 162 - Paragraph 123(1)(seb)

347.           Paragraph 123(1)(seb) provides that matters relating to the costs of family dispute resolution is covered by the rule making power in section 123.

348.           Item 162 omits ‘subsection 38BD(2) of this Act’ from paragraph 123(1)(seb) and substitutes ‘subsection 247(2) of the Federal Circuit and Family Court of Australia Act 2018 ’ to provide the correct legislative reference relating to the authorisation of family dispute resolution practitioners , as Part IVA is repealed by this Bill (see item 38 of Schedule 1 of this Bill) and substantially replicated in the Federal Circuit and Family Court of Australia Act 2018 .  

Item 163 - At the end of subsection 123(1)

349.           Section 123 provides the Judges, or a majority of them, the power to make Rules of Court in relation to the practice and procedure to be followed by the Family Court and other courts exercising jurisdiction under the Family Law Act. 

350.            Item 163 inserts, at the end of subsection 123(1), a note specifying ‘For other powers to make Rules of Court, see section 109A and subsection 111C(7A)’, to direct readers to these other rule making powers.

Item 164 - Subsection 123(1A)

351.           Subsection 123(1A) provides that a reference in subsection 123(1) to a ‘court exercising jurisdiction under this Act’ does not include a reference to the Federal Circuit Court of Australia.

352.           Item 164 omits ‘Federal Circuit Court of Australia’, and substitutes ‘Federal Court of Australia or the Federal Circuit and Family Court of Australia’. This provides that the Rules of Court made for the purposes of section 123(1) continue to not apply to the FCFC (Division 2) (the continuation of the Federal Circuit Court), and extends this exclusion to the FCFC (Division 1) and the Federal Court. The rule making powers for these courts are provided in sections 56 and 184 of the Federal Circuit and Family Court of Australia Act 2018 , and the Federal Court Act.    

Item 165 - Subsection 123(2)

353.           Subsection 123(2) provides how the Legislation Act 2003 is to apply to Rules of Court made by Judges.

354.           Item 165 omits ‘made by Judges under this section or any other Act’ in subsection 123(2) and substitutes ‘made by the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) under this section or any other Act (other than the Federal Circuit and Family Court of Australia Act 2018 )’. This reflects that the Chief Justice of the FCFC (Division 1) will be empowered to make Rules of Court under section 123 of the Act (see item 153 Schedule 1 of this Bill) for certain courts exercising family law jurisdiction, other than the FCFC (Division 1) and the FCFC (Division 2) which have their own rule making provisions under the Federal Circuit and Family Court of Australia Act 2018 .

Item 166 - Paragraph 123(2)(b)

355.           Paragraph 123(2)(b) provides how references to a ‘rule-maker’ in the Legislation Act 2003 are to be read in relation to Rules of Court made by Judges. Specifically paragraph 123(2)(b) provides that  the Legislation Act is to be read as if a reference to a ‘rule-maker’ is a reference to the Chief Justice acting on behalf of the Judges.

356.           Item 166 repeals paragraph 123(2)(b) as it is no longer necessary as the ‘rule-maker’ under subsection 123(1) will be a single person (the Chief Justice of the FCFC (Division 1)) as a result of amendments made by item 153 of Schedule 1 of this Bill. 

Item 167 - Subsection 123(2A)

357.           Subsection 123(2A) provides that despite section 16 of the Legislation Act 2003 (which relates to Office of Parliamentary Counsel assistance with drafting) not applying in relation to rules of court made by Judges under this or any other Act, the Office of Parliamentary Counsel may provide assistance in the drafting of rules if the Chief Justice so desires.

358.           Item 167 omits ‘made by Judges under this or any other Act’ from 123(2A) and substitutes ‘made by the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) under this section’ to reflect that the Chief Justice of the FCFC (Division 1) has the power to make Rules of Court under section 123 (see item 153 Schedule 1 of this Bill), and provide that the Office of Parliamentary Counsel may assist in drafting Rules of Court made under section 123.

Item 168 - Subsection 123(3) (including the note)

359.           Subsection 123(3) provides a definition of Judge for the purpose of the section. The note to subsection 123(3) states that the power to make Rules of Court conferred by this section is extended by section 109A and subsection 111C(7A) and that powers to make Rules of Court are also contained in section 26B and 37A.

360.           Item 168 repeals subsection 123(3) and the note. The definition of ‘Judge’ in relation to this section is no longer required, as it is only the Chief Justice of the FCFC (Division 1) that has rule making powers under section 123 (see item 153 of Schedule 1 of this Bill). The note includes references to sections 26B and 37A that will be repealed (see item 38 of Schedule 1 of this Bill) and refers to other rule making sections that are now provided for in item 163 of Schedule 1 of this Bill.

Item 169 - Subsection 124(1)  

361.           Subsection 124(1) provides that there shall be a Rules Advisory Committee consisting of judges of the Family Court, Family Courts of States and other persons appointed in accordance with the section.

362.           Item 169 omits ‘Family Court of Australia’ and substitutes ‘Federal Circuit and Family Court of Australia (Division 1), such judges of the Federal Circuit and Family Court of Australia (Division 2)’ to appropriately reflect the continuation of the Family Court as the FCFC (Division 1) as provided in the Federal Circuit and Family Court of Australia Act 2018 and to provide that judges of both the FCFC (Division 1) and the FCFC (Division 2) can be members of the Rules Advisory Committee.   

Item 170 - Subsection 124(1)

363.           Subsection 124(1) provides that there shall be a Rules Advisory Committee consisting of judges of the Family Court, Family Courts of States and other persons appointed ‘in accordance with the section’.

364.           Subsection 124(3) requires members of the Rules Advisory Committee to be appointed by the Governor-General on the nomination of the Attorney-General after consultation with the Chief Judge of the Family Court.

365.           Item 170 omits ‘in accordance with this section’ from subsection 124(1) and substitutes ‘by the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)’ as the current appointment process is unduly onerous, Item 173 of Schedule 1 of this Bill repeals subsection 124(3).

Items 171 and 172 - Subsection 124(2)

366.           Subsection 124(2) provides that the function of the Rules Advisory Committee is to provide the Judges referred to in section 123 such advice in relation to the making of standard Rules of Court as is requested from time to time by those Judges.

367.           Item 171 omits ‘the Judges referred to in section 123’ from subsection 124(2) and substitutes ‘the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)’ to reflect that the Chief Justice of the FCFC (Division 1) possesses the rule making power under section 123 (see item 153 of Schedule 1 of this Bill).

368.           Item 172 omits ‘those Judges’ from subsection 124(2) and substitutes ‘the Chief Justice of the Court’, referring to the Chief Justice of the FCFC (Division 1) who is the only Judge now relevant in this subsection.

Item 173 - Subsection 124(3)

369.           Subsection 124(3) provides how members of the Rules Advisory Committee shall be appointed. Appointments are made by the Governor-General, on the nomination of the Attorney-General after consultation with the Chief Justice of the Family Court of Australia.

370.           Item 173 repeals subsection 124(3) as this appointment process is considered to be unnecessarily onerous and amendments made by item 170 of Schedule 1 of this Bill provide that the appointments can be made by the Chief Justice of the FCFC (Division 1).

Item 174 - Subsection 124(6)

371.            Subsection 124(6) provides that members of the Rules Advisory Committee may resign in writing to the Governor-General.

372.           Item 174 omits ‘Governor-General’ and substitutes ‘Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)’ to align with the amendment to subsection 124(1) made by items 170 and 173 of Schedule 1 of this Bill, which provides for the appointment of members to the Committee to be made by the Chief Justice of the FCFC (Division 1).

Item 175 - Paragraph 125(1)(ba)

373.           Subsection 125(1) provides that the Governor-General may make regulations prescribing all matters that are required or permitted by the Family Law Act to be prescribed, or are necessary or convenient to be prescribed for carrying out or giving effect to the Act. Paragraph 125(1)(ba) provides that regulations may be made in relation to the authorisation of officers or staff members of the Family Court as family counsellors or family dispute resolution practitioners under subsections 38BD(1) and (2), respectively.

374.           Item 175 repeals paragraph 125(1)(ba), as Part IVA of the Act is repealed by this Bill (see item 38 Schedule 1 of this Bill) and equivalent authorisation provisions and regulation making powers are included in the Federal Circuit and Family Court of Australia Act 2018 .

Item 176 - Paragraph 125(1)(baa)

375.           Subsection 125(1) provides that the Governor-General may make regulations prescribing all matters that are required or permitted by the Act to be prescribed, or are necessary or convenient to be prescribed for carrying out or giving effect to the Act. Paragraph 125(1)(baa) provides that regulations may be made modifying or adapting the provisions of the Legislation Act 2003 (except certain sections) in their application to the Family Court and any other court exercising jurisdiction under the Act.

376.           Item 176 omits ‘the Family Court and any other court’ and substitutes ‘a court’. Reference to Family Court is omitted because an equivalent regulation making power that applies to the FCFC (Division 1) (the continuation of the Family Court) is included in the Federal Circuit and Family Court of Australia Act 2018 .

Item 177 - Paragraph 125(1)(ca)

377.           Paragraph 125(1)(ca) provides that regulations may be made prescribing fees payable for services provided by the Family Court in circumstances other than where a court orders the provision of the services.

378.           Item 177 repeals paragraph 125(1)(ca) as an equivalent regulation making power that applies to the FCFC (Division 1) (the continuation of the Family Court) is included in the Federal Circuit and Family Court of Australia Act 2018 , and, given the new court structure, this regulation making power will no longer appropriately lie in section 125.

Item 178 - Paragraphs 125(1)(d) and (e)

379.           Paragraphs 125(1)(d) and (e) provide that the section 125 regulation making power includes exempting persons from paying court (and other) fees and refunding court (and other) fees, respectively.

380.           Item 178 omits ‘and fees prescribed under paragraph (ca)’ from paragraphs 125(1)(d) and (e) as paragraph 125(1)(ca) is repealed by item 177 of Schedule 1 of this Bill.

 

Federal Court of Australia Act 1976

Item 179 - Section 4 (definition of administrative affairs )

381.           Item 179 repeals the existing definition of ‘administrative affairs’ in section 4 of the Federal Court of Australia Act 1976 and replaces it with a new definition. The new definition makes it clear that references to administrative affairs have different meanings in relation to the Federal Court and the FCFC. In relation to the Federal Court, new paragraph (a) of the definition provides that administrative affairs has a meaning affected by subsection 18A(1A). In relation to the FCFC (Division 1), administrative affairs has the meaning given to it by the definition in the Federal Circuit and Family Court of Australia Act 2018 in relation to that Division. In relation to the FCFC (Division 2) administrative affairs has the meaning given to it by the definition in the Federal Circuit and Family Court of Australia Act 2018 in relation to that Division.

Item 180 - Section 4 (definition of corporate services )

382.           Item 180 repeals the existing definition of ‘corporate services’ in section 4 and replaces it with a new definition. The definition makes it clear that references to corporate services have different meanings in relation to different courts. In relation to the Federal Court, corporate services has the meaning given to it by subsection 18A(1B). In relation to the FCFC (Division 1), corporate services has the meaning given to it by the definition in the Federal Circuit and Family Court of Australia Act 2018 in relation to that Division. In relation to the FCFC (Division 2) corporate services has the meaning given to it by the definition in the Federal Circuit and Family Court of Australia Act 2018 in relation to that Division.

Item 181 - Section 4 (definition of Division )

383.           Item 181 makes amendments to the definition of ‘Division’ in section 4 to reflect the introduction of the new Family Law Appeal Division. In particular, Item 181 includes a reference to the Family Law Appeal Division so that the definition of Division captures all the Divisions of the Federal Court (see item 191).

Item 182 - Section 4 (definition of Family Court Chief Executive Officer )

384.           Item 182 repeals the definition of ‘Family Court Chief Executive Officer’ in section 4. Under the new reforms, the Chief Executive Officer of the Federal Court will also support the Chief Justice of the FCFC (Division 1) and the Chief Judge of the FCFC (Division 2). Having a single Chief Executive Officer across all of the courts will assist in providing for the consistent management of federal courts (excluding the High Court). As there will no longer be the position of the Family Court Chief Executive Officer, the definition is not necessary.

Item 183 - section 4

385.           Item 183 inserts definitions for the ‘Family Court of a State’, ‘family law or child support proceeding’ and ‘Federal Circuit and Family Court of Australia’ in section 4 of the Act.  ‘Family Court of a State’ means a court to which section 41 of the Family Law Act applies. ‘Family law or child support proceeding’ means a proceeding under the Family Law Act, the Child Support (Assessment) Act 1989, or the Child Support (Registration and Collection) Act 1988 (other than a proceeding under section 72Q of that Act) . The ‘Federal Circuit and Family Court of Australia’ means either the FCFC (Division 1) or the FCFC (Division 2). The definition is flexible in that it allows references to the FCFC in the Act to capture either or both Divisions depending on the circumstances in which it is used. Where reference in the Act needs to be made to a specific Division of the FCFC, reference is made specifically to the FCFC (Division 1) or the FCFC (Division 2).

Item 184 - section 4

386.           Item 184 repeals the definitions of ‘Federal Circuit Court’ and ‘Federal Circuit Court Chief Executive Officer’ from section 4. The definition of ‘Federal Circuit Court’ is no longer required as the Federal Circuit Court will be continued as the FCFC (Division 2). The definition of ‘Federal Circuit Court Chief Executive Officer’ is no longer necessary as there will not be a Federal Circuit Court Chief Executive Officer under the new federal court structure.

Item 185 - Section 4 (at the end of the definition of judgment )

387.           Item 185 amends to definition of ‘judgment’ in section 4 of the Act to clarify that, for the purposes of a matter before the Family Law Appeal Division, the definition includes a decision and a refusal to make a decree or order. The inclusion of these additional words reflects the definition of ‘decree’ in the Family Law Act, which includes a refusal to make a decree or order.

Item 186 - Subsection 6(2)

388.           Item 186 amends the requirements for being appointed as a Judge in subsection 6(2). In particular, the structure of the subsection is amended to add an additional requirement that a person must have the appropriate knowledge, skills and experience to deal with the kinds of matters that may come before the Court. This is to ensure that not only does a person need to have the necessary duration of experience as outlined in new paragraph (a), but also the appropriate type of knowledge, skill and experience to be appointed as a Judge of the Federal Court. The inclusion of this additional requirement reflects the current practice for appointing Judges.

Item 187 - Section 6A (note)

389.           Item 187 repeals the existing note to section 6A and replaces it with a new note. Section 6A provides that the Governor-General may assign a Judge to one of the Divisions of the Federal Court and vary any such assignment with the consent of the relevant Judge. The new note is not substantively different from the existing note, except that it reflects that there are now three Divisions of the Federal Court rather than two Divisions. The new note provides that a Judge (including the Chief Justice) who is not assigned to a Division of the Federal Court may exercise the powers of the Federal Court in any Division.

Item 188 - Subsection 7(2)

390.           Item 188 amends subsection 7(2), which provides that a person who is acting as the Chief Justice in accordance with subsection 7(1) is taken not be assigned to a Division of the Court. The item replaces the word ‘either’ with ‘any’ to reflect that there will be three Divisions of the Federal Court, rather than two Divisions.

Item 189 - Subsection 7(2) (note)

391.           Item 189 repeals the existing note to subsection 7(2) and replaces it with a new note. The existing note provides that a Judge (including the Chief Justice) who is not assigned to either Division of the Federal Court may exercise the powers of the Federal Court in either Division. The new note is not substantively different from the existing note, except that it reflects that there are now three Divisions of the Federal Court rather than two Divisions. The new note provides that a Judge (including the Chief Justice) who is not assigned to a Division of the Federal Court may exercise the powers of the Federal Court in any Division.

Item 190 - Section 13 (heading)

392.           Item 190 repeals the heading to section 13 and replaces it with a new heading that refers to the Family Law Appeal Division. The new heading will now read ‘General, Fair Work and Family Law Appeal Divisions of the Court’.

Item 191 - Subsection 13(1)

393.           Item 191 repeals subsection 13(1) of and replaces it with a new subsection. Subsection 13(1) currently provides that for the purpose of the organisation and conduct of the business of the Federal Court, the Federal Court comprises the General Division and the Fair Work Division. New subsection 13(1) is similar to existing paragraph 13(1), except that it also provides for the Family Law Appeal Division. The existing General Division and Fair Work Division are specified under new paragraphs 13(1)(a) and (b), respectively. The Family Law Appeal Division is specified as a new Division of the Federal Court under new paragraph 13(1)(c).

Item 192 - After subsection 13(3)

394.           Item 192 adds new subsection 13(3A) to provide for the exercise of the jurisdiction of the Federal Court in the Family Law Appeal Division. In particular, new subsection 13(3A) provides that the Family Law Appeal Division can exercise the jurisdiction that is required by Division 2 of Part III of the Act to be exercised in the Family Law Appeal Division, and jurisdiction incidental to such jurisdiction. This will mean the Fair Work Division will continue to hear and determine matters that is required to be exercised in that Division (for example, in accordance with section 562 of the Fair Work Act 2009 ). The General Division will hear and determine matters where jurisdiction is not required to be exercised in the Fair Work Division or the Family Law Appeal Division.

395.           In circumstances where a proceeding gives rise to issues which are required to be heard in multiple Divisions (for example, the General Division and the Family Law Appeal Division), existing subsection 13(5) will operate to allow the Chief Justice to give a direction about the allocation of the matter to a particular Division.

Item 193 - Subsection13(4)

396.           Item 193 amends subsection 13(4) by repealing the existing subsection and inserting a new subsection. Subsection 13(4) currently provides that the jurisdiction of the Federal Court is to be exercised by the General Division in circumstances where the jurisdiction of the Federal Court is not required to be exercised by the Fair Work Division. The item amends the current operation of the subsection so that the General Division can exercise jurisdiction that is not required to be exercised in either the Fair Work Division or the Family Law Appeal Division.

Item 194 - Subsection 13(5)

397.           Item 194 amends subsection 13(5), which allows the Chief Justice to give a direction about the allocation of the matter to a particular Division in circumstances where the Court’s jurisdiction in relation to particular proceedings or proceedings of a particular kind is required to be exercised by both Divisions. The item repeals the existing subsection and replaces it with a new subsection 13(5) providing that the Chief Justice may give a direction about the allocation of a matter to a particular Division in circumstances where the Court’s jurisdiction in relation to a particular proceedings or proceedings of a particular kind is required to be exercised in more than one Division. This amendment appropriately reflects the introduction of the Family Law Appeal Division of the Court.

Item 195 - After section 13

398.           Item 195 introduces new section 13A. Section 13A provides that the Chief Justice may authorise a Judge to manage a class or classes of proceedings.  The purpose of this clause is to enable more specialist management of particular classes of proceedings.

399.           Subsection 13A(1) provides that the Chief Justice may, by written instrument, authorise a Judge to manage a class or classes of proceedings.  The class or classes of proceedings may be specified in the instrument of authorisation or by the Rules of Court. Such instrument would not be a legislative instrument by virtue of the operation of paragraph (c) of item 8 in the table in section 6 of the Legislation (Exemptions and Other Matters) Regulations 2015 .

400.           Subsection 13A(2) provides that in managing a class or classes of proceedings, a Judge is subject to any direction from the Chief Justice.

401.           Subsection 13A(3) provides that a Judge may be authorised even though the Judge is not assigned to a Division.

402.           Subsection 13A(4) provides that the authorisation of a Judge does not affect the rank, title, status and precedence that the Judge would otherwise have.

403.           Subsection 13A(5) provides that, if the Chief Justice gives a direction under subsection 13A(2) in writing, that direction is not a legislative instrument.  This subsection is to assist readers as the direction would not be a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 .

Item 196 - Subsection 15(1AAA)

404.           Item 196 amends subsection 15(1AAA), which relates to the dealing of a complaint about a Judge. The item clarifies that the subsection applies to a complaint about ‘another Judge of the Court’. The clarification is necessary to ensure that the subsection does not apply in relation to a Judge of a court other than the Federal Court.

Item 197 - Subsection 15(1A) (heading)

405.           Item 197 repeals the heading to subsection 15(1A) and replaces it with a new heading that refers to the Family Law Appeal Division. The new heading will now read ‘Exercise of powers of General, Fair Work and Family Law Appeal Divisions of the Court’.

Item 198 - Subsection 15(1B)

406.           Item 198 amends subsection 15(1B) by substituting the reference to ‘the other Division’ with ‘another Division’. Subsection 15(1B) currently provides that the Chief Justice may arrange for a Judge who is assigned to a particular Division of the Court to exercise the powers of the other Division of the Court. The item amends the current operation of the subsection to account for the creation of the Family Law Appeal Division in the Federal Court.

Item 199 - Subsection 15(1C)

407.           Item 199 repeals subsection 15(1C) and replaces it with a new subsection. Existing subsection 15(1C) is an avoidance of doubt provision which provides that a Judge who is not assigned to either Division of the Federal Court may exercise, or participate in exercising, the powers of the Federal Court in either Division. New 15(1C) is not substantially different from the existing subsection, except that it contains the necessary language changes to extend the operation of the subsection so that it applies in relation to any Division of the Court, including the Family Law Appeal Division rather than ‘either Division’ (which currently only captures the General Division and Fair Work Division).

Item 200 - Sections 15A and 16

408.           Item 200 repeals section 15A and 16, and substitutes new section 16. Section 15A outlines that the Chief Justice of the Federal Court and the Chief Justice of Family Court can consult about the transfer of proceedings pending in the Federal Court to the Family Court. The removal of the section does not prevent the Chief Justice of the Federal Court consulting with the Chief Justice of the FCFC (Division 1) or the Chief Judge of the FCFC (Division 2) about the transfer of proceedings as this can occur regardless of the existence of the section.  Transfers from the Federal Court to the FCFC (Division 1) will now be able to made pursuant to section 32AB by virtue of the amendments made by items 243 to 247 of this Schedule.

409.           New section 16 provides that if the opinion of the Judges constituting the Full Court of the Federal Court is divided, the majority opinion will prevail. However, if Judges of the Full Court of Federal Court are equally divided in opinion in an appeal from the FCFC (Division 1) (or a Federal Court judgment of a single Judge, or from a Supreme Court of a State or Territory), that the judgment of the FCFC (Division 1) (or single Judge, or Supreme Court of a State or Territory) is affirmed. For equally divided opinions of the Full Court in respect of appeals from decisions of other courts, the opinion of the Chief Justice, or if the Chief Justice is not a member of the Full Court, the next most Senior Judge, is to prevail. These amendments appropriately continue the effect of paragraph 30(a) of the Family Law Act, which is repealed by item 38 of Schedule 1 of this Bill.

Item 201 - After paragraph 18A(1B)(e)

410.           Item 201 inserts two new paragraphs into subsection 18A(1B). Subsection 18A(1B) provides that the matters specified in the subsection are the corporate services of the Federal Court. In accordance with subsection 18(1) and (1A), the Chief Justice is responsible for managing the administrative affairs of the Federal Court except for corporate services. Under section 18Z of the Act, the Chief Executive Officer is responsible for providing the corporate services of the Federal Court. New paragraphs (ea) and (eb) provide that records management and administrative matters relating to judgments (to the extent that such matters do not involve the exercise of judicial power) are included in the corporate services of the Court. The Chief Executive Officer of the Federal Court already takes responsibility for these matters. These updates are therefore intended to clarify the delineation of matters as between administrative affairs and corporate services.

411.           Records management includes the development of record keeping and management policies and practices, management of Records Authorities agreed with the National Archives of Australia, management on behalf of the Courts and the National Native Title Tribunal of digital and physical case and administrative files. It also includes transferring digital and physical files required for retention to the National Archives of Australia, management of records contracts (for example with offsite storage providers) and support for information governance.

412.           Administrative matters relating to judgments, to the extent that such matters do not involve the exercise of judicial power, includes development of judgment templates, style guides, systems and applications, redaction of personal and other identifying information from judgments where appropriate or required at law or by order. It also includes electronic publication of judgments on court websites and intranets, the distribution of all judgments as appropriate to legal publishers, and provision of training in the use of templates and systems.

Item 202 - After paragraph 18A(1B)(h)

413.           Item 202 inserts new paragraph 18A(1B)(h). Subsection 18A(1B) provides that the matters specified in the subsection are the corporate services of the Federal Court. In accordance with subsection 18(1) and (1A), the Chief Justice is responsible for managing the administrative affairs of the Federal Court except for corporate services. Under section 18Z of the Act, the Chief Executive Officer is responsible for providing the corporate services of the Federal Court. New paragraph (h) provides that court security is included in the corporate services of the Court. The Chief Executive Officer of the Federal Courts already takes responsibility for this matter. The update is therefore intended to clarify the delineation of matters as between administrative affairs and corporate services.

414.           Court security includes the development of policies, procedures and practices for the security of the Courts, judges and other court personnel as well as for court premises. It also includes the development of policies, procedures and practices for emergency and threat management, management of the acquisition, maintenance and replacement of security equipment and apparatus (for example for monitoring appropriate areas of premises, screening of persons, bags and mail on entry, controlling and monitoring access to the premises and parts of premises as appropriate), management of security contracts (for example for guarding), compliance with all external regulatory and similar requirements regarding court security, and security training for judges and court personnel.

Item 203 - At the end of subsection 18D(1)

415.           Item 203 inserts a new note to subsection 18D(1). Subsection 18D(1) provides that the Chief Executive Officer has the power to do all things necessary or convenient to be done for the purpose of assisting the Chief Justice of the Court. Under the new reforms, the Chief Executive Officer of the Federal Court will also support the Chief Justice of the FCFC (Division 1) and the Chief Judge of the FCFC (Division 2). The new note outlines that the Chief Executive Officer has similar powers to those in subsection 18D(1) in relation to supporting the Chief Justice of the FCFC (Division 1) and the Chief Judge of the FCFC (Division 2).

Item 204 - At the end of subsection 18D(3)

416.           Item 204 inserts a new note to subsection 18D(3). Subsection 18D(3) provides that the Chief Justice may give the Chief Executive Officer directions regarding the exercise of his or her power under Part IIA of the Act. As outlined in item 203 above, the Chief Executive Officer of the Federal Court will also support the Chief Justice of the FCFC (Division 1) and the Chief Judge of the FCFC (Division 2). The new note outlines that the Chief Executive Officer may also be given similar directions to those in subsection 18D(3) by the Chief Justice of the FCFC (Division 1) and the Chief Judge of the FCFC (Division 2).

Item 205 - After paragraph 18N(1)(d)

417.           Item 205 inserts new paragraphs 18N(1)(da) and (db). The new paragraphs provide for there to be a Marshal of the Federal Court and such Deputy Marshals of the Federal Court as are necessary as officers of the Federal Court. The offices of Marshal and Deputy Marshal are new to the Federal Court, although they already exist for the Family Court and the Federal Circuit Court (and will continue as positions of the FCFC (Division 1) and FCFC (Division 2)). The creation of the offices in the Federal Court recognises that family law matters are often highly emotional and can involve potentially unsafe situations for families and children. The creation of the Marshal and Deputy Marshal offices will ensure the continued safety for families and children and other persons who attend the Federal Court.

Item 206 - Subsection 18N(4)

418.           Item 206 amends subsection 18N(4), which currently provides that the officers of the Federal Court (other than the Chief Executive Officer, the Deputy Sheriffs and the Marshals for the purposes of the Admiralty Act 1988 ) are to be persons engaged under the Public Service Act 1999. The item omits the words ‘and the Marshals’ and replaces them with ‘the Deputy Marshals of the Court and the Marshals for the purposes of the Admiralty Act 1988 . This amendment includes Deputy Marshals within the operation of the subsection. This approach is consistent with the approach proposed for Deputy Marshals of the FCFC (Division 1) and the FCFC (Division 2).

Item 207 - Subsection 18N(5)

419.           Item 207 amends subsection 18N(5), which currently provides that the Deputy Sheriffs and the Marshals for the purposes of the Admiralty Act 1988 may be persons engaged under the Public Service Act 1999 . The item omits the words ‘and the Marshals’ and replaces them with ‘the Deputy Marshals of the Court and the Marshals for the purposes of the Admiralty Act 1988 . This amendment includes Deputy Marshals within the operation of the subsection. This approach is consistent with the approach proposed for Deputy Marshals of the FCFC (Division 1) and the FCFC (Division 2).

Item 208 - Section 18P

420.           Item 208 repeals section 18P and replaces it with a new section. Existing section 18P outlines the responsibilities of the Sheriff of the Federal Court. New section 18P is similar to existing 18P, except that the responsibilities of the Sheriff under existing subsection 18P(2) are removed and placed within the responsibilities of the new Marshal of the Federal Court. This is consistent with the approach in the FCFC (Division 2).

421.           New subsection 18P(1) provides that the Sheriff of the Federal Court is responsible for the service and execution of all process of the Federal Court directed to the Sheriff. This provision is the same as existing subsection 18P(1).

422.           New subsection 18P(2) provides that the Sheriff of the Federal Court is also responsible for dealing, on behalf of the Court, with police in relation to the services and execution of process of the Federal Court directed to members of any of those police forces.

423.           Subsection 18P(3) provides that the Sheriff of the Federal Court is also responsible for matters under Division 1A of Part III of the Act directed to the Sheriff. This provision is the same as existing subsection 18P(2A).

18PA - Deputy Sheriffs

424.           This item inserts new section 18PA. New section 18PA provides that a Deputy Sheriff of the Federal Court may, subject to any directions of the Sheriff of the Federal Court, exercise or perform any of the powers or functions of the Sheriff. New section 18PA is substantively the same as existing 18P(3) of the Act.

18PB - Authorised persons to assist the Sheriff or Deputy Sheriff

425.           This item inserts new section 18PB. New subsection 18PB(1) provides that the Sheriff of the Federal Court may authorise persons to assist the Sheriff in exercising powers or performing functions as the Sheriff. New subsection 18PB(2) provides that a Deputy Sheriff of the Federal Court may authorise persons to assist the Sheriff in exercising powers or performing functions as the Deputy Sheriff. New section 18PB is substantively the same as existing 18P(4) of the Act.

18PC - Marshal

426.           This item inserts new section 18PC. New section 18PC establishes the position of Marshal of the Federal Court. As outlined in item 205, the Marshal position is new to the Federal Court, although it already exists for the Family Court and the Federal Circuit Court (and will continue as a position of the FCFC (Division 1) and FCFC (Division 2), respectively). The inclusion of the position in the Federal Court recognises that family law matters are often highly emotional and can involve potentially unsafe situations for families and children. The position is designed to ensure the continued safety for families and children and other persons who attend the Federal Court, following the introduction of the Family Law Appeal Division of the Federal Court.

427.           Subsection 18PC(1) provides that the Marshal of the Federal Court is responsible for the security of the Federal Court and the personal security of the Judges and officers and staff of the Federal Court. Subsection 18PC(2) provides that the Marshal of the Federal Court is also responsible for taking, receiving and detaining all persons committed to the Marshal’s custody by the Federal Court and discharging such persons when so directed by the Federal Court or otherwise required by law.

18PD - Deputy Marshals

428.           This item inserts new section 18PD. For the same reasons outlined in the item above, new section 18PD establishes the position of Deputy Marshal of the Federal Court. New section 18PD provides that a Deputy Marshall of the Federal Court may, subject to any discretions of the Marshal of the Federal Court, exercise or perform any of the powers or functions of the Marshal.

18PE - Authorised persons to assist the Marshal or Deputy Marshals

429.           This item inserts new section 18PE. Subsection 18PE(1) provides that the Marshal of the Federal Court may authorise persons to assist the Marshal in exercising powers or performing functions as the Marshal. Subsection 18PE(2) provides that a Deputy Marshal of the Federal Court may authorise persons to assist the Deputy Marshal in exercising powers or performing functions as the Deputy Marshal. Allowing authorised persons to assist the Marshal and Deputy Marshal is consistent with the approach already taken by the Act in relation to Sheriffs and Deputy Sheriffs. Further, it is consistent with the approach adopted by the Family Court and Federal Circuit Court in relation to the existing Marshal and Deputy Marshal positions within each of those courts.

Item 209 - Paragraphs 18Z(1)(b) and (c)

430.           Item 209 repeals paragraphs 18Z(1)(b) and (c) and replaces them with new paragraphs. Paragraphs 18Z(1)(b) and (c) currently provide that the Chief Executive Officer provides corporate services to the Family Court and Federal Circuit Court, respectively. The item replaces these paragraphs with new ones which provide that the Chief Executive Officer provides corporate services to the FCFC (Division 1) and the FCFC (Division 2), respectively. The new paragraphs ensure the continuation of the shared corporate services across the federal courts (excluding the High Court) that was introduced by the Courts Administration Legislation Amendment Act 2016 .

Item 210 - Paragraphs 18Z(3)(b) to (e)

431.           Item 210 repeals paragraphs 18Z(3)(b) to (e) and replaces them with new paragraphs 18(3)(b) and (c). Subsection 18Z(3) provides that the Chief Executive Officer must consult certain persons in the performance of functions and exercise of powers under section 18Z. Paragraphs (b) to (e) provide that the Chief Executive Officer must consult the Chief Justice of the Family Court, Chief Judge of the Federal Circuit Court, the Chief Executive Officer of the Family Court and the Chief Executive Officer of the Federal Circuit Court. Consultation with the Family Court and Federal Circuit Court Chief Executive Officers is no longer required as those positions are being removed under the reforms. The new paragraphs provide that the Chief Executive Officer must consult with the Chief Justice of FCFC (Division 1) and the Chief Judge of FCFC (Division 2) the performance of functions and exercise of powers under section 18Z.

Item 211 - Subsection 18Z(5)

432.           Item 211 repeals subsection 18Z(5) of the Act and replaces it with a new subsection. Subsection 18Z(5) currently provides that the Chief Executive Officer must not make a decision that imposes expenditure obligations on the Courts in relation to providing corporate services unless the relevant Chief Justice or Chief Judge is consulted and consents to the decision, or the Attorney-General consents after consulting the relevant Chief Justice or Chief Judge. The provision ensures that the Chief Executive Officer, in managing corporate services, cannot impose spending obligations on the Courts without input from the relevant head of jurisdiction.

433.           The new subsection departs slightly from the approach introduced in the Courts Administration Legislation Amendment Act 2016 . In particular, while consultation is still required before the Chief Executive Officer can impose an expenditure obligation on the courts in relation to providing corporate services, the consent of the relevant Chief Justice or Chief Judge is not required. Further, the Attorney-General will no longer have a role to consent to the imposition of an expenditure obligation.

434.           At a practical level, the Chief Executive Officer works closely with the Chief Justices and Chief Judge in imposing expenditure obligations in relation to corporate services on the courts. The requirement that the Chief Executive Officer obtain the consent of the relevant Chief Justice or Chief Judge adds an extra layer of administration that is not required. Additionally, the courts themselves should be responsible for their administration, and it is not necessary to provide that the Attorney-General can consent to an expenditure obligation on the courts. The new subsection also provides greater opportunity for the Chief Justice of the Federal Court to be involved in expenditure decisions across the courts. The new subsection provides that the Chief Executive Officer must not make a decision that imposes expenditure obligations on the courts, unless:

·                      In relation to the Federal Court - the Chief Justice of the Federal Court is consulted,

·                      In relation to FCFC (Division 1) - the Chief Justice of the Federal Court and Chief Justice of Division 1 are consulted, and

·                      In relation to FCFC (Division 2) - the Chief Justice of the Federal Court and Chief Judge of Division 2 are consulted.

Item 212- Subparagraphs 18ZB(a)(iv) to (ix)

435.           Item 212 repeals subparagraphs 18ZB(a)(iv) to (ix) and replaces them with new paragraphs. Paragraph 18ZB(a) provides that, for the purposes of the finance law (which has the same meaning as ‘finance law’ in section 8 of the Public Governance, Performance and Accountability Act 2013 ), the group of persons specified in subparagraphs (a)(i) to (xiii) form the listed entity known as the ‘Federal Court of Australia’. Under the reforms introduced in Courts Administration Legislation Amendment Act 2016 , the administrative entities for the Family Court and the Federal Circuit Court were merged into one administrative entity, the Federal Court, for the purposes of the finance law.

436.           Subparagraphs ZB(a)(iv) to (ix) currently refer either to existing positions within the Family Court or Federal Circuit Court or to the Chief Executive Officer positions within the Family Court and Federal Circuit Court. The item repeals these subparagraphs and replaces them with new subparagraphs (iv) to (vii). The new subparagraphs refer to positions within the FCFC (Division 1) and the FCFC (Division 2), rather than the Family Court and Federal Circuit Court, and do not include the Chief Executive Officer positions of the Family Court and Federal Circuit Court as these positions will no longer exist. The amendments reflect the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2).

Item 213 - Subparagraphs 18ZB(e)(ii) and (iii)

437.           Item 213 repeals subparagraphs 18ZB(e)(ii) and (iii) and replaces them with a new paragraph. Paragraph (e) currently provides that the purposes of the listed entity (the ‘Federal Court of Australia’) include the functions of the Chief Executive Officers of the Federal Court, Family Court and Federal Circuit Court. The item repeals the functions relating to the Chief Executive Officers of the Family Court and Federal Circuit Court as these positions will no longer exist. New subparagraph 18ZB(e)(ii) includes the functions that the Chief Executive Officer will be responsible for in relation to the FCFC (Division 1) and the FCFC (Division 2).

Item 214 - Section 18ZC

438.           Item 214 repeals section 18ZC and replaces it with a new section. Existing section 18ZC relates to the application of section 110 of the Public Governance, Performance and Accountability Act 2013 . The section refers to the Family Court, Federal Circuit Court and the respective Chief Executive Officers for each court. New section 18ZC is substantially the same as the existing section, except that it is updated to reflect that the Family Court will be continued as the FCFC (Division 1), the Federal Circuit Court will be continued as the FCFC (Division 2), and the positions of Chief Executive Officer of the Family Court and the Federal Circuit Court will no longer exist.

Item 215 - Subparagraphs 18ZD(1)(b)(ii) to (iv)

439.           Item 215 repeals subparagraphs 18ZD(1)(b)(ii) to (iv) and replaces them with new paragraphs. Subsection (1) provides the criteria for the application of the section. 18ZB(1)(b) provides that the section applies (subject also to paragraphs (a) and (c)) if there is an outcome for the listed entity that relates to the administrative affairs of the Court, the Family Court or the Federal Circuit Court or the corporate services of the Federal Court, the Family Court, or the Federal Circuit Court. The item replaces existing subparagraphs (b)(ii) to (iv) with paragraphs which refer to the administrative affairs of the FCFC (Division 1), the FCFC (Division 2), and the corporate services of the Federal Court, the FCFC (Division 1) and the FCFC (Division 2). The substantive operation of the existing paragraphs is not changed by the new paragraphs, only references to the names of the courts.

Item 216 - Subsections 18ZD(2) and (3)

440.           Item 216 repeals subsections 18ZD(2) and (3) and replaces them with new a new subsection. Subsection (2) currently provides that before spending a part of the outcome amount for another outcome the Chief Executive Officer must first both consult the relevant Chief Justice or Chief Judge and obtain their consent, or obtain the consent of the Attorney-General. Subsection (3) currently provides that before the Attorney-General can give consent under subsection (2) the Attorney-General must consult with relevant Chief Justice or Chief Judge.

441.           Similar to the reasoning provided for the changes at item 211, the requirement in subsection (2) that the Chief Executive Officer obtain the consent of the relevant Chief Justice or Chief Judge adds an extra layer of administration that is not required. At a practical level, the Chief Executive Officer works closely with the Chief Justices and Chief Judge in spending outcomes amounts. Additionally, the courts themselves should be responsible for their administration, and it is not necessary to provide that the Attorney-General can consent to an expenditure obligation on the courts.

442.           As such, new subsection (2) provides that before spending a part of an outcome amount for another outcome, if the outcome amount relates to the administrative affairs of the Federal Court, the FCFC (Division 1) or the FCFC (Division 2) the Chief Executive Officer must consult with relevant Chief Justice or Chief Judge. The new subsection also provides greater opportunity for the Chief Justice of the Federal Court to be involved in expenditure decisions across the courts. The table in the new subsection provides that before spending part of the outcome amount for another outcome the Chief Executive Officer must:

·                      in relation to the Federal Court - consult the Chief Justice of the Federal Court,

·                      in relation to Division 1 - consult the Chief Justice of the Federal Court and Chief Justice of Division 1, and

·                      in relation to Division 2 - consult Chief Justice of the Federal Court and Chief Judge of Division 2.

Item 217- Subparagraphs 18ZE(2)(b)(ii) and (iii)

443.           Item 217 repeals subparagraphs 18ZE(2)(b)(ii) and (iii) and replaces them with a new subparagraph. Subsection (2) currently specifies the persons who constitute a Statutory Agency for the purposes of the Public Service Act 1999 . Subparagraphs (2)(b)(ii) and (iii) specify that the persons listed in section 38N of the Family Law Act and section 101, subsection 106(1), subsection 107(1), subsection 109(1), subsection 110(1), section 111A and section 112 of the Federal Circuit Court Act are amongst the persons who constitute the Statutory Agency. The item repeals these subparagraphs and replaces them with new subparagraph (iii), which refers to the correct provisions of the new Federal Circuit and Family Court of Australia Act 2018 . The amendments do no change the intent of subsection 18ZE(2).

Item 218 - Sections 18ZF and 18ZG

444.           Item 218 repeals existing sections 18ZF and 18ZG and replaces them with a new section. Existing subsection 18ZF provides that the Chief Executive Officer must make the services of APS employees who are officers of the Family Court, or staff of the Registries of the Family Court, available for the purposes of assisting the Family Court Chief Executive Officer in the performance of his or her functions. In performing services, the persons made available must do so in accordance with the directions of the Chief Justice of the Family Court and the Family Court Chief Executive Officer. Subsection 18ZF also provides for similar arrangements in relation to the Federal Circuit Court.

445.           New subsection 18ZF will not substantively depart from existing subsection 18ZF, except that APS employees who are officers of the FCFC (Division 1), or staff of the Registries of the FCFC (Division 1), must be made available to Chief Executive Officer of the Federal Court in the performance of the Chief Executive Officer’s functions in relation to the FCFC (Division 1). New subsection 18ZF will provide similar arrangement in relation to the FCFC (Division 2).

446.           Item 18ZG is no longer required as it relates to delegations concerning the Family Court Chief Executive Officer and the Federal Circuit Court Chief Executive Officer, positions which will no longer exist under the new court structure.

Item 219 - Paragraphs 18ZH(1)(b) and (c)

447.           Item 219 repeals existing paragraphs 18ZH(1)(b) and (c) and replaces them with new paragraphs. In accordance with subsection 18ZH(1), the Chief Executive Officer has the power to appoint specified officers. Subsections (b) and (c) provide that the Chief Executive Officer has the power to appoint certain officers of the Family Court and the Federal Circuit Court. Similar to the existing subparagraphs, new subparagraphs (b) and (c) will allow the Chief Executive Officer to appoint specified officers of the FCFC (Division 1) and the FCFC (Division 2).

Item 220 - Subsections 18ZH(2) and (3)

448.           Item 220 repeals subsections 18ZH(2) and (3) as they are no longer required. Under the subsections, the Chief Executive Officer is given the power to delegate his or her appointment powers to the Family Court Chief Executive Officer and the Federal Circuit Court Chief Executive Officer. As these positions will no longer exist the provisions are no longer required.

449.           The item also inserts new subsection (2), which provides that the appointment of a person to more than one office, or an office or offices of more than one court, mentioned in subsection 18ZH(1) may be made in a single instrument. This insertion of this provision seeks to improve the practicality of appointments by allowing more than one to be made in a single instrument, reducing the administrative burden.

Item 221 - Paragraphs 18ZI(1)(b) and (c)

450.            Item 221 repeals paragraphs 18ZI(1)(b) and (c) and replaces them with new paragraphs. Subsection 18ZI(1) currently provides that the Chief Executive Officer may engage persons having suitable qualifications and experience as consultants to, or to perform services for, the Federal Court, the Family Court, the Federal Circuit Court and the National Native Title Tribunal. New paragraphs (b) and (c) will correctly refer to the FCFC (Division 1) and the FCFC (Division 2), rather than the Family Court and Federal Circuit Court, respectively.

Item 222 - Subsections 18ZI(4) and (5)

451.           Item 222 repeals subsections 18ZI(4) and (5), which relate to the delegation of powers to the Family Court Chief Executive Officer and the Federal Circuit Court Chief Executive Officer. As these positions will no longer exist the provisions are no longer required.

Item 223 - Section 18ZJ

452.           Item 223 repeals subsections 18ZJ, which relates to the delegation of powers to the Family Court Chief Executive Officer and the Federal Circuit Court Chief Executive Officer. As these positions will no longer exist, section 18ZJ is no longer required.

Item 224 - Section 18ZK

453.           Item 224 repeals existing section 18ZK and replaces it with a new section. Section 18ZK provides that a person may be an officer of one or more of the Federal Court, Family Court, or Federal Circuit Court. New subsection 18ZK(1) is similar to the existing section, except that it is updated to refer to the FCFC (Division 1) and the FCFC (Division 2). Additionally, in a similar manner to existing subsection 18ZK(2), new subsection 18ZK(2) will provide that subsection (1) has effect despite anything in the Federal Court Act or the Federal Circuit and Family Court of Australia Act 2018 .

Item 225 - Before subsection 24(1)

454.           Item 225 inserts a subheading before subsection 24(1). The subheading provides ‘Appellate jurisdiction - general matters’, and is necessary to distinguish the Federal Court’s appellate jurisdiction for general matters in subsection 24(1) with its new appellate jurisdiction for family law matters (refer to item 227).

Item 226 - Paragraphs 24(1)(d) and (e)

455.           Item 226 amends paragraphs 24(1)(d) and (e) to replace references to the Federal Circuit Court with references to the FCFC (Division 2). Subsections (d) and (e) relate to the Federal Court’s jurisdiction to hear appeals from judgments of the Federal Circuit Court. The item updates the reference to the Federal Circuit Court to be the FCFC (Division 2), but does not change the substantive operation of the paragraphs.

Item 227 - Subsections 24(1AA) to (1E)

456.           Item 227 repeals existing subsections 24(1AA) to (1E) and replaces them with new subsections (2) to (7). In particular, new subsection (2) provides for the Federal Court’s appellate jurisdiction in relation to family law and child support proceedings. New paragraph (2)(a) provides for the jurisdiction of the Court for appeals from the FCFC (Division 1) or the FCFC (Division 2) in relation to matters arising under:

·                      the Family Law Act

·                      the Child Support (Assessment) Act 1989

·                      the Child Support (Registration and Collection) Act 1988 (other than section 72Q of that Act)

·                      regulations made under an Act referred to in the preceding three dot points

·                      any other law in relation to a matter in a family law or child support proceeding.

457.           New paragraph (2)(b) provides that the Federal Court has jurisdiction for appeals from a judgment of a Family Court of a State or a Supreme Court of a State or Territory constituted by a single Judge where that court is exercising original or appellate jurisdiction under the Family Law Act, the Child Support (Assessment) Act 1989 , or the Child Support (Registration and Collection) Act 1988 . Paragraph (2)(c) also provides that the Federal Court has jurisdiction for a judgment or decision of a Judge exercising original or appellate jurisdiction rejecting an application that the Judge disqualify himself or herself from further hearing the matter.

458.           The appellate jurisdiction of the Federal Court for family law and child support matters will be largely the same as that currently invested in the Family Court. However, the Federal Court will not be given jurisdiction to hear appeals from state and territory courts of summary jurisdiction, which will be retained by the FCFC (Division 1) and given to the FCFC (Division 2) (see item 72 of Schedule 1 of this Bill)). The conferral of appellate jurisdiction for family law and child support matters is central to the structural reform of the courts. By investing the Federal Court with appellate jurisdiction, and removing most of the appellate jurisdiction of the Family Court, judicial resources of the FCFC (Division 1) will be able to be redirected to hear more first instance family law matters. It is appropriate for appellate jurisdiction to be conferred on the Federal Court as it is a superior court with experienced Judges. Further, the inclusion of the list provisions and a specialised Division - the Family Law Appeal Division - will allow Judges with more experience in dealing with family law matters to be allocated specific family law appeal matters.

459.           New subsection (3) provides that the Federal Court’s appellate jurisdiction in relation to family law and child support matters is to be exercised by the Family Law Appeal Division.

460.           New subsections (4) to (7) largely reflect existing subsections (1AA) to (1E).

Item 228 - After section 24

461.           Item 228 inserts new section 24A. New subsection 24A(1) provides that for leave of the Federal Court is required to appeal to the Family Law Appeal Division in some family law or child support matters. Paragraph (1)(a) provides that leave to appeal is required for particular judgments of a court (other than a court of summary jurisdiction) exercising jurisdiction under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 (other than section 72Q of that Act) . The Federal Circuit and Family Court of Australia Act 2018 vests jurisdiction in both the FCFC (Division 1) and the FCFC (Division 2) to hear and determine appeals of a judgment of a court of summary jurisdiction of a State or Territory exercising jurisdiction under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 . Unless granted leave by the Family Law Appeal Division, those particular appeals should lie either to the FCFC (Division 1) or the FCFC (Division 2) in the first instance.

462.           Paragraph (1)(b) provides that prescribed judgments of the FCFC, a Family Court of a State, or a Supreme Court of a State or Territory constituted by a single Judge requires leave of the Family Law Appeal Division to appeal to the Family Law Appeal Division. Item 57 of Schedule 3 of this Bill will provide what constitutes a ‘prescribed judgment’ for the purposes of paragraph 24A(1)(b) of the Federal Court Act.

463.           Subsection (2) provides that, for the purposes of paragraph (1)(a), a Family Court of a State is not a court of summary jurisdiction.

464.           Subsection (3) provides that the Rules of Court may make provisions for enabling application for leave to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing. This provision seeks to allow the Federal Court to expedite the process for determining applications for leave to appeal subject to the conditions the Federal Court thinks are necessary. This provision will allow, where appropriate, applications for leave to be dealt with quickly and fairly without the need for an oral hearing.

Item 229 - Subsection 25(1AA)

465.           Item 229 amends subsection 25(1AA) by omitting the reference to ‘Federal Circuit Court’ and substituting ‘Federal Circuit and Family Court of Australia (Division 2)’. Subsection 25(1AA) currently provides that the appellate jurisdiction of the Federal Court in relation to an appeal from the Federal Circuit Court is to be exercised by a single Judge or by a Full Court if a Judge considers that it is appropriate for the appellate jurisdiction of the Federal Court to be exercised by a Full Court. This amendment will apply in respect of appeals to the Family Law Appeal Division, the General Division and the Fair Work Division of the Federal Court from both of the family law and general federal law jurisdictions of the FCFC (Division 2). As such, the amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and the conferral of family law appellate jurisdiction upon the Family Law Appeal Division of the Federal Court.

Item 230 - After paragraph 25(2)(b)

466.           Item 230 inserts new paragraph (ba) after subsection 25(2)(b). New paragraph (ba) provides that an application for an extension of time within which to file an application for leave to appeal to the Family Law Appeal Division of the Federal Court must be heard and determined by a single Judge unless the Judge directs the application to be heard and determined by a Full Court or the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considered it is appropriate to hear and determine the application. The inclusion of the paragraph is consistent with the approach adopted in existing paragraph (2)(a) in relation to applications for leave or special leave to appeal to the Federal Court, and ensures that applications for leave to the Family Law Appeal Division are only heard by a Full Court when necessary.

Item 231 - Paragraph 25(2)(d)

467.           Item 231 amends paragraph 25(2)(d) by omitting the current reference to ‘a Full Court’ and substituting ‘a Full Court or of a single Judge of the Family Law Appeal Division of the Court; or’. Paragraph 25(2)(d) currently provides that applications to stay an order of a Full Court must be heard and determined by a single Judge, unless the Judge directs the application to be heard and determined by a Full Court or the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considered it is appropriate to hear and determine the application. The amendment to paragraph (d) will provide that the provision not only applies to the Full Court, but also to a single Judge of the Family Law Appeal Division. This amendment is appropriate to ensure that applications to stay an order of the Family Law Appeal Division are only heard by a Full Court when necessary.

Item 232 - After paragraph 25(2)(d)

468.           Item 232 inserts new paragraph (da) after existing paragraph 25(2)(d). New paragraph (da) will operate so that an application for security for costs in relation to an appeal to the Family Law Appeal Division must be heard and determined by a single Judge unless the Judge directs the application to be heard and determined by a Full Court or the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considered it is appropriate to hear and determine the application. This is appropriate so as to ensure that applications for security for costs in relation to an appeal for the Family Law Appeal Division are only heard by a Full Court when necessary.

Item 233 - At the end of section 25

469.           Item 233 inserts new subsection 25(7). New subsection (7) provides that no appeal lies under section 25 from an, order or direction of a kind mentioned in paragraph (2B)(b) or (c) given by the Court while exercising its jurisdiction in the Family Law Appeal Division . This subsection does not affect rights of appeal currently available under the Family Law Act, but ensures the continuing efficiency of the Federal Court by ensuring that the Family Law Appeal Division is not burdened with appeals in relation to matters it has already determined.

Item 234 - After section 25

470.           Item 234 inserts new section 25A. New subsection 25A(1) provides that an appeal under subsection 24(2) may be dealt with by the Court in family law or child support proceedings without an oral hearing if the parties to the appeal consent to the appeal being dealt with in that way. The note to new subsection 25A(1) clarifies for the reader that subsection 24(3) of the Federal Court Act requires that the appellate jurisdiction of the Court in respect of family law or child support proceedings (item 227 of Schedule 1 of this Bill refers) must be exercised in the Family Law Appeal Division. This provision seeks to facilitate the just and efficient resolution of family law and child support disputes by avoiding oral hearings when appropriate. The provision is similar to existing section 94AAB of the Family Law Act.

471.           Subsection (2) provides that subsection (1) does not apply if the Family Law Appeal Division orders otherwise. This is to ensure that even when parties consent to an appeal being dealt with without an oral hearing, the Federal Court can determine that an oral hearing is still required. The Federal Court may determine as such if, for example, it believes that a disadvantaged party should be heard at an oral hearing despite providing consent.

472.           Subsection (3) provides that a consent given for the Family Law Appeal Division to deal with the appeal without an oral hearing may only be withdrawn with the leave of the Family Law Appeal Division.

Item 235 - Subsection 26(2)

473.           Item 235 repeals existing subsection 26(2) and replaces it with a new subsection. Section 26 relates to cases stated and questions reserved. New subsection 26(2) builds on existing subsection (2) to account for the introduction of the Family Law Appeal Division. In particular it provides that, subject to any other Act, when the Court’s jurisdiction is being exercised by the Family Law Appeal Division, if the court stating the case or reserving the question is not the FCFC (Division 2), the jurisdiction must be exercised by a Full Court. The effect of this provision is to make clear that a case stated or a question reserved from the FCFC (Division 1), the Family Court of Western Australia , or from a Supreme Court of a State or Territory in a family law or child support proceeding , is to be heard by a Full Court of the Federal Court.

474.           New subsection 26(2) further provides that when the Court’s jurisdiction is being exercised by the Family Law Appeal Division and the court stating the case or reserving the question is  the FCFC (Division 2), subparagraph 26(2)(a)(ii) requires that a single Judge is to exercise jurisdiction under subsection (1), except where a Judge considers that it is appropriate for the jurisdiction of the Federal Court in relation to the matter to be exercised by a Full Court (in which case a Full Court would exercise jurisdiction). Paragraph 26(2)(b) will apply to exercise of the Court’s jurisdiction other than by the Family Law Appeal Division and maintain the existing arrangements for how the Federal Court deals with cases stated and questions reserved in non-family law matters.

Item 236 - After paragraph 27(c)

475.           Item 236 inserts new paragraph (ca) after paragraph 27(c). New paragraph (ca) provides that in an appeal the Federal Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has the power to draw inferences of fact and, in its direction, to receive further evidence, which evidence may be taken, in the case of an appeal being heard in the Family Law Appeal Division, as provided for in Division 2 of Part XI of the Family Law Act.

Item 237 - After subsection 28(1)

476.           Item 237 inserts new subsection (1A) after subsection 28(1) of the Act. New subsection 28(1A) provides that if, in dismissing an appeal under subsection 24(2), the Court is of the opinion that the appeal does not raise any question of general principle, it may give reasons for its decision in short form. The note to new subsection 28(1A) clarifies for the reader that subsection 24(3) of the Federal Court Act requires that the appellate jurisdiction of the Court in respect of family law or child support proceedings (Item 227 of Schedule 1 of this Bill refers) must be exercised in the Family Law Appeal Division. This provision will continue the efficiency of the Federal Court as Judges will not be required to draft long reasons where the basis for the decision is relatively straightforward.

Item 238 - Paragraph 29(1)(a)

477.           Item 238 amends subsection 29(1)(a) by replacing the reference to the ‘Federal Circuit Court’ with the ‘Federal Circuit and Family Court of Australia (Division 2)’. This will mean that the Federal Court has the power to grant a stay of a decision of the FCFC (Division 2) where such decision is the subject of an appeal to the Federal Court, but that the FCFC (Division 2) does not have the power to grant a stay in the circumstances. Replacing the name will also mean that the Federal Court will have the power to stay proceedings in relation the family law matters. It is appropriate that a similar power in not provided for in relation to the FCFC (Division 1) as it is a superior court.

Item 239 - At the end of Division 2 of Part III

478.           Item 239 inserts new section 30AAA. New subsection 30AAA(1) deals with application of Division 2 of Part III of the Act in relation to the making, variation or revocation of a court security order under Part 4 of the Court Security Act 2013 by a member of the FCFC or the Family Court of Western Australia. Subsection 30A(2) provides that Division 2 of Part III applies as if the making, variation or revocation were a decree of the member’s court in the exercise of original jurisdiction under the Family Law Act. The provision is similar to existing section 94AB of the Family Law Act, which is being repealed (refer to item 114).

479.           The item also inserts new section 30AAB. New section 30AAB provides that, despite the provisions of Part III, Division 2 of the Federal Court Act, the Federal Court only has appellate jurisdiction in relation to a matter arising under regulations made for the purposes of section 111C of the Family Law Act, as provided by those regulations (paragraph 30AAB(a)) and that the exercise of that jurisdiction is as provided by those regulations (paragraph 30AAB(b)).

480.           New section 30AAB is intended to have the same effect as current section 96AA in that jurisdiction and procedures in relation to matters arising under regulations made for the purpose of section 111C of the Family Law Act are governed by the regulation rather than by Part III, Division 2 of the Federal Court Act.

Item 240 - Section 32AA (heading)

481.           Item 240 amends the heading to section 32AA to replace the reference to the ‘Federal Circuit Court’ with the ‘Federal Circuit and Family Court of Australia (Division 2)’. The heading now reads ‘Proceedings not to be instituted in the Court if an associated matter is before the Federal Circuit and Family Court (Division 2)’.

Item 241 - Paragraphs 32AA(1)(a) and (b)

482.           Item 241 amends paragraph 32AA(1)(a) and (b) to replace references to the ‘Federal Circuit Court’ with the ‘Federal Circuit and Family Court of Australia (Division 2)’. Subsection 32AA(1) currently provides that proceedings must not be instituted in the Federal Court in respect of a matter if the Federal Circuit Court has jurisdiction in that matter and proceedings in respect of an associated matter are pending in the Federal Circuit Court. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of the subparagraphs.

Item 242 - Paragraph 32AA(2)(b)

483.           Item 242 amends paragraph 32AA(2)(b) to replace the reference to the ‘Federal Circuit Court’ with the ‘Federal Circuit and Family Court of Australia (Division 2)’. Subsection 32AA(2)(b) provides that if proceedings are instituted in the Federal Court in contravention of subsection 32AA(1) and the proceedings are subsequently transferred to the Federal Circuit Court the proceedings are taken to be as valid as they would have been if subsection (1) had not been enacted. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of the subparagraph.

Item 243 - Section 32AB (heading)

484.           Item 243 amends the heading to section 32AB to replace the reference to the ‘Federal Circuit Court’ with the ‘Federal Circuit and Family Court of Australia’. The heading now reads ‘Discretionary transfer of civil proceedings to the Federal Circuit and Family Court of Australia’.

Item 244 - Subsection 32AB(1)

485.           Item 244 amends subsection 32AB(1). Section 32AB currently provides the power for the Federal Court to transfer a matter pending in the Federal Court, by order, to the Federal Circuit Court on the application of a party to the proceedings or on its own motion. The amendments provide that the Court cannot transfer a matter pending in the Federal Court using its discretionary power in section 32AB if the matter is a proceeding before the Family Law Appeal Division. This will ensure that the Family Law Appeal Division cannot transfer an appeal from a decision of the FCFC to the FCFC.

Item 245 - Subsections 32AB(1), (3), (4) , (5) and (6)

486.           Item 245 amends subsections 32AB(1), (3), (4), (5) and (6) by replacing references to the ‘Federal Circuit Court’ with the ‘Federal Circuit and Family Court of Australia’. Section 32AB currently provides the power for the Federal Court to transfer a matter pending in the Federal Court, by order, to the Federal Circuit Court on the application of a party to the proceedings or on its own motion. This item expands the discretionary transfer power of the Court in section 32AB to both Divisions of the FCFC. Expanding the power is necessary as there may be related proceedings to a matter pending in the Federal Court in either Division of the FCFC. By expanding the power to cover both Divisions of the FCFC, the provision will assist in ensuring that the federal courts are able to deal with matters most efficiently. It is not intended that transfers would be made to the FCFC (Division 1) that did not appropriately reflect its continuing character as a court specialising in family law matters.

Item 246 - Subsection 32AB(7)

487.           For the reasons outlined in item 245, this item amends subsection 32AB(7) to replace the reference to ‘Federal Circuit Court’ with the ‘Federal Circuit and Family Court of Australia’. The amendment ensures the provisions operate in the same manner as they currently do, but in relation to the FCFC rather than the Federal Circuit Court.

Item 247 - Subsection 32AB(8A)

488.           Item 247 amends subsection 32AB(8A) by repealing the existing subsection and substituting new subsections 32AB(8A) and (8B). New subsection 32AB(8A) provides that the FCFC (Division 1) has jurisdiction in a matter that is the subject of a proceeding transferred to it under section 32AB, and is a matter in which the FCFC (Division 1) does not have jurisdiction apart from this subsection. New subsection 32AB(8B) provides that the FCFC (Division 2) has jurisdiction in a matter that is the subject of a proceeding transferred to it under section 32AB, and is a matter in which the FCFC (Division 2) does not have jurisdiction apart from this subsection. For the avoidance of doubt, the jurisdiction of the FCFC (Division 1) and the FCFC (Division 2) provided in subsections 32AB(8A) and (8B) is not subject to limits set by another provision. However, it is not intended that transfers would be made to the FCFC (Division 1) that did not appropriately reflect its continuing character as a court specialising in family law matters.

Item 248 - After section 32AB

489.           Item 248 inserts new section 32AC. New section 32AC provides a power for the discretionary transfer of civil proceedings from the FCFC (Division 2) by the Federal Court to the Federal Court. The provision will enable the Federal Court to ‘uplift’ matters that are not family law matters from the FCFC (Division 2). This will provide for efficiencies where, for example, there is a related matter pending in the Federal Court that could be dealt with at the same time as the matter pending in the FCFC (Division 2).

490.           Subsection 32AC(1) provides that if a proceeding is pending in the FCFC (Division 2) and it relates to a matter other than a family law or child support matter, the Federal Court may, by order, transfer the proceeding from the FCFC (Division 2) to the Federal Court. It is necessary to exclude family law matters from the subsection as the Federal Court does not have original jurisdiction for such matters.

491.           Subsection 32AC(2) provides that the Federal Court may transfer a proceeding on the application of a party or on its own motion.

492.           Subsection 32AC(3) provides that the Rules of Court may make provision in relation to transfers of proceedings from the FCFC (Division 2) under section 32AB. This will empower the Federal Court to appropriately manage such transfers. Subsection 32AC(5) provides that before making Rules of Court, the Federal Court must consult the FCFC (Division 2). This is appropriate given that the Federal Court can uplift matters without the consent of the FCFC (Division 2). However, the FCFC (Division 2) should be consulted on the making of Rules of Court to ensure that the most efficient practices are put in place for the transferring of matters between the two courts.

493.           Subsection 32AC(4) provides that the Rules of Court may set out factors to be taken into account in deciding whether to transfer a proceeding. Subsection 32AC(6) provides for specific matters that the Federal Court must have regard to in deciding whether to transfer a proceeding.  In particular, this includes any Rules of Court made for the purposes of subsection 32AC(4), whether proceedings in respect of an associated matter are pending in the Federal Court, whether the resources of the Federal Court are sufficient to hear and determine the proceeding, and the interests of the administration of justice. These requirements are similar to the requirements under existing subsection 32AB(6).

494.           Subsection 32AC(7) provides that an appeal does not lie from a decision of the Federal Court in relation to the transfer of a proceeding. This is to ensure that the Federal Court is not burdened by appeals on matters it has already determined.

495.           Subsection 32AC(8) provides that the Federal Court has jurisdiction in a matter that is the subject of a proceeding transferred to the Federal Court under this section and is a matter in which the Federal Court does not have jurisdiction apart from the subsection.

496.           Subsections 32AC(9) and (10) provide that the section does not apply to criminal proceedings or proceedings of a kind specified in the regulations.

497.           The item also inserts new subsection 32AD. New section 32AD provides for the confirmation of civil proceedings transferred from the FCFC (Division 2). Under subsection 120(1) of the Federal Circuit and Family Court of Australia Act 2018 , if a proceeding is pending in the FCFC (Division 2) that relates to a matter other than a family law matter the FCFC (Division 2) may, by order, transfer the proceeding to the Federal Court. New section 32AD seeks to limit the power of the FCFC (Division 2) to transfer matters.

498.           Subsection 32AD(1) provides that if the FCFC (Division 2) makes an order to transfer a matter under subsection 120(1) of the Federal Circuit and Family Court of Australia Act 2018 , the Federal Court may, by order, confirm the transfer of the proceeding to the Federal Court. The matter will only be transferred if the order is confirmed by the Federal Court under subsection 32AD(1). If the Federal Court decides not to confirm the transfer, it will not be transferred to the Federal Court and will remain with the FCFC (Division 2). This allows the Federal Court to maintain power over the proceedings before it and prevent the transfer of proceedings unnecessarily or in circumstances where the Federal Court does not (at the time) have the judicial resources to finalise the proceedings.

499.           Subsection 32AD(2) provides that the Federal Court may, in its discretion, receive further evidence to decide whether to make an order under subsection 32AD(1). The evidence may be taken in any of the ways mentioned in section 27 of the Act.

500.           Subsection 32AD(3) provides that the Federal Court has jurisdiction in a matter that is the subject of a proceeding transferred to it by the FCFC (Division 2) and is a matter in which the Federal Court does not have jurisdiction apart from this subsection.

501.           Subsection 32AD(4) provides that an appeal does not lie from a decision of the Federal Court in relation to an order made under subsection (1) confirming the transfer of proceedings. This is to ensure the Federal Court is not burdened with appeals in relation to matters it has already determined.

Item 249 - Subsection 32A(4)

502.           Item 249 amends subsection 32A(4) by repealing the current subsection 32A(4) and substituting a new subsection. New subsection 32A(4) provides that section 32A does not apply to a proceeding that is an indictable primary proceeding, an Australian market proceeding within the meaning of the Trans-Tasman Proceedings Act 2010 or in relation ot the Supreme Court of State or Territory specified in a Proclamation made under subsection 40(3) of the Family Law Act in relation to a proceeding to which the Proclamation applies. This provision appropriately reflects that a Supreme Court of a State or Territory that is unable to exercise original jurisdiction under the Family Law Act does not gain appellate jurisdiction by operation of section 32A of the Federal Court Act.

Item 250 - Subsection 34(1) and (2)

503.           Item 250 amends subsections 34(1) and (2), which provide for the Governor-General to make Registries of the Federal Court and to designate one of the Registries as the Principal Registry with each other Registry being a District Registry in respect of such District as specified by the Governor-General. The item amends subsection 34(1) and (2) so that it is the Minister, rather than the Governor-General, who holds the power to make Registries. Currently, there are different arrangements for the establishment of Registries between the Federal Court, Family Court and Federal Circuit Court. The amendment makes the establishment of Registries consistent across the Federal Court and both Divisions of the FCFC.

Item 251 - Subsection 32(2)

504.           For the same reasons as outlined at item 250 above, this item replaces references to ‘Governor-General’ in subsection 34(2) with ‘Minister’.

Item 252 - Subsection 49(2)

505.           Item 252 repeals subsection 49(2) and replaces it with a new subsection. New subsection (2) builds on the intent of existing subsection (2) by seeking to provide alternative options to publish orders and reasons prepared by a Judge. In particular, new subsection (2) provides that if the Federal Court reserves a judgment and the Judge who heard the proceeding (whether as a single Judge or as a member of a Full Court) subsequently prepares orders and reasons, those orders and reasons may be made public by another Judge on behalf of the Judge who heard the proceeding or as otherwise provided for by the Rules of Court. The intention of the provision is to provide for the expeditious publishing of orders and reasons, so parties to the proceeding are not left waiting for those orders and reasons to be made public where they have already been prepared. For example, it would allow another Judge to make public orders and reasons of another Judge where that other Judge is unable to do so for reasons of ill health.

506.           The item also inserts new subsection 49(2A) into the Act. New subsection 49(2A) provides that if the Federal Court reserves reasons for its decision in a proceeding and the Judge who heard the proceedings (whether as a single Judge or as a member of a Full Court) has prepared reasons, those reasons may be made public by another Judge on behalf of the Judge who heard the proceeding or as otherwise provided for by the Rules of Court. This provision has a similar intention to new subsection (2) in that it provides for the expeditious publishing of reasons, so parties to the proceeding are not left waiting for those reasons to be made public where they have already been prepared.

Item 253 - Subsection 49(3)

507.           Item 253 amends subsection 49(3) by replacing the words ‘subsection (2)’ with ‘this section’. The amendment is necessary to account for the inclusion of subsection 49(2A) in item 252 above.

Item 254 - Section 55

508.           Item 254 repeals existing section 55 and replaces it with a new section.  Existing section 55 provides for the direction of writs, summonses, orders, warrants, precepts, process and commands that would ordinarily be directed to the Sheriff in a proceeding to which the Sheriff or a Deputy Sheriff is party.  The new section will expand the operation of the existing provision to also provide for direction of writs, summonses, orders, warrants, precepts, process and commands that would ordinarily be directed to the Marshal in a proceeding to which the Marshal or a Deputy Marshal is party.  This is necessary due to the creation of the offices of Marshal and Deputy Marshall as Officers of the Court in items 205 and 208.

Item 255 - After subsection 59(1)

509.           Item 255 inserts new subsection 59(1A). New subsection (1A) provides that the Judges of the Federal Court, or a majority of them, may make Rules of Court prescribing matters required or permitted by any other provisions of this Act or any other law of the Commonwealth to be prescribed by the Rules of Court. The insertion of the new subsection is necessary to capture the new sections of the Act which provide for the making of Rules of Court. The making of Rules of Court by the Judges of the Federal Court, or a majority of them, is consistent with the approach to making Rules of Court in subsection 59(1).

Item 256 - After paragraph 59(2)(r)

510.           Item 256 inserts new paragraphs (ra) and (rb) into subsection 59(2). These new paragraphs provide that the Rules of Court may make provision for the practice and procedure of the Family Law Appeal Division and the transfer of proceedings from the FCFC (Division 2), including matters relating to costs.

 

Part 2 - Application, saving and transitional provisions

Division 1 - Application of amendments

Item 257 - Application

511.           Item 257 is an application provision, which provides that the amendments of the Family Law Act and the Federal Court Act made by Schedule 1 of the Bill apply in relation to a proceeding commenced before, on or after 1 January 2019. 1 January 2019 is the date that the FCFC will commence operation.

Division 2 - Saving and transitional provisions: Family Law Act 1975 amendments

Item 258 - Authorisation about handling complaints

512.           Item 258 provides that an authorisation made under subsection 21B(3A) of the Family Law Act and in force immediately before 1 January 2019 continues as if it had been made under subsection 32(2) of the Federal Circuit and Family Court of Australia Act 2018 .

513.           Under subclause 32(2), the Chief Justice may authorise, in writing, a person or body to assist the Chief Justice to handle complaints, to decide whether or not to handle complaints, to dismiss complaints, or to handle complaints. Previous subsection 21B(3A) of the Family Law Act provided for a similar authorisation.

514.            This amendment reflects the continuation of the Family Court in the Federal Circuit and Family Court of Australia (Division 1) (see section 8 of the Federal Circuit and Family Court of Australia Act 2018 ). The saving of an authorisation made under subsection 21B(3A) of the Family Law Act is appropriate given the instrument will survive in effect through subsection 32(2) of the Federal Circuit and Family Court of Australia Act 2018 and it would be administratively cumbersome and unnecessary to remake every subsection 21B(3A)  authorisation.

Item 259 - Arrangements with other courts

515.           Item 259 provides that an arrangement made under subsection 38BAA(1) of the Family Law Act and in force immediately before 1 January 2019 continues as if it had been made under subsection 58(1) of the Federal Circuit and Family Court of Australia Act 2018 .

516.           Subsection 58(1) enables the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) to arrange with the chief judicial officer of another federal, state or territory court, for an officer or officers of that court to perform a series of functions on the behalf of the Federal Circuit and Family Court of Australia (Division 1). Previous subsection 38BAA(1) of the Family Law Act allowed similar arrangements.

517.           This amendment reflects the continuation of the Family Court in the Federal Circuit and Family Court of Australia (Division 1) (see section 8 of the Federal Circuit and Family Court of Australia Act 2018 ). The saving of an arrangement made under subsection 38BAA(1) of the Family Law Act is appropriate given the instrument will survive in effect through subsection 58(1) of the Federal Circuit and Family Court of Australia Act 2018 and it would be administratively cumbersome and unnecessary to remake every subsection 38BAA(1) arrangement.

Item 260 - Arrangements with agencies or organisations

518.           Item 260 provides that an arrangement made under subsection 38BAB(1) of the Family Law Act and in force immediately before 1 January 2019 continues as if it had been made under subsection 59(1) of the Federal Circuit and Family Court of Australia Act 2018 .

519.           Subsection 59(1) enables the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) to arrange with the chief executive officer of another organisation, including a government agency, for an employee of that organisation or agency to receive documents or perform non judicial functions on behalf of the FCFC (Division 1). Previous subsection 38BAB(1) of the Family Law Act allowed similar arrangements.

520.           This amendment reflects the continuation of the Family Court in the FCFC (Division 1) (see section 8 of the Federal Circuit and Family Court of Australia Act 2018 ). The saving of an arrangement made under subsection 38BAB(1) of the Family Law Act is appropriate given the instrument will survive in effect through subsection 59(1) of the Federal Circuit and Family Court of Australia Act 2018 and it would be administratively cumbersome and unnecessary to remake every subsection 38BAB(1) arrangement.

Item 261 - Delegation

521.           Item 261 provides that an instrument made under section 38W of the Family Law Act and in force immediately before 1 January 2019 continues as if it had been made under section 76 of the Federal Circuit and Family Court of Australia Act 2018 .

522.           Section 76 provides that the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) may, in writing, delegate any or all of his or her powers under section 56 to the Judges of the FCFC (Division 1). Previous subsection 38W of the Family Law Act allowed a similar delegation.

523.           This amendment reflects the continuation of the Family Court in the Federal Circuit and Family Court of Australia (Division 1) (see section 8 of the Federal Circuit and Family Court of Australia Act 2018 ). The saving of an instrument made under section 38W of the Family Law Act is appropriate given the instrument will survive in effect through section 76 of the Federal Circuit and Family Court of Australia Act 2018 and it would be administratively cumbersome and unnecessary to remake every section 38W instrument.

Item 262 - Proclamation

524.           Item 262 provides that a Proclamation made under subsection 96(3) of the Family Law Act and in force immediately before 1 January 2019 continues as if it had been made under new subsection 47A(4) of the Family Law Act (as inserted by item 72 of this Bill).

525.           New subsection 47A(4) provides that the Governor-General may, by Proclamation, fix a date as the date on or after which appeals to the Supreme Court of a specified State or Territory under this section may not be instituted. Previous subsection 96(3) of the Family Law Act had the same effect. Subsection 96(3) is repealed by item 114 as part of the repeal of Part X. These amendments are consequential to the amendments providing for the new court structure.

526.           Item 262 has the effect of saving the operation of the existing Proclamation, made under subsection 96(3), ceasing the jurisdiction of Supreme Courts of specified States and Territories from hearing appeals from courts of summary jurisdiction. Additionally, paragraph (b) provides that the Supreme Courts, specified in the saved proclamation, are also specified for appeals in relation to the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 . This has been included to ensure that the inclusion of these Acts in section 47A does not have the unintended result that a Supreme Court of a State or Territory, that has not been conferred with jurisdiction to hear appeals from courts of summary under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 can hear appeal appeals.

527.           Under new section 101 of the Child Support (Assessment Act) 1989 (see item 167 of Schedule 3 of this Bill) and section 106 of the Child Support (Registration and Collection) Act 1988 (see item 181 of Schedule 3 of this Bill), only the Supreme Court of the Northern Territory and the Family Court of a State are conferred jurisdiction to hear appeals from a court of summary jurisdiction in the relevant Territory or State.   

528.           The saving of a Proclamation made under subsection 96(3) of the Family Law Act is appropriate as it would be administratively cumbersome and unnecessary to remake the subsection 96(3) Proclamation.

Item 263 - Oaths and Affirmations

529.           Item 263 provides that an authorisation made under subsection 98AA(2) of the Family Law Act and in force immediately before 1 January 2019 continues as if it had been made under subsection 52(2) of the Federal Circuit and Family Court of Australia Act 2018 .

530.           Subsection 52(2) provides that a Judge may cause the administration of oaths and affirmations and for this purpose the Federal Circuit and Family Court of Australia  (Division 1) may either orally or in writing authorise any person (whether they are in or outside Australia) to administer oaths and affirmations. The Chief Executive Officer may, in writing, authorise a Registrar or Deputy Registrar, or a staff member of the Federal Circuit and Family Court of Australia (Division 1) to administer oaths and affirmations for the purposes of the Court. Previous subsection 98AA(2) of the Family Law Act allowed the same arrangements. This subsection has been repealed by item 121 of Schedule, above.

531.           This amendment reflects the continuation of the Family Court in the Federal Circuit and Family Court of Australia (Division 1) (see section 8 of the Federal Circuit and Family Court of Australia Act 2018 ). The saving of an authorisation made under subsection 98AA(2) of the Family Law Act is appropriate given the power will survive in effect through subsection 52(2) of the Federal Circuit and Family Court of Australia Act 2018 and it would be administratively cumbersome and unnecessary to remake every subsection 98AA(2) authorisation.

Item 264 - Continuity of Rules of Court

532.           Item 264 provides that amendments made by items 134, 143, 152, 165 and 167 of this Schedule do not affect the continuity, amendment or repeal of any Rules of Court made for the purposes of section 123 of the Family Law Act that are in force immediately before 1 January 2019. These amendments omit references to the Rules of Court being made by Judges and substitute ‘the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)’ consistent with the amendment in item 152 which provides that the Chief Justice of Division 1 has the power to make Rules of Court under section 123 of the Act.

533.           This amendment reflects the continuation of the Family Court in the Federal Circuit and Family Court of Australia (Division 1) (see section 8 of the Federal Circuit and Family Court of Australia Act 2018 ), and clarifies that the change in who has the power to make the Rules of Court does not affect their continuity or their ability to be amended or repealed.

Division 3 - Saving and transitional provisions: Federal Court of Australia Act 1976 amendments

Item 265 - Registries of the Federal Court of Australia

534.           Item 265 relates to the Registries of the Federal Court. Subsection (1) provides that, despite the amendment of section 34 of the Federal Court Act, a Registry of the Federal Court existing immediately before 1 January 2019 continues in existence on and after that day. This provision ensures that Registries of the Federal Court that have already been established will continue in operation.

535.           Subsection (2) provides that the amendment of section 34 of the Federal Court Act by Schedule 1 does not affect the designation, before 1 January 2019, of a Registry of the Federal Court as the Principal Registry of the Federal Court or the specification, before 1 January 2019, of a District (in respect of which a District Registry of the Federal Court exists).



Schedule 2 - Further consequential amendments

Administrative Appeals Tribunal Act 1975

Item 1 - Paragraph 7(2)(a)

536.           Item 1 updates the reference to the ‘Family Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in paragraph 7(2)(a) of the Administrative Appeals Tribunal Act 1975 . Paragraph 7(2)(a) currently provides for qualifications for appointment as a Deputy President of the Administrative Appeals Tribunal (‘Tribunal’). The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not alter the eligibility requirements for appointment as a Deputy President of the Tribunal as provided by paragraph 7(2)(a).

Item 2 - Subsection 43(5C)

537.           Item 2 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 43(5C) . Where the Tribunal has stayed the operation or implementation of a decision under review to allow the Tribunal to effectively consider the decision and the Tribunal makes a decision, subsection 43(5C) currently provides for the Tribunal’s decision on review to be stayed until the end of the period to appeal or the appeal is determined, unless the Tribunal, the Federal Court or the Federal Circuit Court otherwise orders. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 43(5C).

Item 3 - Subsection 44(1) (note 2)

538.           Item 3 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the notes to subsection 44(1). Note 2 to subsection 44(1) currently provides that a party to a child support first review may in some instances appeal instead to the Federal Circuit Court and directs to section 44AAA. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of the note.

Item 4 - Section 44AAA (heading)

539.           Item 4 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to section 44AAA. The heading now reads ‘Appeals to the Federal Circuit and Family Court of Australia (Division 2) from decisions of the Tribunal in relation to child support first reviews’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 5 - Subsections 44AAA(1) and (2)

540.           Item 5 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsections 44AAA(1) and (2). Section 44AAA currently provides for appeals to the Federal Circuit Court from decisions of the Tribunal in relation to child support first reviews. Subsection 44AAA(1) provides that if the Tribunal as constituted during a child support first review did not include a presidential member, a party may appeal to the Federal Circuit Court on a question of law from any decision of the Tribunal. Subsection 44AAA(2) provides provisions that apply in relation to such an appeal and a reference in those provisions to the Federal Court apply as if they were a reference to the Federal Circuit Court. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsections 44AAA(1) and (2).

Item 6 - Subsection 44AAA(3)

541.           Item 6 updates the reference in subsection 44AAA(3) to the ‘ Federal Circuit Court of Australia Act 1999 ’ to be ‘Chapter 4 of the Federal Circuit and Family Court of Australia Act 2018 ’.

542.           Section 44AAA currently provides for appeals to the Federal Circuit Court from decisions of the Tribunal in relation to child support first reviews. Subsection (3) applies paragraph 44(2A)(b) to an appeal under the section and provides that a reference to rules of court made under the Federal Court Act  is a reference to Rules of Court made under the Federal Circuit Court Act. The amendment updates the legislative reference and does not affect the intent of subsection 44AAA(3).

Item 7 - Section 44AA (heading)

543.           Item 7 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to section 44AA. The heading now reads ‘Transfer of appeals from Federal Court to Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 8 - Subsections 44AA(1), (2), (4), (5), (6), (7), (8) and (9)

544.           Item 8 updates references to the ‘‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’in section 44AA. Section 44AA currently deals with transfer of appeals from the Federal Court to the Federal Circuit Court. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsections 44AA(1), (2), (4), (5), (6), (7), (8) and (9).

Item 9 - Subsection 44AA(11) (heading)

545.           Item 9 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to subsection 44AA(11). The heading now reads ‘Federal Circuit and Family Court of Australia (Division 2) may make findings of fact’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 10 - Subsections 44AA(11) and (12)

546.           Item 10 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsections 44AA(11) and (12). Subsections 44AA(11) and (12) currently deal with the Federal Circuit Court being able to make findings of fact. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively change the operation of subsections 44AA(11) and (12).

Item 11 - Subsection 44A(2A)

547.           Item 11 updates the reference to the ‘Federal Circuit Court of Australia, the Federal Circuit Court of Australia or a Judge of the Federal Circuit Court of Australia’ to the ‘Federal Circuit and Family Court of Australia (Division 2), the Federal Circuit and Family Court of Australia (Division 2) or a Judge of that Court’ in subsection 44A(2A). Subsection 44A(2A) currently provides that the Federal Circuit Court or a Judge of the Federal Circuit Court may order a stay of all or part of a Tribunal decision which is the subject of an appeal in the Court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2). The use of ‘that Court’ refers to the FCFC (Division 2) and saves repeating the name again in full. The amendment does not substantively alter the operation of subsection 44A(2A).

Item 12 - Subsection 44A(2A)

548.           Item 12 updates the reference to the ‘Federal Circuit Court of Australia or Judge of the Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2) or a Judge of the Court’ in subsection 44A(2A). Subsection 44A(2A) currently provides that the Federal Circuit Court or a Judge of the Federal Circuit Court may order a stay of all or part of a Tribunal decision which is the subject of an appeal in the Federal Circuit Court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2). The use of ‘the Court’ refers to the FCFC (Division 2) and saves repeating the name again in full. The amendment does not substantively alter the operation of subsection 44A(2A).

Item 13 - Paragraph 44A(3)(b)

549.           Item 13 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in paragraph 44A(3)(b). Section 44A currently deals with the operation and implementation of a decision that is subject to appeal. Paragraph 44A(3)(b) provides for the Federal Circuit Court to make an order varying or revoking an order made under subsection 44A(2) or (2A). The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of paragraph 44A(3)(b).

Item 14 - Section 46 (heading)

550.           Item 14 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to section 46. The heading now reads ‘Sending of documents to, and disclosure of documents by, the Federal Court and the FCFC (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 15 - Subsections 46(1), (2) and (3)

551.           Item 15 updates references to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsections 46(1), (2) and (3). Section 46 currently provides for the sending of documents to, and disclosure of documents by, the Federal Court and the Federal Circuit Court. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsections 46(1), (2) and (3).

Administrative Decisions (Judicial Review) Act 1977

Item 16 - Subsection 3(1) (definition of Family Court Judge )

552.           Item 16 repeals the definition of ‘Family Court Judge’ in subsection 3(1) of the Administrative Decisions (Judicial Review) Act 1977 . Subsection 3(1) provides definitions to assist in interpreting the Act. The definition currently provides that ‘Family Court Judge’ means ‘a Judge of the Family Court (including the Chief Justice, the Deputy Chief Justice or a Senior Judge)’. The definition is no longer required as the Family Court will be continued as the FCFC (Division 1). Where references in the Act are made to a Judge of the FCFC (Division 1), the reference is provided in full.

Item 17 - Subsection 3(1)

553.           Item 17 inserts a definition of the FCFC (Division 2) Rules into subsection 3(1). Subsection 3(1) provides definitions to assist in interpreting the Act. The new definition provides that the ‘Federal Circuit and Family Court of Australia (Division 2) Rules means the Rules of Court made under Chapter 4 of the Federal Circuit and Family Court of Australia Act 2018 ’. The amendment appropriately references the new enabling Act under which the FCFC (Division 2) Rules will be made.

Item 18 - Subsection 3(1)

554.           Item 18 repeals the definitions of ‘Federal Circuit Court’, ‘Federal Circuit Court Rules’ and ‘the Family Court’ in subsection 3(1). Subsection 3(1) provides definitions to assist in interpreting the Act. These definitions are no longer required as the Federal Circuit Court will be continued as the FCFC (Division 2), the applicable Rules will be the FCFC (Division 2) Rules, and the Family Court will be continued as the FCFC (Division 1). Where references in the Act are made to either Division of the FCFC, the title of that Court is provided in full. See item 17 for the definition of the ‘Federal Circuit and Family Court of Australia (Division 2) Rules’.

Item 19 - Subsection 3(10)

555.           Item 19 amends references to the way matters may be transferred from the FCFC (Division 2) to the Federal Court in subsection 3(10). Subsection 3(10) currently provides that a reference in the Act to an application made to the Federal Court includes a reference to an application made in the Federal Circuit Court and subsequently transferred to the Federal Court under Part 5 of the Federal Circuit Court Act. The provision will now refer to the updated transfer provisions. New section 32AC of the Federal Court Act provides the Federal Court with the power to transfer matters, other than proceedings relating to family law matters, on its own initiative or on the application of a party from the FCFC (Division 2). See item 248 of Schedule 1 of this Explanatory Memorandum for further guidance. Section 120 of the Federal Circuit and Family Court of Australia Act 2018 similarly provides the FCFC (Division 2) with the power to transfer matters, other than proceedings relating to family law matters, on its own initiative or on the application of a party to the Federal Court, though the Federal Court must confirm such a transfer under new section 32AD of the Federal Court of Act. See item 250 of Schedule 1 of this Explanatory Memorandum for further guidance. This item amends subsection 3(10) to reflect the new law.

Item 20 - Subsection 3(11)

556.           Item 20 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 3(11). Subsection 3(11) currently provides that a reference in the Act to an application made to the Federal Circuit Court includes a reference to an application made in the Federal Court and subsequently transferred to the Federal Circuit Court under section 32AB of the Federal Court Act, and an application that could have been made directly to the Federal Circuit Court. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsection 3(11).

Item 21 - Subsection 3(12)

557.           Item 21 repeals subsection 3(12). Subsection 3(12) currently provides for section 19 of the Federal Circuit Court Act to be disregarded. This Act will be repealed and so is no longer relevant.

Item 22 - Subsections 5(1) and 6(1)

558.           Item 22 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsections 5(1) and 6(1). Section 5 currently deals with applications for review of decisions. Section 6 deals with applications for review of conduct related to making of decisions. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsections 5(1) or 6(1).

Item 23 - Section 7

559.           Item 23 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in section 7. Section 7 currently deals with applications in respect of failures to make decisions. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of section 7.

Item 24 - Section 8 (heading)

560.           Item 24 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to section 8. The heading now reads ‘Jurisdiction of Federal Court and Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 25 - Subsection 8(2)

561.           Item 25 repeals subsection 8(2) and replaces it with a new subsection. Section 8 currently provides for the jurisdiction of the Federal Court and Federal Circuit Court to hear and determine applications made to the respective courts under the Act. The main change made by the new subsection is that it refers to the ‘Federal Circuit and Family Court of Australia (Division 2)’, rather than the ‘Federal Circuit Court’. The use of ‘the Court’ refers to the FCFC (Division 2) and saves repeating the name again in full. The note no longer refers to subsection 3(12), as this subsection will be repealed by item 21. The substitution appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 26 - Section 10

562.           Item 26 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in section 10. Section 10 currently provides for rights conferred by the Act to be in addition to other rights. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of section 10.

Item 27 - Subsection 11(1)

563.           Item 27 updates the first reference to the ‘Federal Circuit Court’ in subsection 11(1) to be ‘Federal Circuit and Family Court of Australia (Division 2)’. Section 11 currently provides for the manner of making applications to the Federal Court or Federal Circuit Court. Subsection 11(1) provides how to make applications to the Federal Court or the Federal Circuit Court for an order of review, and what to include. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 11(1).

Item 28 - Subparagraph 11(1)(a)(ii)

564.           Item 27 updates the reference to the ‘Federal Circuit Court-Federal Circuit Court Rules’ to be ‘Federal Circuit and Family Court of Australia (Division 2)- Federal Circuit and Family Court of Australia (Division 2) Rules’ in subparagraph 11(1)(a)(ii). Subparagraph 11(1)(a)(ii) currently provides that an application to the Federal Circuit Court for an order of review of a decision is to be made in a manner as prescribed by the Federal Circuit Court Rules. See item 16 for the definition of the ‘Federal Circuit and Family Court of Australia (Division 2) Rules’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and refers to the appropriate applicable Rules for that court and does not substantively alter the operation of subparagraph 11(1)(a)(ii).

Item 29 - Subsection 11(2)

565.           Item 29 updates the first reference to the ‘Federal Circuit Court’ in subsection 11(2) to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 11(2). Subsection 11(2) currently deals with the manner of making applications to the Federal Court or the Federal Circuit Court for any application other than an order of review. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 30 - Paragraph 11(2)(b)

566.           Item 30 updates the reference to the ‘Federal Circuit Court-Federal Circuit Court Rules’ to be ‘Federal Circuit and Family Court of Australia (Division 2)- Federal Circuit and Family Court of Australia (Division 2) Rules’ in paragraph 11(2)(b). Paragraph 11(2)(b) currently provides that an application to the Federal Circuit Court for any application other than order of review is to be made as prescribed by the Federal Circuit Court Rules. See item 17 for the definition of the ‘Federal Circuit and Family Court of Australia (Division 2) Rules’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and refers to the appropriate applicable Rules for that court and does not substantively alter the operation of paragraph 11(2)(b).

Items 31 and 32 - Subparagraph 11(3)(b)(ii) and subsections 11(4) and (7)

567.           Items 31 and 32 update references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsections 11(3), (4) and (7). Subsections 11(3) and (4) currently set out the period in which to lodge an application with the Federal Court or the Federal Circuit Court for an order of review. Subsection 11(7) provides for the Federal Court or the Federal Circuit Court to permit a document lodged with a registry of the Court in connection with an application under the Act be amended or direct such a document be amended. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subparagraph 11(3)(b)(ii), or subsections 11(4) and (7).

Item 33 - subsection 11(8A)

568.           Item 33 repeals subsection 11(8A) and replaces it with a new subsection. The main change made by the new subsection is that it updates references to the ‘Federal Circuit Court Rules’ to be ‘Federal Circuit and Family Court of Australia (Division 2) Rules’ and ‘Registry of the Federal Circuit Court’ to be ‘Registry of the Federal Circuit and Family Court of Australia (Division 2)’. Subsection 11(8A) currently provides that the Federal Circuit Court Rules may make provision in relation to service of documents. See item 17 for the definition of the ‘Federal Circuit and Family Court of Australia (Division 2) Rules’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and applicable Rules for that Court and does not substantively alter the operation of subsection 11(8A).

Item 34 - Subsection 11(9)

569.            Item 34 updates the reference to the ‘Federal Circuit Court Rules’ to be ‘Federal Circuit and Family Court of Australia (Division 2) Rules’ in subsection 11(9). Subsection 11(9) currently provides that substantial, rather than strict, compliance with the Federal Court Rules or the Federal Circuit Court Rules is sufficient for the purposes of section 11. See item 17 for the definition of the ‘Federal Circuit and Family Court of Australia (Division 2) Rules’. The amendment appropriately reflects what will be the applicable Rules of the FCFC (Division 2) and does not substantively alter the operation of subsection 11(9).

Items 35 - Subsection 12(1)

570.           Item 35 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 12(1). Subsection 12(1) currently provides that an interested person may apply to either the Federal Court or the Federal Circuit Court to be made a party to the application. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 12(1).

Item 36 - Section 13

571.           Item 36 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in section 13. Section 13 currently provides that a person aggrieved by a decision to which the Act applies may request the decision-maker to provide reasons for the decision. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of section 13.

Item 37 - Subsections 13A(4) and 14(4)

572.           Item 37 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsections 13A(4) and 14(4). Section 13A currently deals with certain information that is not required to be disclosed. Section 14 provides for certification by the Attorney-General concerning the disclosure of information. Subsections 13A(4) and 14(4) provide that the Federal Court or the Federal Circuit Court retain power to make an order for the discovery of documents or to require the giving of evidence or the production of documents to the Court. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsections 13A(4) and 14(4).

Item 38 - Section 15A (heading)

573.           Item 38 repeals the heading of section 15A and replaces it with ‘15A Stay of proceedings- Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 39 - Subsection 15A(1)

574.           Item 39 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 15A(1). Subsection 15A(1) currently provides for the Federal Circuit Court to, by order, suspend the operation of a decision and stay all or any of the proceedings under review in the Court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 15A(1).

Items 40 and 41 - Paragraphs 15A(1)(a) and (b) and subsection 15A(2)

575.           Items 40 and 41 update references to the ‘Federal Circuit Court of Australia or a Judge’ to be ‘Federal Circuit and Family Court of Australia (Division 2) or a Judge of that Court’ in paragraphs 15A(1)(a) and (b), and subsection 15A(2). Paragraphs 15(1)(a) and (b) currently provide for the Federal Circuit Court to, by order, suspend the operation of a decision and stay all or any of the proceedings under review in the Federal Circuit Court. Subsection 15A(2) provides for the Federal Circuit Court to make such an order on the initiative of the Federal Circuit Court or on application. The use of ‘that court’ refers to the FCFC (Division 2) and saves repeating the name again in full. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of paragraphs 15A(1)(a) and (b), and subsection 15A(2).

Item 42 - Subsection 15A(3)

576.           Item 42 repeals subsection 15A(3). Subsection 15A(3) currently defines the expression ‘the Federal Circuit Court of Australia or a Judge’ for the purposes of section 15A by reference to the definition in the Federal Circuit Court Act . An equivalent of this section is no longer required as paragraphs 15A(1)(a) and (b) and subsection 15A(2) will now refer to the ‘Federal Circuit and Family Court of Australia (Division 2) or a Judge of that Court’, making it clear that a Judge authorised to make these orders will be a Judge of the FCFC (Division 2).

Item 43 - Section 16 (heading)

577.           Item 43 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to section 16. The heading now reads ‘Powers of the Federal Court and the FCFC (Division 2) in respect of applications for order of review’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 44 - Section 16

578.           Item 44 updates references to the ‘Federal Circuit Court’ to be the ‘Federal Circuit and Family Court of Australia (Division 2)’ in section 16. Section 16 currently deals with the powers of the Federal Court and the Federal Circuit Court in respect of applications for order of review. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of section 16.

Item 45 - Paragraph 17(a)

579.           Item 45 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in paragraph 17(a). Section 17 currently deals with the situation where a person has made a decision in performing duties of an office but is no longer performing those duties. Paragraph 17(a) deals with where a person has, in the performance of the duties of an office, made a decision in respect of which an application may be made to the Federal Court or the Federal Circuit Court under the Act. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does substantively not alter the operation of paragraph 17(a).

Item 46 - Subsection 18(1)

580.           Item 46 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 18(1). Subsection 18(1) currently provides for the Attorney-General, on behalf of the Commonwealth, to intervene in a proceeding before the Federal Court or the Federal Circuit Court under the Act. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 18(1).

Item 47 - Section 18A (heading)

581.           Item 47 updates reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in the heading to section 18A. The heading now reads ‘Transfer of proceedings to Federal Circuit and Family Court of Australia (Division 1)’. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1).

Items 48 to 50 - Subsections 18A(1), (2) and (3), paragraphs 18A(3)(a), (b), (c), (d) and (e), and subparagraph 18A(3)(f)(i)

582.           Items 48 to 50 update references to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in subsections 18A(1), (2) and (3). Section 18A currently deals with transfer of proceedings to the Family Court from the Federal Court. The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and do not alter the operation of subsections 18A(1), (2) and (3), paragraphs 18A(3)(a), (b), (c), (d) and (e), and subparagraph 18A(3)(f)(i).

Item 51 - Subparagraphs 18A(3)(f)(ii) and (iii)

583.           Item 51 updates references to ‘Family Court Judge’ to be ‘Judge of the Federal Circuit and Family Court of Australia (Division 1)’ in subparagraphs 18A(3)(f)(ii) and (iii). Subparagraphs 18A(3)(f)(ii) and (iii) currently provide that a reference to a ‘Judge of the Federal Court’ includes a reference to a Family Court Judge and a reference to ‘the Court or a Judge’ when used in relation to the Federal Court includes a reference to a Family Court Judge sitting in Chambers. The amendments appropriately reflect the continuation of Judges of the Family Court as Judges of the FCFC (Division 1).

Items 52 and 53 - Subparagraph 18A(3)(f)(iv) and subsections 18A(4) and (5)

584.           Items 52 and 53 update references to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in subparagraph 18A(3)(f)(iv) and subsections 18A(4) and (5). Subparagraph 18A(3)(f)(iv) currently provides for a reference to a Registrar of the Federal Court to include a reference to a Registrar of the Family Court. Subsection 18A(4) currently provides for the Family Court to give directions and make orders to resolve difficulties arising in the granting of remedies, making orders and issuing writs. Subsection 18A(5) provides that parties cannot appeal a Federal Court decision to transfer a proceeding under the Act to the Family Court. The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the operation of subparagraph 18A(3)(f)(iv) and subsections 18A(4) and (5).

Item 54 - Subsection 19(1)

585.           Item 54 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 19(1). Subsection 19(1) currently provides that regulations may declare that a class or classes of decisions not be subject to judicial review by the Federal Court or the Federal Circuit Court under the Act. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 19(1).

Item 55 - Paragraph (zd) of Schedule 1

586.           Item 55 repeals paragraph (zd) of Schedule 1. Schedule 1 lists classes of decisions that are not decisions to which this Act applies. Paragraph (zd) currently provides for certain decisions made under the Family Law Act. These decisions are being repealed because the equivalent decisions that will be made under the Federal Circuit and Family Court of Australia Act 2018 are included in the new paragraph (zf) of Schedule 1. The amendment appropriately reflects the structural changes of the courts and, in combination with item 56, does not affect the intent of Schedule 1.

Item 56 - Paragraph (zf) of Schedule 1

587.           Item 56 repeals the paragraph and substitutes a new paragraph (zf). Schedule 1 lists classes of decisions that are not decisions to which this Act applies. Paragraph (zf) currently provides for certain decisions made by the Chief Judge of the Federal Circuit Court under the Federal Circuit Court Act. These decisions are being repealed and the equivalent decisions that will be made under the Federal Circuit and Family Court of Australia Act 2018 are being included in the new paragraph (zf).  The amendment appropriately reflects the structural changes of the courts and, in combination with item 55, does not affect the intent of Schedule 1.

 

Admiralty Act 1988

Item 57 - Subsection 3(1) (definition of Federal Circuit Court )

588.           Item 57 repeals the definition of ‘Federal Circuit Court’ in subsection 3(1) of the Admiralty Act 1988 . Subsection 3(1) provides definitions to assist in interpreting the Act. The definition is no longer required as the Federal Circuit Court will be continued as the FCFC (Division 2). Where references in the Act are made to the FCFC (Division 2), the reference is provided in full.

Item 58 - Subsections 9(1) and 27(1)

589.           Item 58 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsections 9(1) and 27(1). Subsection 9(1) confers jurisdiction on the Federal Court, the Federal Circuit Court and on the Courts of the Territories, and invests federal jurisdiction in the Courts of the States, for in personam actions on a maritime claim or on a claim for damage done to a ship. Subsection 27(1) currently provides for a transfer of proceedings between courts with jurisdiction to hear admiralty actions in rem. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsections 9(1) and 27(1).

Item 59 - Paragraph 28(1)(aa)

590.           Item 59 repeals paragraph 28(1)(aa) and replaces it with new paragraph (aa), which refers to ‘the Federal Circuit and Family Court of Australia (Division 2)’. Section 28 deals with remittal of action in rem proceedings. Paragraph 28(1)(aa) currently provides that where an action in rem has already commenced in the Federal Court or in the Supreme Court of a State, the Court may remit the proceeding for hearing to the Federal Circuit Court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of paragraph 28(1)(aa).

Item 60 - Subsection 28(7)

591.           Item 60 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 28(7). Section 28 deals with remittal of action in rem proceedings. Subsection 28(7) currently provides that the second court is invested with federal jurisdiction, or jurisdiction is conferred on the second court if the second court is the Federal Circuit Court or a court of a Territory, to hear the matter. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 28(7).

Item 61 - Subsection 41(4)

592.           Item 61 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 41(4). Section 41 provides for the Governor-General to make Rules for courts exercising jurisdiction under the Act. Subsection 41(1) currently confers jurisdiction on the Federal Court, the Federal Circuit Court and on the Courts of the Territories, and the Courts of the States are invested with federal jurisdiction, in respect of matters arising under the Rules made under the Act. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 41(4).

 

Aged Care Act 1997 

Item 62 - Paragraph 95C-1(3)(b)

593.           Item 62 repeals paragraph 95C-1(3)(b) in the Aged Care Act 1997 and replaces it with  new paragraph (b), which refers to ‘the Federal Circuit and Family Court of Australia (Division 2)’. Paragraph 95C-1(3)(b) currently gives jurisdiction to the Federal Circuit Court to enforce civil penalty provisions of the Act. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 95C-1(3).

 

Age Discrimination Act 2004

Item 63 - Schedule 1 (table item 26)

594.           Item 63 repeals table item 26 in Schedule 1 of the Age Discrimination Act 2004 and replaces it with ‘ Federal Circuit and Family Court of Australia Act 2018 ’. Schedule 1 provides a list of legislation for the purposes of section 39(1). Section 39(1) provides that Part 4 of the Act does not make unlawful anything done in direct compliance with the Acts listed in Schedule 1. The amendment updates the legislative reference to reflect the change in law and does not affect the intent of Schedule 1.

 

A New Tax System (Family Assistance) (Administration) Act 1999

Item 64 - Subsection 102D(1) (note)

595.           Item 64 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the note to subsection 102D(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 . The note to subsection 102D(1) currently refers to Subdivision E as it deals with appeals to the Federal Court or the Federal Circuit Court against the making of departure prohibition orders. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the effect of the note to subsection 102D(1).

Item 65 - Subsection 102N(1)

596.           Item 65 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 102N(1). Subsection 102N(1) currently deals with appeals to the Federal Court or the Federal Circuit Court against the making of a departure prohibition order. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 102N(1).

Item 66 - Subparagraph 219UA(4)(c)(i)

597.           Item 66 repeals subparagraph 219UA(4)(c)(i) and replaces it with new subparagraph (i), which refers to ‘a Judge of the Federal Circuit and Family Court of Australia (Division 2)’. Subparagraph 219UA(4)(c)(i) currently provides that a Judge of the Federal Circuit Court is an issuing officer for the purposes of Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 . The amendment appropriately reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2).

Item 67 - Subparagraph 219UA(4)(e)(ii)

598.           Item 67 repeals subparagraph 219UA(4)(e)(ii) and replaces it with new subparagraph (ii), which refers to ‘the Federal Circuit and Family Court of Australia (Division 2)’. Subparagraph 219UA(4)(e)(ii) currently provides that the Federal Circuit Court is a relevant court for the purposes of Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 . The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of paragraph 219UA(4)(e).

Item 68 - Paragraph 219VA(3)(b)

599.           Item 68 repeals paragraph 219VA(3)(b) and replaces it with new paragraph (b), which refers to ‘the Federal Circuit and Family Court of Australia (Division 2)’. Paragraph 219VA(3)(b) currently provides for the Federal Circuit Court to be a relevant court for the purposes enforcing civil penalty provisions of the Act under Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 . The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 219VA(3).

Item 69 - Subsection 219VB(5)

600.           Item 69 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 219VB(5). Subsection 219VB(5) currently provides that the Secretary may apply to the Federal Court or the Federal Circuit Court to order that a person comply with a requirement to give all reasonable assistance in connection with an application for a civil penalty order. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 219VB(5).

 

 

Antarctic Treaty (Environment Protection) Act 1980

Item 70 - Subsection 3(1) (paragraph (b) of the definition of Court )

601.           Item 70 repeals paragraph (b) of the definition of ‘Court’ in subsection 3(1) of the Antarctic Treaty (Environment Protection) Act 1980 and replaces it with new paragraph (b), which refers to ‘the Federal Circuit and Family Court of Australia (Division 2)’. Currently, paragraph (b) of the definition of Court defines ‘Court’ as being ‘the Federal Circuit Court of Australia’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the meaning of ‘Court’ in subsection 3(1).

 

Archives Act 1983

Item 71 - Subsections 53(6) and (7) and 55A(4) and (5)

602.           Item 71 updates references to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsections 53(6) and (7) and 55A(4) and (5) of the Archives Act 1983 . Section 53 deals with the production of exempt records. Section 55A deals with the automatic stay of certain decisions on appeal. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsections 53(6) and (7) and 55A(4) and (5).

 

Australian Charities and Not-for-profits Commission Act 2012

Item 72 - Section 300-5 (definition of issuing officer )

603.           Item 72 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in section 300-5 of the Australian Charities and Not-for-profits Commission Act 2012 . Currently, ‘issuing officer’ is defined as ‘a magistrate or a Judge of the Federal Circuit Court of Australia. The amendment appropriately reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not substantively alter the meaning of ‘issuing officer’ in section 300-5.

 

Australian Crime Commission Act 2002

Item 73 - Subsection 4(1) (definition of Federal Circuit Court )

604.           Item 73 repeals the definition of ‘Federal Circuit Court’ in subsection 4(1) of the Australian Crime Commission Act 2002 . Subsection 4(1) provides definitions to assist in interpreting the Act. The definition is no longer required as the Federal Circuit Court will be continued as the FCFC (Division 2). Where references in the Act are made to the FCFC (Division 2), the reference is provided in full.

Item 74 - Subsection 4(1) (paragraph (aa) of the definition of issuing officer )

605.           Item 74 updates the reference to the ‘Federal Circuit Court’ to be the ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 4(1). Paragraph (aa) of the definition of ‘issuing officer’ in subsection 4(1) currently provides that it means ‘a Judge of the Federal Circuit Court’. The amendment appropriately reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not substantively alter the meaning of ‘issuing officer’ in subsection 4(1).

Item 75 - Paragraph 25E(2)(b)

606.           Item 75 updates the reference to the ‘Family Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in paragraph 25E(2)(b). Paragraph 25E(2)(b) currently excludes the Family Court from ordering that material may be disclosed. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of paragraph 25E(2)(b).

Item 76 - Subsection 27(2A)

607.           Item 76 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 27(2A). Subsection 27(2A) currently permits applicants or potential applicants to the Federal Circuit Court to apply to the Attorney-General requesting assistance in respect of the application. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsection 27(2A).

Item 77 - Paragraph 55A(1)(c)

608.           Item 77 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in paragraph 55A(1)(c). Paragraph 55A(1)(c) currently provides a Judge of the Federal Court or a Judge of the Federal Circuit Court with legislative consent as to the conferral of certain duties, functions and powers under State laws. The amendment appropriately reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not substantively alter the operation of paragraph 55A(1)(c).

Item 78 - Subsection 55A(5B) (heading)

609.           Item 78 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to subsection 55A(5B). The heading now reads ‘Judge of the Federal Court or Judge of the Federal Circuit and Family Court of Australia (Division 2)’.  The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 79- Subsections 55A(5B) and (5C)

610.           Item 79 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsections 55A(5B) and (5C). Section 55A deals with the operation of State laws. Subsections 55A(5B) and (5C) currently provide for the duty, function or power that may be conferred on a Judge of the Federal Court or a Judge of the Federal Circuit Court by a law of a State. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsections 55A(5B) and (5C).

Item 80 - Paragraphs 55A(8)(c) and (9)(c)

611.           Item 80 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in paragraphs 55A(8)(c) and (9)(c). Subsections 55A(8) and (9) provide for concurrent operation of State laws. Paragraph 55A(8)(c) currently provides that the Act does not intend to exclude or limit the operation of a State law that confers any duties, functions or powers on a Judge of the Federal Court or a Judge of the Federal Circuit Court. Paragraph 55A(9)(c) provides that the Act is not intended to prevent a Judge of the Federal Court or a Judge of the Federal Circuit Court from having concurrent duties, functions or powers under a law of a State. The amendments appropriately reflect the continuation of the Judges of the Federal Circuit Court as Judges of the FCFC (Division 2).

Item 81 - Subsection 55A(13)

612.           Item 81 inserts a definition of ‘Judge of the Federal Circuit and Family Court of Australia (Division 2)’ into subsection 55A(13).  Subsection 55A(13) provides definitions for the purposes of section 55A. The new definition provides that ‘Judge of the Federal Circuit and Family Court of Australia (Division 2) means a Judge of the Federal Circuit and Family Court of Australia (Division 2) in a personal capacity and not as a court or a member of a court’. The amendment appropriately reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2). Item 82 repeals the definition of ‘Judge of the Federal Circuit Court’.

Item 82 - Subsection 55A(13) (definition of Judge of the Federal Circuit Court )

613.           Item 82 repeals the definition of ‘Judge of the Federal Circuit Court’ in subsection 55A(13). Subsection 55A(13) provides definitions for the purposes of section 55A. The definition currently provides that ‘Judge of the Federal Circuit Court means a Judge of the Federal Circuit Court in a personal capacity and not as a court or a member of a court’. The definition is no longer required as Judges of the Federal Circuit Court will continue as Judges of the ‘Federal Circuit and Family Court of Australia (Division 2)’. Item 81 inserts a definition of ‘Judge of the Federal Circuit and Family Court of Australia (Division 2)’.

Item 83 - Subsection 55C(2)

614.           Item 83 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 55C(2). Subsection 55C(2) currently provides that neither the Act or any other law of the Commonwealth imposes an obligation on a Judge of the Federal Court or a Judge of the Federal Circuit Court to perform duties relating to a relevant criminal activity if it is not a federal criminal activity or the imposition of the obligation is in contravention of a constitutional doctrine. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 55C(2).

Item 84 - Subsection 55C(3)

615.           Item 84 inserts a new definition of ‘Judge of the Federal Circuit and Family Court of Australia (Division 2)’ in subsection 55C(3). Subsection 55C(3) provides definitions for the purposes of section 55C. The new definition provides that ‘Judge of the Federal Circuit and Family Court of Australia (Division 2) means a Judge of the FCFC (Division 2) in a personal capacity and not as a court or member of a court’. The amendment appropriately reflects the continuation of Judges of the Federal Circuit Court as the Judges of FCFC (Division 2). Item 85 repeals the definition of ‘Judge of the Federal Circuit Court’.

Item 85 - Subsection 55C(3) (definition of Judge of the Federal Circuit Court )

616.           Item 85 repeals the definition of ‘Judge of the Federal Circuit Court’ in subsection 55C(3). Subsection 55C(3) provides definitions for the purposes of section 55C. The definition currently provides that ‘Judge of the Federal Circuit Court means a Judge of the Federal Circuit Court in a personal capacity and not as a court or a member of a court’. The definition is no longer required as Judges of the Federal Circuit Court will continue as Judges of the ‘Federal Circuit and Family Court of Australia (Division 2)’. Item 84 inserts a definition of ‘Judge of the Federal Circuit and Family Court of Australia (Division 2)’.

Item 86 - Section 57

617.           Item 86 updates the reference to the first occurring ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in section 57. Section 57 applies section 11 of the Administrative Decisions (Judicial Review) Act 1977 as if subsections 11(1) to (5) of that Act were replaced with the text provided in section 57 of the Australian Crime Commission Act 2002 . The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of section 57.

Item 87 - Section 57

618.           Item 87 updates the reference to ‘Federal Circuit Court-Federal Circuit Court Rules’ to be ‘Federal Circuit and Family Court of Australia (Division 2) -Federal Circuit and Family Court of Australia (Division 2) Rules’ in section 57. Section 57 applies section 11 of the Administrative Decisions (Judicial Review) Act 1977 as if subsections 11(1) to (5) of that Act were replaced with the text provided in section 57 of the Australian Crime Commission Act 2002 . The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and the applicable Rules for that Court.

Item 88 - Subparagraph 61(2)(g)(ii)

619.           Item 88 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subparagraph 61(2)(g)(ii). Subparagraph 61(2)(g)(ii) currently provides that the annual report by the Chair of the Board shall include particulars of the number and results of applications made to the Federal Court or the Federal Circuit Court under the Administrative Decisions (Judicial Review) Act 1977 for orders of review in respect of matters arising under the Act. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subparagraph 61(2)(g)(ii).

Item 89 - Schedule 1

620.           Item 79 updates the reference to the ‘ Federal Circuit Court of Australia Act 1999 , Part 6A’ to be ‘ Federal Circuit and Family Court of Australia Act 2018 , Part 7 of Chapter 4’ in Schedule 1. Schedule 1 lists prescribed provisions for the purpose of section 20. This amendment updates the legislative reference to reflect the change in law and does not affect the intent of Schedule 1.

 

Australian Energy Market Act 2004

Item 90 - Subsection 11(1) (definition of magistrate )

621.           Item 90 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 11(1) of the Australian Energy Market Act 2004 . Section 11 exists to assist with the interpretation of some expressions in the National Electricity (Commonwealth) Law and Regulations. Subsection 11(1) currently defines ‘magistrate’ to mean ‘a Judge of the Federal Circuit Court of Australia’. The amendment appropriately reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not substantively alter the meaning of ‘magistrate’ in subsection 11(1).

Item 91 - Subsection 11H(1) (definition of magistrate )

622.           Item 91 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 11H(1). Section 11H exists to assist with interpretation of some expressions in the National Gas (Commonwealth) Law and Regulations. Subsection 11H(1) currently defines ‘magistrate’ to mean ‘a Judge of the Federal Circuit Court of Australia’. The amendment appropriately reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not substantively alter the meaning of ‘magistrate’ in subsection 11H(1).

 

Australian Human Rights Commission Act 1986

Item 92 - Subsection 3(1) (definition of Federal Circuit Court )

623.           Item 92 repeals the definition of ‘Federal Circuit Court’ in subsection 3(1) of the Australian Human Rights Commission Act 1986 . Subsection 3 provides definitions for the purposes of the Act. The definition currently provides that ‘Federal Circuit Court means the Federal Circuit Court of Australia’. The definition is no longer required as the Federal Circuit Court will be continued as the FCFC (Division 2). Where references in the Act are made to the FCFC (Division 2), the reference is provided in full.

Items 93 and 94 - Paragraph 46PH(1)(h) and subsections 46PH(1C), (2A) and (4)

624.           Items 93 and 94 update references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in paragraph 46PH(1)(h) and subsections 46PH (1C), (2A) and (4). Section 46PH enables the President of the AHRC to terminate a complaint. Paragraph 46PH(1)(h) currently provides that the President may terminate a complaint if satisfied that the subject matter of the complaint involves an issue of public importance that should be considered by the Federal Court or the Federal Circuit Court. Subsection 46PH(1C) provides that the President must terminate a complaint if satisfied that there would be no reasonable prospect that the Federal Court or the Federal Circuit Court would find unlawful discrimination. If the President terminates a complaint, subsection 46PH(2A) provides that a notice notifying the complainants must explain that the Federal Court and the Federal Circuit Court can award costs in proceedings. Subsection 46PH(4) provides that the President may revoke the termination of a complaint but not after an application is made to the Federal Court or the Federal Circuit Court. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of paragraph 46PH(1)(h), and subsections 46PH(1C), (2A) and (4).

Item 95 - Division 2 of Part IIB (heading)

625.           Item 95 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to Division 2 of Part IIB. The heading now reads ‘Proceedings in the Federal Court and the Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 96 - Subsection 46PO(1)

626.           Item 96 updates the reference to the ‘Federal Circuit Court’ to be the ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 46PO(1). Subsection 46PO(1) currently provides that if a complaint is terminated by the President, an affected person may make an application to the Federal Court or the Federal Circuit Court in relation to the complaint alleging unlawful discrimination. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 46PO(1).

Item 97 - Subsection 46PO(4) (note 2)

627.           Item 97 repeals note 2 to subsection 46PO(4) and replaces it with the words provided. Note 2 currently refers to the Federal Circuit Court’s ability to award costs in proceedings under section 79 of the Federal Circuit Court Act. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and updates the legislative reference to reflect the change in law and does not affect the intent of note 2 to subsection 46PO(4).

Item 98 - Subsection 46PP(1)

628.           Item 98 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 46PP(1). Subsection 46PP(1) currently provides the Federal Court and the Federal Circuit Court with the power, at any time after a complaint is lodged with the AHRC, to grant an interim injunction to maintain the status quo or to maintain the rights or any complainant, respondent or affected person. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 46PP(1).

Item 99 - Section 46PR

629.           Item 99 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’. Section 46PR provides that the Federal Court and the Federal Circuit Court are not bound by technicalities in proceedings under Division 2 of Part IIB of the Act. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of section 46PR.

Item 100 - Subsection 46PS(1)

630.           Item 100 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 46PS(1). Subsection 46PS(1) currently provides that the President may provide the Federal Court or the Federal Circuit Court with a written report on a complaint that has been terminated. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 46PS(1).

Item 101 - Section 46PSA (note 2)

631.           Item 101 repeals note 2 to section 46PSA and replaces it with the words provided. Note 2 currently refers to the Federal Circuit Court’s ability to award costs in proceedings under section 79 of the Federal Circuit Court Act . The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2). It updates the legislative reference to reflect the change in law and does not affect the intent of note 2 to section 46PSA.

Items 102 and 103 - Paragraphs 46PU(1)(a) and (b), and subsection 46PV(1)

632.           Items 102 and 103 update references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsections 46PU(1) and 46PV(1). Section 46PU currently provides that a person may make an application to the Attorney-General for the provision of assistance in respect of proceedings in the Federal Court or the Federal Circuit Court under Division 2 of Part IIB of the Act. Paragraph 46PU(1)(a) provides that a person who has commenced or proposes to commence proceedings in the Federal Court or the Federal Circuit Court under Division 2 of Part IIB of the Act may apply for assistance. Paragraph 46PU(1)(b) currently provides that a respondent may apply for assistance. Subsection 46PV(1) currently provides that a special-purpose Commissioner may be amicus curiae to assist the Federal Court and the Federal Circuit Court in certain proceedings. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of paragraphs 46PU(1)(a) and (b), and subsection 46PV(1).

Item 104 - Section 49B (heading)

633.           Item 104 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to section 49B. The heading now reads ‘Jurisdiction of Federal Court and Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 105 - Section 49B

634.           Item 105 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in section 49B. Section 49B currently provides for the Federal Court and the Federal Circuit Court to have concurrent jurisdiction with respect to civil matters arising under Part IIB or IIC of the Act. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of section 49B.

Item 106 - Subsection 49C(2)

635.           Item 106 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 49C(2). Section 49C provides for Commonwealth compensation for acquisition of property from a person otherwise than on just terms. Subsection 49C(2) currently provides that the Federal Court and the Federal Circuit Court have concurrent jurisdiction to deal with these matters. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 49C(2).

 

Australian Jobs Act 2013

Item 107 - Section 5 (paragraph (b) of the definition of prescribed court )

636.           Item 107 repeals paragraph (b) of the definition of ‘prescribed court’ and replaces it with new paragraph (b), which refers to ‘the Federal Circuit and Family Court of Australia (Division 2)’ in section 5 of the Australian Jobs Act 2013 . Section 5 provides definitions to assist in interpreting the Act. Paragraph (b) of the definition of ‘prescribed court’ currently provides for the Federal Circuit Court to be a prescribed court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the meaning of ‘prescribed court’ in section 5.

 

Australian Passports Act 2005

Item 108 - Subsection 6(2)

637.           Item 108 updates the reference to the ‘Family Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in subsection 6(2) of the Australian Passports Act 2005 . Subsection 6(2) currently provides that for the purposes of the Act, if an overseas child order within the meaning of the Family Law Act is registered, the order has the same force and effect as if it were an order of the Family Court of Australia made in accordance with that Act. The amendment appropriately reflects the continuation of the Family Court of Australia as the FCFC (Division 1) and does not substantively alter the operation of subsection 6(2).

 

Australian Securities and Investments Commission Act 2001

Item 109 - Subsection 12BA(1) (definition of Family Court Judge )

638.           Item 109 repeals the definition of a Family Court Judge.  Subsection 12BA(1) provides definitions that apply in Division 2 of Part 2 of the Australian Securities and Investments Commission Act 2001 . The definition of Family Court Judge is no longer appropriate, and the references to a Family Court Judge are replaced by item 115 with references to a Judge of the FCFC (Division 1) to reflect the continuation of the Judges of the Family Court as Judges of the FCFC (Division 1).

Item 110 - Section 12GL (heading)

639.           Item 110 updates the reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in the heading to section 12GL.  The heading now reads ‘Transfer of certain proceedings to the FCFC (Division 1). The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1).

Items 111 to 114 - Subsections 12GL(1) and (3), Paragraphs 12GL(3)(a), (b), (c), (d) and (e), and Subparagraph 12GL(3)(f)(i)

640.           Items 111 to 114 update the references to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in subsections 12GL(1) and (3), paragraphs 12GL(3)(a), (b), (c), (d), (e), and subparagraph 12GL(3)(f)(i).  Section 12GL provides for proceedings that are on foot in the Federal Court to be transferred to the Family Court.  The amendments appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the operation of section 12GL.

Item 115 - Subparagraphs 12GL(3)(f)(ii) and (iii)

641.           Item 115 updates the reference to ‘Family Court Judge’ to be a ‘Judge of the Federal Circuit and Family Court of Australia (Division 1)’ in subparagraphs 12GL(3)(f)(ii) and (iii).  Subparagraph 12GL(f)(ii) currently provides that, for the purposes of paragraph (f), a reference to a Judge of the Federal Court includes a reference to a Family Court Judge. Subparagraph 12GL(f) (iii) provides that a reference to the expression ‘the Court or a Judge’ when used in relation to the Federal Court includes a reference to a Family Court Judge sitting in Chambers. The amendments appropriately reflect the continuation of Judges of the Family Court as Judges of the FCFC (Division 1) and do not substantively alter the operation of subparagraphs 12GL(3)(f)(ii) and (iii).

Items 116 and 117 - Subparagraph 12GL(3)(f)(iv) and Subsections 12GL(4) and (5)

642.           Items 116 and 117 update the references to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in subparagraph 12GL(3)(f)(iv) and subsections 12GL(4) and (5).  Section 12GL provides for proceedings that are on foot in the Federal Court to be transferred to the Family Court.  The amendments appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the operation of section 12GL.

 

Australian Security Intelligence Organisation Act 1979

Item 118 - Section 34A (paragraph (c) of the definition of superior court )

643.           Item 118 repeals paragraph (c) of the definition of ‘superior court’ and replaces it with new paragraph (c), which refers to ‘the Federal Circuit and Family Court of Australia (Division 1)’ in section 34A of the Australian Security Intelligence Organisation Act 1979 . Section 34A provides definitions to assist in interpreting Division 3 of Part III of the Act. Paragraph (c) of the definition of ‘superior court’ currently provides that the Family Court of Australia or of a State is a superior court. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and, combined with item 119, does not affect the meaning of ‘superior court’ in section 34A.

Item 119 - Section 34A (after paragraph (d) of the definition of superior court )

644.           Item 119 inserts new paragraph (da) in the definition of ‘superior court’ in section 34A. Section 34A provides definitions to assist in interpreting Division 3 of Part III of the Act. New paragraph (da) reads ‘(da) a State Family Court (being a court to which section 41 of the Family Law Act applies)’. The amendment clarifies that a State Family Court is one established under section 41 of the Family Law Act. The amendment does not substantively affect the meaning of ‘superior court’ in section 34A.

 

Australian Sports Anti-Doping Authority Act 2006

Item 120 - Paragraph 72(3)(b)

645.           Item 120 repeals paragraph 72(3)(b) of the Australian Sports Anti-Doping Authority Act 2006 and replaces it with new paragraph (b), which refers to ‘the Federal Circuit and Family Court of Australia (Division 2)’. Paragraph 72(3)(b) was inserted by Schedule 2 to the Regulatory Powers (Standardisation Reform) Act 2017 , and currently lists the Federal Circuit Court as a relevant court in relation to the civil penalty provisions of the Australian Sports Anti-Doping Authority Act 2006 . The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of paragraph 72(3)(b).

 

Bankruptcy Act 1966

Item 121 - Subsection 5(1)

646.           Item 121 repeals the definitions of ‘Family Court Judge’ and ‘Federal Circuit Court’ in subsection 5(1) of the Bankruptcy Act 1966 . Subsection 5(1) provides definitions to assist in interpreting the Act. These definitions are no longer required as Family Court Judges will be continued as Judges of the FCFC (Division 1), and the Federal Circuit Court will be continued as the FCFC (Division 2). Where references in the Act are made to the Judges of the FCFC (Division 1) or to the FCFC (Division 2), the reference is provided in full.

Item 122 - Subsection 5(1) (paragraph (b) of the definition of Registrar )

647.           Item 122 repeals paragraph (b) of the definition of ‘Registrar’ in subsection 5(1) and replaces it with new paragraph (b), which refers to ‘a Registrar of the Federal Circuit and Family Court of Australia (Division 2)’. Subsection 5(1) provides for definitions to assist in interpreting the Act. Under the reforms, the Chief Executive Officer and Principal Registrar position of the Federal Circuit Court will be removed, but Registrars of the Federal Circuit Court will be retained. New paragraph (b) provides for this change and reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 123 - Subsection 5(1) (definition of the Family Court )

648.           Item 123 repeals the definition of ‘the Family Court’ in subsection 5(1). Subsection 5(1) provides for definitions for the purposes of the Act. The definition is no longer required as the Family Court will be continued as the FCFC (Division 1). Where references in the Act are made to the FCFC (Division 1), the reference is provided in full.

Item 124 - Subsection 27(1)

649.           Item 124 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 27(1). Subsection 27(1) currently provides for the Federal Court and the Federal Circuit Court to have concurrent jurisdiction in bankruptcy. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 27(1).

Item 125 - Paragraph 27(1)(b)

650.           Item 125 updates the reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ of paragraph 27(1)(b). Paragraph 27(1)(b) currently provides that the Family Court has jurisdiction to hear bankruptcy matters under section 35 or 35A of the Act. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of paragraph 27(1)(b).

Item 126 - Section 35 (heading)

651.           Item 126 updates the reference to the ‘Family Court’s jurisdiction’ to be ‘Jurisdiction of the Federal Circuit and Family Court of Australia (Division 1)’ in the heading to section 35. The heading now reads ‘Jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) in bankruptcy where trustee is a party to property settlement or spousal maintenance proceedings etc.’. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1).

Item 127 - Subsections 35(1) and (1A)

652.           Item 127 updates references to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in subsections 35(1) and (1A). Subsections 35(1) and (1A) currently give the Family Court jurisdiction to hear bankruptcy matters in the listed circumstances. The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the operation of subsections 35(1) and (1A).

Item 128 - Subsection 35(2)

653.           Item 128 updates the reference to ‘Family Court’s jurisdiction’ to be ‘jurisdiction of the Federal Circuit and Family Court of Australia (Division 1)’ in subsection 35(2). Subsection 35(2) currently provides that the Family Court’s jurisdiction to hear bankruptcy matters under section 35A of the Act is not limited by subsections 35(1) and (1A). The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of subsection 35(2).

Item 129 - Section 35A (heading)

654.           Item 129 updates the reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in the heading to section 35A. The heading now reads ‘Transfer of proceedings to Federal Circuit and Family Court of Australia (Division 1)’. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1). 

Item 130 - Subsection 35A(1)

655.           Item 130 repeals subsection 35A(1) and replaces it with a new subsection. Section 35A currently provides for transfer of proceedings to the Family Court. The amendment provides that the Federal Court may transfer proceedings to the FCFC (Division 1) on the application of a party or of its own motion. The new subsection appropriately reflects the continuation of the Family Court as the FCFC (Division 1).

Item 131 - Subsection 35A(2)

656.           Item 131 repeals subsection 35A(2). Section 35A(2) currently provides that where a proceeding is pending in the Federal Court at the commencement of the section shall not be transferred to the Family Court unless the parties to the proceeding consent to the transfer. The section commenced operation in 1988, and there should be no proceedings still pending in the Federal Court from that time. As such, the provision is no longer required.

Item 132 - Subsection 35A(2A)

657.           Item 132 repeals subsection 35A(2A) and replaces it with a new subsection. Subsection 35A(2A) currently provides for the Federal Circuit Court to transfer a proceedings to the Family Court. The main change made by the new subsection is that it updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ and the reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and the Family Court as the FCFC (Division 1) and does not substantively alter the operation of subsection 35A(2A).

Item 133 - Subsection 35A(3)

658.            Item 133 updates the first reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in subsection 35A(3). See item 134 for updates to following references to the Family Court. Subsection 35A(3) currently deals with the Family Court’s jurisdiction and powers in relation to proceedings transferred to it. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of subsection 35A(3).

Item 134 - Paragraphs 35A(3)(a) to (e)

659.           Item 134 updates references to the ‘Family Court’ to be ‘the Court’ (which means the FCFC (Division 1)) in paragraphs 35A(3)(a) to (e). See item 133 for further guidance on the initial reference to the FCFC (Division 1). Subsequent references have been shortened to ‘the Court’ to save repeating the full title of the Court. Subsection 35A(3) currently deals with the Family Court’s jurisdiction and powers in relation to proceedings transferred to it. The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the operation of paragraphs 35A(3)(a) to (e).

Item 135 - Subparagraph 35A(3)(f)(i)

660.           Item 135 updates the reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in subparagraph 35A(3)(f)(i). Subparagraph 35A(3)(f)(i) currently provides that, for the purposes of paragraph (f), a reference to the Federal Court includes a reference to the Family Court. The name of the Court is provided in full to ensure there is no confusion with the Federal Court. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of subparagraph 35A(3)(f)(i).

Item 136 - Subparagraphs 35A(3)(f)(ii) and (iii)

661.           Item 136 updates reference to ‘Family Court Judge’ to be ‘Judge of the Federal Circuit and Family Court of Australia (Division 1)’ in subparagraphs 35A(3)(f)(ii) and (iii). Subparagraph 35A(3)(f)(ii) currently provides that, for the purposes of paragraph (f), a reference to a Judge of the Federal Court includes a reference to a Family Court Judge. Subparagraph 35A(3)(f)(iii) provides that a reference to the expression ‘the Court or a Judge’ when used in relation to the Federal Court includes a reference to a Family Court Judge sitting in Chambers. The amendments appropriately reflect the continuation of Judges of the Family Court as Judges of the FCFC (Division 1) and do not substantively alter the operation of subparagraphs 35A(3)(f)(ii) and (iii).

Item 137 - Subparagraph 35A(3)(f)(iv)

662.           Item 137 updates reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in subparagraph 35A(3)(f)(iv). Subparagraph 35A(3)(f)(iv) currently provides that a reference to a Registrar includes a reference to a Registrar of the Family Court. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of subparagraph 35A(3)(f)(iv).

Item 138 - Subsection 35A(3) (note)

663.           Item 138 repeals the note to subsection 35A(3) and replaces it with a new note to subsection 35A(3). The note currently outlines the Rules of Court made under the Family Law Act apply in relation to proceedings transferred to the Family Court under section 35A. The new note provides that the Rules of Court that apply are those made under Chapter 3 of the Federal Circuit and Family Court of Australia Act 2018. The new note refers to the appropriate Rules of Court that will apply in the FCFC (Division 1) and does not affect the intent of the note to subsection 35A(3).

Item 139 - Subsection 35A(4)

664.           Item 139 updates the reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in subsection 35A(4). Subsection 35A(4) currently provides for the Family Court to give directions and make orders to resolve difficulties. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of the subsection 35A(4).

Item 140 - Subsection 35A(5)

665.           Item 140 repeals subsection 35A(5) and replaces it with a new subsection. Subsection 35A(5) currently provides that an appeal does not lie from a decision of the Federal Court or Federal Circuit Court to transfer a proceeding to the Family Court. The substitution updates reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ and reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’, appropriately reflecting the continuation of the Courts. This amendment will not substantively alter the operation of subsection 35A(5).

Item 141 - Subsection 35B(1)

666.           Item 141 updates the reference to the ‘Family Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in subsection 35B(1). The updated reference appropriately reflects the continuation of the Family Court as the FCFC (Division 1).

Item 142 - Paragraph 35B(2)(a)

667.           Item 142 updates the reference to ‘Family Court Judge’ to be ‘Judge of the Federal Circuit and Family Court of Australia (Division 1)’ in paragraph 35B(2)(a). Paragraph 35B(2)(a) currently provides that references to ‘a Family Court judge’ in subparagraphs 35A(3)(f)(ii) or (iii) be read as reference to ‘a judge of the Family Court of Western Australia’. The amendment appropriately reflects the continuation of Judges of the Family Court as Judges of the FCFC (Division 1) and does not substantively alter the operation of paragraph 35B(2)(a).

Item 143 - Paragraph 35B(2)(b)

668.           Item 143 updates the reference to ‘Registrar of the Family Court’ to be ‘Registrar of the Federal Circuit and Family Court of Australia (Division 1)’ in paragraph 35B(2)(b). Paragraph 35B(2)(b) currently provides that references to ‘a Registrar of the Family Court’ in subparagraphs 35A(3)(f)(iv) be read as reference to ‘a registrar of the Family Court of Western Australia’. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of paragraph 35B(2)(b).

 

Biosecurity Act 2015

Item 144 - Section 9 (definition of Federal Circuit Court )

669.           Item 144 repeals the definition of ‘Federal Circuit Court’ in section 9 of the Biosecurity Act 2015 . Section 9 provides for definitions to assist in interpreting the Act. The definition is no longer required as the Federal Circuit Court will be continued as the FCFC (Division 2). Where references in the Act are made to the FCFC (Division 2), the reference is provided in full.

Item 145 - Section 9 (paragraph (c) of the definition of issuing officer )

670.           Item 145 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in section 9. Paragraph (c) of the definition of ‘issuing officer’ in section 9 currently provides that a Judge of the Federal Court or the Federal Circuit Court is an issuing officer. The amendment appropriately reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not substantively alter the meaning of ‘issuing officer’ in section 9.

Item 146 - Section 9 (paragraph (b) of the definition of relevant court )

671.           Item 146 repeals paragraph (b) of the definition of ‘relevant court’ in section 9 and replaces it with new paragraph (b), which refers to ‘the Federal Circuit and Family Court of Australia (Division 2)’. Paragraph (b) of the definition of ‘relevant court’ currently provides that the Federal Circuit Court is a relevant court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the meaning of ‘relevant court’ in section 9.

Item 147 - Section 486

672.           Item 147 omits the first paragraph of section 486 and replaces it with a new paragraph. Section 486 provides a simplified outline of Part 3 of Chapter 9 of the Act. It explains who may issue a warrant to authorise entry to premises, taking possession of premises or a conveyance, how they may be issued and how to execute them in relation to an aircraft or vessel. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not alter the intent of section 486.

 

Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017

Item 148 - Subparagraph 41(7)(b)(ii) of Schedule 6

673.           Item 148 repeals subparagraph 41(7)(b)(ii) of Schedule 6 of the Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017 and replaces it with new subparagraph (ii), which refers to ‘the Federal Circuit and Family Court of Australia (Division 2)’. Subparagraph 41(7)(b)(ii) of Schedule 6 currently provides that the Federal Circuit Court is a court in which the Secretary, on behalf of the Commonwealth, may recover an amount payable by a company to the Commonwealth. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subparagraph 41(7)(b)(ii).

 

Broadcasting Services Act 1992

Item 149 - Subsection 6(1) (definition of Federal Circuit Court )

674.           Item 149 repeals the definition of ‘Federal Circuit Court’ in subsection 6(1) of the Broadcasting Services Act 1992 . Subsection 6(1) provides for definitions to assist in interpreting the Act. The definition is no longer required as the Federal Circuit Court will be continued as the FCFC (Division 2). Where references in the Act are made to the FCFC (Division 2), the reference is provided in full.

Item 150 - Paragraph 121FS(1)(b)

675.           Item 150 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in paragraph 121FS(1)(b). Paragraph 121FS(1)(b) currently provides that a person who is entitled to make an application to the Federal Court or the Federal Circuit Court under section 5 of the Administrative Decisions (Judicial Review) Act 1977 in relation to a decision made under subsection 121FD(1) or 121FL(3) or (5), that person may request a written statement from the Minister for Foreign Affairs setting out the reasons for the decision. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of paragraph 121FS(1)(b).

Item 151 - Subparagraphs 205AD(b)(ii) and 205AF(5)(b)(ii)

676.           Item 151 repeals subparagraphs 205AD(b)(ii) and 205AF(5)(b)(ii) and replaces them with new subparagraphs (ii), which refer to ‘the Federal Circuit and Family Court of Australia (Division 2)’. Subparagraph 205AD(b)(ii) currently provides that the Australian Communications and Media Authority (ACMA), on behalf of the Commonwealth, may recover interim tax in the Federal Circuit Court. Subparagraph 205AF(5)(b)(ii) provides that the ACMA, on behalf of the Commonwealth, may recover a late payment penalty in the Federal Circuit Court. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subparagraphs 205AD(b)(ii) and 205AF(5)(b)(ii).

 

Budget Savings (Omnibus) Act 2016

Item 152 - Subitem 33(2) of Schedule 7

677.           Item 152 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’in subitem 33(2) of Schedule 7 of the Budget Savings (Omnibus) Act 2016 . Schedule 7 provides for the abolishment of the National Health Performance Authority. Item 33 provides for Commonwealth compensation for acquisition of property from a person otherwise than on just terms. Subitem 33(2) currently provides that if the person and the Commonwealth do not agree on the amount of compensation, the person may institute proceedings in the Federal Court and the Federal Circuit Court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subitem 33(2) of Schedule 7.

 

Building and Construction Industry (Improving Productivity) Act 2016

Item 153 - Section 5 (definition of Federal Circuit Court )

678.           Item 153 repeals the definition of ‘Federal Circuit Court’ in section 5 of the Building and Construction Industry (Improving Productivity) Act 2016 . Section 5 provides definitions to assist in interpreting the Act. The definition is no longer required as the Federal Circuit Court will be continued as the FCFC (Division 2). Where references in the Act are made to the FCFC (Division 2), the reference is provided in full.

Item 154 - Section 5 (paragraph (b) of the definition of relevant court )

679.           Item 154 repeals paragraph (b) of the definition of ‘relevant court’ in section 5 and replaces it with new paragraph (b), which refers to ‘the Federal Circuit and Family Court of Australia (Division 2)’. Paragraph (b) of the definition of ‘relevant court’ currently provides that the Federal Circuit Court is a relevant court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the meaning of ‘relevant court’ in section 5.

Item 155 - Paragraphs 114(1)(e), (f) and (g)

680.           Item 155 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 114(1). Subsection 114(1) outlines situations in which the jurisdiction of the Federal Court is to be exercised in the Fair Work Division of the Federal Court. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of paragraphs 114(1)(e), (f) and (g).

 

Building Energy Efficiency Disclosure Act 2010

Item 156 - Section 3 (paragraph (b) of the definition of Court )

681.           Item 156 repeals paragraph (b) of the definition of ‘Court’ and replaces it with new paragraph (b), which refers to ‘the Federal Circuit and Family Court of Australia (Division 2)’ in section 3 of the Building Energy Efficiency Disclosure Act 2010. Paragraph (b) of the definition of ‘Court’ currently provides that the Federal Circuit Court is a Court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the meaning of ‘Court’ in section 3.

Item 157 - Paragraph 51(5)(b)

682.           Item 140 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in paragraph 51(5)(b). Paragraph 51(5)(b) is to be inserted in the Act by item 8 of Schedule 3 to the Regulatory Powers (Standardisation Reform) Act 2017 . Paragraph 51(5)(b) currently provides that the Federal Circuit Court is a relevant court in relation to the civil penalty provisions of the Building Energy Efficiency Disclosure Act 2010 . The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of paragraph 51(5)(b).

 

Child Support (Assessment) Act 1989

Items 158 to 160 - Subsection 5(1)

683.           Items 158 and 159 amend subsection 5(1) of the Child Support (Assessment) Act 1989 by inserting new definitions of:

·                      ‘Federal Circuit and Family Court of Australia’

·                      ‘Federal Circuit and Family Court of Australia (Division 1) Rules’

·                      ‘Federal Court’

·                      ‘Federal Court Rules’

·                      ‘Related Federal Circuit and Family Court of Australia (Division 2) Rules’.

684.           Item 160 amends subsection 5(1) by repealing the definition of related Federal Circuit Court Rules.

685.           Subsection 5(1) of the Act provides the definitions applicable for the interpretation of the Act. These amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1), the continuation of the Federal Circuit Court as the FCFC (Division 2) , and the conferral of family law and child support jurisdiction upon the Family Law Appeal Division of the Federal Court .

Item 161 - Subsection 17(1)

686.           Item 161 amends subsection 17(1) of the Act by omitting the first occurrence of ‘Family Court’ and substituting ‘Federal Circuit and Family Court of Australia’. Subsection 17(1) provides that that a parent of an eligible child (or eligible carer thereof), may seek the assistance of the counselling facilities of the Family Court or a Family Court of a State. This amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not alter the operation of the subsection.

Item 162 - Subsection 17(2)

687.           Item 162 amends subsection 17(2) by repealing the subsection and substituting that an appropriate officer of the FCFC or the Family Court of the State must, as far as practicable, make the counselling facilities available. Subsection 17(2) currently provides that the Principal Director of Court Counselling of the Family Court or an appropriate officer of the Family of the Family Court of the State must, as far as practicable, make the counselling facilities available. This amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1), as well as the streamlined corporate management arrangements between the two divisions of the FCFC. The terminology of an ‘appropriate officer’ of the FCFC allows greater flexibility for the provision of appropriate counselling facilities.

Item 163 - Section 98X

688.           Item 163 amends section 98X by repealing the section and substituting that ‘Jurisdiction under this Act is conferred on the Family Law Appeal Division of the Federal Court, Federal Circuit and Family Court of Australia and certain State and Territory Courts’. Section 98X provides a simplified outline of Division 1 of Part 7 of the Act, which relates to the jurisdiction of courts review specified decisions. This amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1), the continuation of the Federal Circuit Court as the FCFC (Division 2) , and the conferral of family law jurisdiction upon the Family Law Appeal Division of the Federal Court.

Item 164 - Subsection 99(1)

689.           Item 164 amends subsection 99(1) by omitting ‘Family Court and the Federal Circuit Court of Australia’ and substituting ‘Family Law Appeal Division of the Federal Court, the Federal Circuit and Family Court of Australia’. Subsection 99(1) provides that jurisdiction is conferred by the Act on the Family Court, the Federal Circuit Court, the Supreme Court of the Northern Territory (as specified in that section), and each Family Court of a State. This amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1), the continuation of the Federal Circuit Court as the FCFC (Division 2) , and the conferral of family law and child support appellate jurisdiction upon the Family Law Appeal Division of the Federal Court.

Item 165 - At the end of section 99

690.           Item 165 adds a note at the end of section 99 directing readers to see sections 25 and 102 of the Federal Circuit and Family Court of Australia Act 2018, section 47A of the Family Law Act, and section 24 of the Federal Court Act , in respect of appeals against proceedings under the Child Support (Assessment) Act 1988. Sections 25 and 102 of the Federal Circuit and Family Court of Australia Act 2018 relate to appeals from courts of summary jurisdiction in relation to family law matters in Division 1 and Division 2 of the FCFC, respectively. Section 24 of the Federal Court Act relates to the appellate jurisdiction of that Court, as amended by this Act to reflect the conferral of family law and child support jurisdiction upon the Family Law Appeal Division. This amendment appropriately directs readers to the appropriate appeals provisions in the Federal Circuit and Family Court of Australia Act 2018 and Federal Court Act, rather than replicating those provisions in the Child Support (Assessment) Act 1989.

Item 166 - subsection 100(1)

691.           Item 166 amends subsection 100(1) by omitting the words ‘(other than Part X of that Act), the standard Rules of Court and the related Federal Circuit Court Rules’, and substituting ‘(other than Division 4 of Part V of that Act), the Federal Court Rules, the standard Rules of Court, the Federal Circuit and Family Court of Australia (Division 1) Rules and the related Federal Circuit and Family Court of Australia (Division 2) Rules’. Subsection 100(1) provides that the Family Law Act and various Court Rules apply to proceedings under the Child Support (Assessment) Act 1988 as if the proceedings were proceedings under Part VII of the Family Law Act (Children). This amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1), the continuation of the Federal Circuit Court as the FCFC (Division 2) , the conferral of the majority of the appellate family law and child support jurisdiction upon the Family Law Appeal Division of the Federal Court and the inclusion of appeal provisions relating to child support decisions in new Division 4 of Part V of the Family Law Act (see item 72 of Schedule 1 of this Bill).

Item 167 - Sections 101 to 105

692.           Item 167 repeals sections 101 to 105 Child Support (Assessment) Act 1988 and substitutes new sections 101 and 102.

693.            Current section 101 relates to the appellate jurisdiction of the Family Court under the Act. Section 102 relates to appeals to the Full Court of the Family Court from courts other than the Federal Circuit Court and the Magistrates Court of Western Australia. Section 102A relates to appeals to the Full Court of the Family Court from the Federal Circuit Court and the Magistrates Court of Western Australia. Section 103 relates to cases stated in relation to proceedings in which a decree in sections 102 and 102A -appeals to the Full Court of the Family Court - applies. Section 104 relates to appeals to the High Court and section 105 relates to appeals from courts of summary jurisdiction.

694.           New section 101 confers jurisdiction on the Family Court of a State to hear and determine appeals from a court of summary jurisdiction of the State (subsection 101(1)) and on the Supreme Court of the Northern Territory to hear and determine appeals from a court of summary jurisdiction in the Northern Territory (subsection 101(2)). The jurisdiction conferred by new section 101 is currently conferred by subsection 105(4) (which is being repealed by this item). 

695.           New subsection 102(1) provides that appeals do not lie from a decree of a court exercising original jurisdiction under the Child Support (Assessment) Act 1988 to the High Court, and includes a note that similar procedures are set out in sections 37 and 122 of the Federal Circuit and Family Court of Australia Act 2018 which apply to the FCFC (Division 1) and the FCFC (Division 2). New subsection 102(2) provides that if subsection 102(1) is inconsistent with section 73 of the Constitution (which outlines the appellate jurisdiction of the High Court), subsection 102(1) will have effect as though the words “, except by special leave of the High Court” were added to the end of subsection 102(1). This provision is consistent with the approach taken to High Court appeals from judgments of the FCFC (Division 1) and the FCFC (Division 2) (sections 37 and 122 of the Federal Circuit and Family Court of Australia Act 2018 ) and from decrees of state and territory courts exercising appellate jurisdiction (new section 47D of the Family Law Act at item 72 of Schedule 1 of this Bill). This ensures a consistent approach across all courts exercising family law and child support jurisdiction (that is, only to permit an appeal to the High Court with special leave if the provision would otherwise be unconstitutional).

696.           The repeal of section 101 to 105 is considered appropriate given that the relevant appeal provisions are provided for (with the exception of that provided for by new section 101) in sections 25 and 102 of the Federal Circuit and Family Court of Australia Act 2018, section 47A and 47B of the Family Law Act and section 24 of the Federal Court Act (consistently with the note at item 165, above). It would be unnecessary to duplicate these provisions in the Child Support (Assessment) Act 1989 .

Item 168 - Paragraph 144(a)

697.           Item 168 amends paragraph 144(a) by omitting the reference to ‘a Full Court of the Family Court’ and substituting ‘the Family Law Appeal Division of the Federal Court or the Federal Circuit and Family Court of Australia’. Paragraph 144(a) provides that a decision of a court becomes final if and when it is not a decision of the Full Court of the Family Court, and an application for leave to appeal against the decision is not made within the requisite period for making such an application. This amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1), the Federal Circuit Court as the FCFC (Division 2) and the conferral of family law appellate jurisdiction upon the Family Law Appeal Division of the Federal Court, instead of on the FCFC (Division 1).

Item 169 - After paragraph 144(a)

698.           Item 169 inserts new paragraph 144(aa) after amended paragraph 144(a) (item 168 above refers). New paragraph 144(aa) would provide that if the decision is one of the FCFC and an application is not made for leave to appeal to the Family Law Appeal Division of the Federal Court within the request period, the decision becomes final at the end of that period. This amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1), the Federal Circuit Court as the FCFC (Division 2), and the conferral of family law appellate jurisdiction upon the Family Law Appeal Division of the Federal Court, instead of on the FCFC (Division 1).

Item 170 - Paragraph 144(b)

699.           Item 170 amends paragraph 144(b) by omitting ‘a Full Court of the Family Court’ and substituting ‘the Family Law Appeal Division of the Federal Court’. Paragraph 144(b) currently provides that a decision of a court becomes final if and when it is a decision of the Full Court of the Family Court, and an application for special leave to appeal to the High Court against the decision is not made within 30 days.  This amendment appropriately reflects the conferral of family law (appeals) jurisdiction upon the Family Law Appeal Division of the Federal Court, instead of on the FCFC (Division 1).

 

Child Support (Registration and Collection) Act 1988

Items 171 to 175 - Subsection 4(1)

700.           Items 172 and 174 amend subsection 4(1) of the Child Support (Registration and Collection) Act 1988 by inserting new definitions of:

·                      ‘Federal Circuit and Family Court of Australia’

·                      ‘Federal Circuit and Family Court of Australia (Division 1) Rules’

·                      ‘Federal Court’

·                      ‘Federal Court Rules’

·                      ‘Related Federal Circuit and Family Court of Australia (Division 2) Rules’.

701.           Items 171, 173 and 175 amend subsection 4(1) by repealing the definitions of ‘Family Court’, ‘Family Law Magistrate of Western Australia’, ‘Full Court’, ‘Judge’, and ‘related Federal Circuit Court Rules’.

702.           Subsection 4(1) of the Act provides the definitions applicable for the interpretation of the Act. These amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1), the continuation of the Federal Circuit Court as the FCFC (Division 2) , and the conferral of family law jurisdiction upon the Family Law Appeal Division of the Federal Court.

Item 176 - Subsection 72Q(1)

703.           Item 176 amends subsection 72Q(1) of the Act by omitting ‘Federal Circuit Court’ and substituting ‘Federal Circuit and Family Court of Australia (Division 2)’. Subsection 72Q(1) provides that a person aggrieved by the making of a departure prohibition order may appeal to the listed courts against the making of the order This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not alter the operation of the subsection.

Item 177 - Section 103ZC

704.           Item 177 amends section 103ZC by repealing the section and substituting that ‘Jurisdiction under this Act is conferred on the Family Law Appeal Division of the Federal Court, Federal Circuit and Family Court of Australia and certain State and Territory Courts’. Section 103ZC provides a simplified outline of Division 2 of Part VIII of the Act, which relates to the jurisdiction of courts to review certain decisions. This amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1), the continuation of the Federal Circuit Court as the FCFC (Division 2) , and the conferral of family law jurisdiction upon the Family Law Appeal Division of the Federal Court.

Item 178 - Subsection 104(1)

705.           Item 178 amends subsection 104(1) by omitting ‘Family Court and the Federal Circuit Court of Australia’ and substituting ‘Family Law Appeal Division of the Federal Court, the Federal Circuit and Family Court of Australia’. Subsection 104(1) provides that jurisdiction is conferred by the Act on the Family Court, the Federal Circuit Court, the Supreme Court of the Northern Territory (as specified in that section), and each Family Court of a State. This amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1), the continuation of the Federal Circuit Court as the FCFC (Division 2) , and the conferral of appellate family law and child support jurisdiction upon the Family Law Appeal Division of the Federal Court.

Item 179 - At the end of section 104

706.           Item 179 adds a note at the end of section 104 directing readers to see sections 25 and 102 of the Federal Circuit and Family Court of Australia Act 2018, section 47A of the Family Law Act, and section 24 of the Federal Court Act, in respect of appeals against proceedings under the Child Support (Registration and Collection) Act 1988. Sections 25 and 102 of the Federal Circuit and Family Court of Australia Act 2018 relate to appeals from courts of summary jurisdiction in relation to family law matters in Division 1 and Division 2 of the FCFC, respectively. Section 24 of the Federal Court Act relates to the appellate jurisdiction of that Court, as amended by this Act to reflect the conferral of appellate family law and child support jurisdiction upon the Family Law Appeal Division. This amendment appropriately directs readers to the appropriate appeals provisions in the Federal Circuit and Family Court of Australia Act 2018 and Federal Court Act, rather than replicating those provisions in the Child Support ( Registration and Collection ) Act 1988.

Item 180 - subsection 105(1)

707.           Item 180 amends subsection 105(1) by omitting the words ‘(other than Part X of that Act), the standard Rules of Court and the related Federal Circuit Court Rules’, and substituting ‘(other than Division 4 of Part V of that Act), the Federal Court Rules, the standard Rules of Court, the Federal Circuit and Family Court of Australia (Division 1) Rules and the related Federal Circuit and Family Court of Australia (Division 2) Rules’. Subsection 105(1) provides that the Family Law Act and various Court Rules apply to proceedings under the Child Support (Registration and Collection) Act 1988 as if the proceedings were proceedings under the Family Law Act. This amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1), the continuation of the Federal Circuit Court as the FCFC (Division 2) the conferral of the majority of the appellate family law and child support jurisdiction upon the Family Law Appeal Division of the Federal Court and the inclusion of appeal provisions relating to child support decisions in new Division 4 of Part V of the Family Law Act (see item 72 of Schedule 1 of this Bill).

Item 181 - Sections 106 to 110

708.           Item 181 repeals sections 106 to 110 of the Child Support (Registration and Collection) Act 1988 and substitutes new sections 106 and 107.

709.           Current section 106 relates to the appellate jurisdiction of the Family Court under the Act. Section 107 relates to appeals to the Full Court of the Family Court from courts other than the Federal Circuit Court and the Magistrates Court of Western Australia. Section 107A relates to appeals to the Full Court of the Family Court from the Federal Circuit Court and the Magistrates Court of Western Australia. Section 108 relates to cases stated in relation to proceedings in which a decree in sections 107 and 107A - appeals to the Full Court of the Family Court - applies. Section 109 relates to appeals to the High Court and section 110 relates to appeals from courts of summary jurisdiction.

710.           New section 106 confers jurisdiction on the Family Court of a State to hear and determine appeals from a court of summary jurisdiction of the State (subsection 106(1)) and on the Supreme Court of the Northern Territory to hear and determine appeals from a court of summary jurisdiction in the Northern Territory (subsection 106(2)). The jurisdiction conferred by new section 106 is currently conferred by subsection 110(4) (which is being repealed by this item). 

711.           New subsection 107(1) provides that appeals do not lie from a decree of a court exercising original jurisdiction under the Child Support (Registration and Collection) Act 1989 to the High Court and includes a note that similar procedures are set out in sections 37 and 122 of the Federal Circuit and Family Court of Australia Act 2018 which apply to the FCFC (Division 1) and the FCFC (Division 2). New subsection 107(2) provides that if subsection 107(1) is inconsistent with section 73 of the Constitution (which outlines the appellate jurisdiction of the High Court), subsection 107(1) will have effect as though the words “, except by special leave of the High Court” were added to the end of subsection 107(1). This provision is consistent with the approach taken to High Court appeals from judgments of the FCFC (Division 1) and the FCFC (Division 2) (sections 37 and 122 of the Federal Circuit and Family Court of Australia Act 2018 ) and from decrees of state and territory courts exercising appellate jurisdiction (new section 47D of the Family Law Act at item 72 of Schedule 1 of this Bill). This ensures a consistent approach across all courts exercising family law and child support jurisdiction (that is, only to permit an appeal to the High Court with special leave if the provision would otherwise be unconstitutional) .

712.            

713.           The repeal of section 106 to 110 is considered appropriate given that the relevant appeal provisions are provided for (with the exception of that provided for by new section 106) under sections 25 and 102 of the Federal Circuit and Family Court of Australia Act 2018, section 47A and 47B of the Family Law Act (see item 72 of Schedule 1 of this Bill) and section 24 of the Federal Court Act (consistently with the new note at item 179, above). It would be unnecessary to duplicate these provisions in the Child Support (Registration and Collection) Act 1988 also.

Item 182 - Subsection 110W(2) (heading)

714.           Item 182 amends the heading in subsection 110W(2) by repealing the current heading ‘ Full Court of the Family Court’ and substituting ‘ Family Law Appeal Division of the Federal Court’ . This amendment appropriately reflects the conferral of family law and child support appellate jurisdiction upon the Family Law Appeal Division of the Federal Court, instead of on the FCFC (Division 1).

Item 183 - Paragraph 110W(2)(a)

715.           Item 183 amends paragraph 110W(2)(a) by repealing the paragraph and substituting ‘a decision is a decision of the Family Law Appeal Division of the Federal Court; and’. Paragraph 110W(2)(a) provides that a decision of a court becomes final if and when it is decision of the Full Court of the Family Court, and an application for special leave to appeal against the decision to the High Court is not made within 30 days. This amendment appropriately reflects the conferral of appellate family law and child support jurisdiction upon the Family Law Appeal Division of the Federal Court, instead of on the FCFC (Division 1).

Item 184 - After subsection 110W(2)

716.           Item 184 inserts new paragraph 110W(2A) after amended paragraph 110W(2) -  item 183, above refers. New paragraph 110W(2A) would provide that if the decision is one of the FCFC under Part VIII and an application is not made for leave to appeal to the Family Law Appeal Division of the Federal Court within 30 days of the making of the decision, the decision becomes final at the end of that period. This amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and the conferral of appellate family law and child support jurisdiction upon the Family Law Appeal Division of the Federal Court, instead of on the FCFC (Division 1).

Item 185 - Paragraphs 110W(3)(a) and (b)

717.           Item 185 amends paragraphs 110W(3) (a) and (b) by repealing the paragraphs and substituting that subsection 110(3) applies if a decision is a decision of a court (other than as mentioned in paragraphs (2)(a) and (2A)(a)) and an application may be made for leave to appeal against the decision. Subsection 110(3) provides that if the criteria in paragraphs (a) and (b), and an application is not made within the period for doing so (paragraph (c)), the decision of the other court becomes final at the end of that period. This amendment appropriately supports and gives effect to the amendments at items 183 and 184, above.

 

Civil Dispute Resolution Act 2011

Item 186 - Section 5 (paragraph (b) of the definition of eligible court )

718.           Item 186 repeals paragraph (b) of the definition of ‘eligible court’ and replaces it with new paragraph (b), which refers to ‘the Federal Circuit and Family Court of Australia (Division 2)’ in section 5 of the Civil Dispute Resolution Act 2011. Section 5 provides definitions to be used in the interpretation of the Act. Paragraph (b) of the definition of ‘eligible court’ currently provides that the Federal Circuit Court is an eligible court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the meaning of ‘eligible court’ in section 5.

Item 187 - Section 18

719.           Item 187 updates the reference to the Federal Circuit Court Act to be ‘Chapter 4 of the Federal Circuit and Family Court of Australia Act 2018 ’. Section 18 provides for Rules of Court made under certain Acts to include certain provisions. This amendment updates the legislative reference to reflect that the Rules of Court for the FCFC (Division 2) will be made under Chapter 4 of the Federal Circuit and Family Court of Australia Act 2018 . The amendment does not affect the substantive operation of section 18.

 

Coal Mining Industry (Long Service Leave) Administration Act 1992

Item 188 - Subsection 4(1) (definition of Federal Circuit Court )

720.           Item 188 repeals the definition of ‘Federal Circuit Court’ in subsection 4(1) of the Coal Mining Industry (Long Service Leave) Administration Act 1992 . Subsection 4(1) provides definitions to assist in interpreting the Act. The definition currently provides that ‘Federal Circuit Court means the Federal Circuit Court of Australia’. The definition is no longer required as the Federal Circuit Court will be continued as the FCFC (Division 2). Where references in the Act are made to the FCFC (Division 2), the reference is provided in full.

Item 189 - Sections 39DA and 39DB

721.           Item 189 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in sections 39DA and 39DB. Section 39DA currently provides that employees, employee organisations and industrial associations may apply to the Federal Court or the Federal Circuit Court for an order under section 39DB in relation to contraventions or proposed contraventions of the civil penalty provisions under Part 5A. Section 39DB provides for orders that can be made by the Federal Court or the Federal Circuit Court. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of sections 39DA and 39DB.

Item 190 - Paragraph 49A(4)(b)

722.           Item 190 repeals paragraph 49A(4)(b) and replaces it with new paragraph (b), which refers to ‘the Federal Circuit and Family Court of Australia (Division 2)’. Paragraph 49A(4)(b) is inserted by item 27 of Schedule 4 of the Regulatory Powers (Standardisation Reform) Act 2017 and currently makes the Federal Circuit Court a relevant court for the purposes of Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 in relation to the civil penalty provisions of the Coal Mining Industry (Long Service Leave) Administration Act 1992 . The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of paragraph 49A(4)(b).

Item 191 - Section 52C (heading)

723.           Item 191 updates reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to section 52C. The heading now reads ‘Conferral of jurisdiction on the Federal Court and the Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Items 192 and 193 - Subsection 52C(1) and paragraphs 52C(2)(e), (f) and (g)

724.           Items 192 and 193 update references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 52C(1) and paragraphs 52C(2)(e), (f) and (g). Section 52C(1) currently confers jurisdiction on the Federal Court and the Federal Circuit Court in relation to any civil matter arising under the Act or the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 . Section 52C(2) provides that the jurisdiction conferred on the Federal Court is to be exercised is the Fair Work Division of the Federal Court in the circumstances specified in paragraphs 52C(2)(a) to (i). The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsection 52C(1) and paragraphs 52C(2)(e), (f) and (g).

Item 194 - Subsection 52C(3)

725.           Item 194 updates subsection 52C(3) with the words provided. In effect, the first reference to the ‘Federal Circuit Court’ changes to be ‘Federal Circuit and Family Court of Australia (Division 2)’ and the second reference to be ‘the Court’. The second reference states ‘the Court’ as it would be repetitive to include the full reference a second time. Subsection 52C(3) currently provides that the jurisdiction conferred on the Federal Circuit Court under subsection (1) is to be exercised in the Fair Work Division of the Federal Circuit Court in the circumstances specified in paragraphs 52C(3)(a) to (e). The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 52C(3).

Item 195 - Paragraph 52C(3)(a)

726.           Item 195 omits reference to ‘Federal Circuit’ in paragraph 52C(3)(a), leaving a reference to ‘the Court’. This reference to ‘the Court’ means the FCFC (Division 2) by virtue of the amendment in item 194. Paragraph 52C(3)(a) currently provides that when an application is made to the Federal Circuit Court under the Act or the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 , the jurisdiction is to be exercised in the Fair Work Division of the Federal Circuit Court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of paragraph 52C(3)(a).

Item 196 - Paragraph 52C(3)(b)

727.           Item 196 updates the paragraph 52C(3)(b) reference to ‘section 15 of the Federal Circuit Court of Australia Act 1999  to be ‘section 108 of the Federal Circuit and Family Court of Australia Act 2018 ’. Paragraph 52C(3)(b)  currently provides that if an injunction is sought from the Federal Circuit Court under section 15 of the Federal Circuit Court Act in relation to a matter arising under the Act or the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 , the jurisdiction is to be exercised in the Fair Work Division of the Federal Circuit Court. Section 15 of the Federal Circuit Court Act will be reflected in section 108 of the Federal Circuit and Family Court of Australia Act 2018 . The amendment updates the legislative reference to reflect the change in law and does not substantively affect the intent of paragraph 52C(3)(b).

Item 197 - Paragraph 52C(3)(c)

728.           Item 197 updates the paragraph 52C(3)(c) reference to ‘section 16 of the Federal Circuit Court of Australia Act 1999 ’ to be ‘section 109 of the Federal Circuit and Family Court of Australia Act 2018 ’. Paragraph 52C(3)(c) currently provides that if a declaration is sought from the Federal Circuit Court under section 16 of the Federal Circuit Court Act in relation to a matter arising under the Act or the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 , the jurisdiction is to be exercised in the Fair Work Division of the Federal Circuit Court. Section 16 of the Federal Circuit Court Act will be reflected in section 109 of the Federal Circuit and Family Court of Australia Act 2018 . The amendment updates the legislative reference to reflect the change in law and does not substantively affect the intent of paragraph 52C(3)(c).

Item 198 - Paragraphs 52C(3)(d) and (e)

729.           Item 198 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in paragraphs 52C(3)(d) and (e). Paragraph s 52C(3)(d) and (e) currently provide that when proceedings are transferred from the Federal Court to the Federal Circuit Court or the High Court remits a matter to the Federal Circuit Court under the Act or the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 , the jurisdiction is to be exercised in the Fair Work Division of the Federal Circuit Court. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not alter the intent of paragraphs 52C(3)(d) and (e).

Item 199 - Section 52D

730.           Item 199 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in section 52D. Section 52D currently provides that the powers conferred on the Federal Court and the Federal Circuit Court by the Act are in addition to any other powers of the Court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of section 52D.

 

Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992

Item 200 - Paragraph 13A(4)(b)

731.           Item 200 repeals paragraph 13A(4)(b) of the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 and replaces it with new paragraph (b), which refers to ‘the Federal Circuit and Family Court of Australia (Division 2)’. Paragraph 13A(4)(b) is to be inserted by item 44 of Schedule 4 of the Regulatory Powers (Standardisation Reform) Act 2017 and currently makes the Federal Circuit Court a relevant court for the purposes of Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 in relation to the civil penalty provisions of the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992 . The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of paragraph 13A(4)(b).

 

Coastal Trading (Revitalising Australian Shipping) Act 2012

Item 201 - Subsection 6(1) (definition of Federal Circuit Court )

732.           Item 201 repeals the definition of ‘Federal Circuit Court’ in subsection 6(1) of the Coastal Trading (Revitalising Australian Shipping) Act 2012 . Subsection 6(1) provides definitions to assist in interpreting the Act. The definition currently provides that ‘Federal Circuit Court means the Federal Circuit Court of Australia’. The definition is no longer required as the Federal Circuit Court will be continued as the FCFC (Division 2). Where references in the Act are made to the FCFC (Division 2), the reference is provided in full.

Item 202 - Subsection 86(1)

733.           Item 202 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 86(1). Subsection 86(1) currently provides that the Secretary may apply to the Federal Court or the Federal Circuit Court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 86(1).

 

Competition and Consumer Act 2010

Item 203 - Subsection 4(1)

734.           Item 203 repeals the definitions of ‘Federal Circuit Court’ and ‘the Family Court’ in subsection 4(1) of the Competition and Consumer Act 2010 . Subsection 4(1) provides definitions to assist in interpreting the Act. The definition currently provides that ‘Federal Circuit Court means the Federal Circuit Court of Australia’ and ‘the Family Court means the Family Court of Australia’. The definitions are no longer required as the Federal Circuit Court will be continued as the FCFC (Division 2) and the Family Court will be continued as the FCFC (Division 1). Where references in the Act are made to either the FCFC (Division 1) or the FCFC (Division 2), the reference is provided in full.

Items 204 and 205 - Subsection 86(1A) and paragraph 86(4)(a)

735.           Items 204 and 205 update references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 86(1A) and paragraph 86(4)(a). Section 86 provides for the jurisdiction of courts. Subsection 86(1A) currently confers jurisdiction on the Federal Circuit Court in certain matters. Paragraph 86(4)(a) provides that jurisdiction conferred on the Federal Court under subsection 86(1) is exclusive of the jurisdiction of any other court other than the jurisdiction of the Federal Circuit Court under subsection 86(1A). The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsection 86(1A) and paragraph 86(4)(a).

Item 206 - Section 86AA (heading)

736.           Item 206 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to section 86AA. The heading now reads ‘Limit on jurisdiction of FCFC (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 207 - Section 86AA

737.           Item 207 updates section 86AA with the words provided. In effect, the first reference to the ‘Federal Circuit Court’ changes to be ‘Federal Circuit and Family Court of Australia (Division 2)’ and the second reference to be ‘the Court’. The reference to ‘the Court’ means the FCFC (Division 2) and is used as it would be repetitive to include the full reference a second time. Section 86AA currently limits jurisdiction of the Federal Circuit Court to award damages of $750,000 or less in proceedings under section 82, or another amount specified in the regulations. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of section 86AA.

Item 208 - Section 86AA (note)

738.           Item 208 repeals the note to section 86AA and inserts the two notes provided. The existing note currently provides a direction to legislative references that provide for transfers between the Federal Court and the Federal Circuit Court. The new notes update references from the Federal Circuit Court to the FCFC (Division 2), and update the legislative references for the transfer provisions. There are two notes because it is clearer to deal with transfers from the FCFC (Division 2) to the Federal Court separately from transfers from the Federal Court to the FCFC (Division 2). New note 1 outlines that transfers to the Federal Court from the FCFC (Division 2) are undertaken either in accordance with section 120 of the Federal Circuit and Family Court of Australia Act 2018 or the new power of the Federal Court in section 32AC of the Federal Court Act. New note 2 provides that transfers from the Federal Court to the FCFC (Division 2) are undertaken in accordance with 32AB of the Federal Court Act. See item 248 of Schedule 1 of this explanatory memorandum for further guidance.

Item 209 - Section 130 (definition of Family Court Judge )

739.           Item 209 repeals the definition of ‘Family Court Judge’ in section 130. Section 130 provides for definitions to assist in interpreting Part XI of the Act. ‘Family Court Judge’ means ‘a Judge of the Family Court (including the Chief Justice, the Deputy Chief Justice or a Senior Judge)’. This definition is no longer required as Judges of the Family Court will continue as Judges of the FCFC (Division 1). Where references in the Act are made to Judges of the FCFC (Division 1), the reference is provided in full.

Item 210 - Paragraph 138(2)(a)

740.           Item 210 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in paragraph 138(2)(a). Section 138 confers jurisdiction on the Federal Court. Paragraph 138(2)(a) currently provides that jurisdiction conferred on the Federal Court under subsection 138(1) is exclusive of the jurisdiction of any other court other than the jurisdiction of the Federal Circuit Court under section 138A. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of paragraph 138(2)(a).

Item 211 - Section 138A (heading)

741.           Item 211 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to section 138A. The heading now reads ‘Conferring jurisdiction on the Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 212 - Subsection 138A(1)

742.           Item 212 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 138A(1). Subsection 138A(1) currently confers jurisdiction on the Federal Circuit Court in relation to any matter arising under Part XI of the Act or the Australian Consumer Law in respect of which a civil proceeding is instituted by a person other than the Commonwealth Minister. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 138A(1).

Item 213 - Subsection 138A(2)

743.           Item 213 updates subsection 138A(2) with the words provided. In effect, the first reference to the ‘Federal Circuit Court’ changes to be the ‘Federal Circuit and Family Court of Australia (Division 2)’ and the second reference to be ‘the Court’. The reference to ‘the Court’ means the FCFC (Division 2) and is used as it would be repetitive to include the full reference a second time. Subsection 138A(2) currently limits the jurisdiction of the Federal Circuit Court to award damages of $750,000 or less in proceedings under Part 3-5 or section 236 of the Australian Consumer Law, or another amount specified in the regulations. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 138A(2).

Item 214 - Subsection 138A(2) (note)

744.           Item 214 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the note to subsection 138A(2). The note currently provides a direction to legislative references that provide for transfers of proceedings from the Federal Court to the Federal Circuit Court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 215 - Section 138E (heading)

745.           Item 215 repeals the heading of section 138E and replaces it with a new heading. The new heading reads ‘Transfer of proceedings to the Federal Circuit and Family Court of Australia (Division 1)’. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1).

Item 216 - Subsection 138E(1)

746.           Item 216 updates the reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in subsection 138E(1). Subsection 138E(1) currently provides the power for the Federal Court to transfer proceedings to the Family Court if a civil proceeding is before the Federal Court and a matter for determination in the proceedings arises under Part IX of the Act or the Australian Consumer Law. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of subsection 138E(1).

Item 217 - Subsection 138E(2)

747.           Item 217 updates the first reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in subsection 138E(2). Subsection 138E(2) currently provides for the jurisdiction and powers of the Family Court where a matter is transferred to it under subsection 138E(1). The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of subsection 138E(2).

Item 218 - Paragraphs 138E(2)(a) and (b)

748.           Item 218 updates references to the ‘Family Court’ to be ‘Court’ in paragraphs 138E(2)(a) and (b).  Subsection 138E(2) currently provides for the jurisdiction and powers of the Family Court where a matter is transferred to it under subsection 138E(1). The reference to ‘Court’ means the FCFC (Division 1) and is used as it would be repetitive to include the full reference. See item 217 for further guidance. The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the operation of paragraphs 138E(2)(a) and (b).

Item 219 - Paragraph 138E(2)(c)

749.           Item 219 updates the reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in paragraph 138E(2)(c). This reference is provided in full, as it would be unclear whether ‘the Court’ referred to the FCFC (Division 1) or the Federal Court as mentioned in paragraph 138E(2)(b)(ii). Subsection 138E(2) currently provides for the jurisdiction and powers of the Family Court where a matter is transferred to it under subsection 138E(1). The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of paragraph 138E(2)(c).

Item 220 - Paragraph 138E(2)(d)

750.           Item 220 updates the first reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in paragraph 138E(2)(d). Subsection 138E(2) currently provides for the jurisdiction and powers of the Family Court where a matter is transferred to it under subsection 138E(1). The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of paragraph 138E(2)(d).

Item 221 - Paragraph 138E(2)(d)

751.           Item 221 updates the reference to ‘Family Court’ to be ‘that Court’ in paragraph 138E(2)(d). Subsection 138E(2) currently provides for the jurisdiction and powers of the Family Court where a matter is transferred to it under subsection 138E(1). The amendment refers to the FCFC (Division 1) and is used as it would be repetitive to include the full reference. See item 220 for further guidance. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of paragraph 138E(2)(d).

Items 222 and 223 - Paragraph 138(2)(e) and subparagraph 138E(2)(f)(i)

752.           Items 222 and 223 update references to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in paragraph 138(2)(e) and subparagraph 138E(2)(f)(i). Subsection 138E(2) currently provides for the jurisdiction and powers of the Family Court where a matter is transferred to it under subsection 138E(1). The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the operation of paragraph 138(2)(e) and subparagraph 138E(2)(f)(i).

Item 224 - Subparagraphs 138E(2)(f)(ii) and (iii)

753.           Item 224 updates references to ‘Family Court Judge’ to be ‘Judge of the Federal Circuit and Family Court of Australia (Division 1)’ in subparagraphs 138E(2)(f)(ii) and (iii). Subparagraphs 138E(2)(f)(ii) and (iii) currently provide that, for the purposes of paragraph 138E(2)(f), a reference to a ‘Judge of the Federal Court’ includes a reference to a Family Court Judge and a reference to ‘the Court or a Judge’ when used in relation to the Federal Court includes a reference to a Family Court Judge sitting in Chambers. The amendments appropriately reflect the continuation of Judges of the Family Court as Judges of the FCFC (Division 1) and do not substantively alter the operation of subparagraphs 138E(2)(f)(ii) and (iii).

Items 225 and 226 - Subparagraph 138E(2)(f)(iv) and subsections 138E(3) and (4)

754.           Items 225 and 226 update references to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in subparagraph 138E(2)(f)(iv) and subsections 138E(3) and (4). Section 138E currently provides the power for the Federal Court to transfer a proceeding to the Family Court. Subparagraph 138E(2)(f)(iv) provides that a reference to a Registrar of the Federal Court includes a reference to a Registrar of the Family Court. Subsection 138E(3) provides for the Family Court to give directions and make orders to resolve difficulties arising in the granting of remedies, making orders and issuing writs. Subsection 138E(4) provides that parties cannot appeal a Federal Court decision to transfer a proceeding under the Act to the Family Court. The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the operation of subparagraph 138E(2)(f)(iv) and subsections 138E(3) and (4).

Item 227 - Paragraph 151AQA(4)(a)

755.           Item 227 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in paragraph 151AQA(4)(a). Subsection 151AQA(4) currently provides that if a person applies to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 for a review of a decision to issue a competition notice and any relevant proceedings have been instituted  under Division 7 of Part XIB of the Act the Federal Circuit Court or a Judge of the Federal Circuit Court may stay those proceedings. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of paragraph 151AQA(4)(a).

Item 228 - Subsection 151AQA(4)

756.           Item 228 updates subsection 151AQA(4) with the words provided. In effect the first reference to the ‘Federal Circuit Court’ changes to be ‘Federal Circuit and Family Court of Australia (Division 2)’ and ‘Judge of the Federal Circuit Court’ to be ‘Judge of the Court’.  The reference to ‘the Court’ means the FCFC (Division 2) and is used as it would be repetitive to include the full reference a second time. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2), and Judges of the Federal Circuit Court as Judges of the FCFC (Division 2). The amendments do not substantively alter the operation of subsection 151AQA(4).

 

Copyright Act 1968

Item 229 - Section 131D (heading)

757.           Item 229 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading of section 131D of the Copyright Act 1968 . The heading now reads ‘Jurisdiction of Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 230 - Section 131D

758.           Item 230 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in section 131D. Section 131D currently confers jurisdiction on the Federal Circuit Court with respect to civil actions under Part V of the Act excluding section 115A. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of section 131D.

Item 231 - Section 135AS (heading)

759.           Item 231 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to section 135AS. The heading now reads ‘Jurisdiction of Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 232 - Section 135AS

760.           Item 232 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in section 135AS. Section 135AS currently confers jurisdiction on the Federal Circuit Court with respect to actions under Part VAA of the Act. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of section 135AS.

Item 233 - Subsection 195AZGH(5)

761.           Item 233 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 195AZGH(5). Subsection 195AZGH(5) currently provides that the Federal Circuit Court has jurisdiction with respect to matters arising under Part IX of the Act. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 195AZGH(5).

Item 234 - Section 248MA (heading)

762.           Item 234 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to section 248MA. The heading now reads ‘Jurisdiction of Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 235 - Section 248MA

763.           Item 235 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in section 248MA. Section 248MA currently confers jurisdiction on the Federal Circuit Court with respect to actions for unauthorised use under section 248J of the Act. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of section 248MA.

 

Corporations (Aboriginal and Torres Strait Islander) Act 2006

Item 236 - Section 586-10 (heading)

764.           Item 236 updates the reference to the ‘Family Court’ in the heading to section 586-10 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 to be ‘Federal Circuit and Family Court of Australia (Division 1)’. The heading now reads ‘Jurisdiction of Federal Circuit and Family Court of Australia (Division 1) and State Family Courts’. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1).

Item 237 - Subsection 586-10(1)

765.           Item 237 updates the reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in subsection 586-10(1). Subsection 586-10(1) currently confers jurisdiction on the Family Court with respect to civil matters arising under the Aboriginal and Torres Strait Islander Corporations legislation. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of subsection 586-10(1).

Item 238 - Paragraphs 586-15(1)(a), (2)(c) and (5)(a)

766.           Item 238 updates references to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in paragraphs 586-15(1)(a), (2)(c) and (5)(a). Section 586-15 deals with the jurisdiction of courts when Commonwealth officers make decisions to prosecute and decisions on related criminal justice processes. The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the operation of paragraphs 586-15(1)(a), (2)(c) and (5)(a).

 

Item 239 - Paragraphs 586-25(1)(b) and (2)(b)

767.           Item 239 repeals the paragraphs and replaces them with new paragraphs (1)(b) and (2)(b), which refer to ‘the Federal Circuit and Family Court of Australia (Division 1)’. Paragraph 586-25(1)(b) currently provides that an appeal may not be instituted from a decision of the Federal Court to the Family Court. Paragraph 586-25(2)(b) provides that an appeal may not be instituted from a decision of a court of the Australian Capital Territory to the Family Court. The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the operation of paragraphs 586-25(1)(b) and (2)(b).

Item 240 - Paragraph 586-25(3)(c)

768.           Item 240 repeals the paragraph and replaces it with new paragraph (c), which refers to ‘the Federal Circuit and Family Court of Australia (Division 1)’. Paragraph 586-25(3)(c) currently provides that an appeal may not be instituted from a decision of a court (not being a State Family Court) of a State or the Northern Territory to the Family Court. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of paragraph 586-25(3)(c).

Item 241 - Subsection 586-25(4)

769.           Item 241 repeals subsection 586-25(4) and replaces it with a new subsection (4). Subsection 586-25(4) currently provides that an appeal may not be instituted from a decision of the Family Court to the Federal Court or a State or Territory court. The amendment replaces the reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’. The amendment permits appeals from a decision of the FCFC (Division 1) to be heard in the Federal Court. This reflects the change in law as appeals from Family Court decisions will now be heard in the Family Law Appeal Division in the Federal Court rather than by a Full Court of the Family Court. See items 191 and 192 of Schedule 1 of this explanatory memorandum for further guidance on the creation of the Family Law Appeal Division.

Item 242 - Paragraph 586-25(5)(a)

770.           Item 242 repeals paragraph 586-25(5)(a). Paragraph 586-25(5)(a) currently provides that an appeal may not be instituted from a decision of a State Family Court of a State to the Federal Court. The amendment permits appeals from a decision of a State Family Court of a State to be heard in the Federal Court. This reflects the change in law as appeals from State Family Court decisions will now be heard in the Family Law Appeal Division in the Federal Court rather than by a Full Court of the Family Court. See items 191 and 192 of Schedule 1 of this explanatory memorandum for further guidance on the creation of the Family Law Appeal Division.

Item 243 - Section 586-40 (heading)

771.           Item 243 updates the reference to the ‘Family Court’ to be ‘the Federal Circuit and Family Court of Australia (Division 1)’ in the heading to section 586-40. The heading now reads ‘Transfer of proceedings by the Federal Circuit and Family Court of Australia (Division 1) and State Family Courts’. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1).

Item 244 - Subparagraphs 586-40(1)(b)(i) and (3)(a)(i) and (b)(i)

772.           Item 244 repeals subparagraphs 586-40(1)(b)(i) and (3)(a)(i) and (b)(i)and replaces them with new subparagraphs which refer to ‘the Federal Circuit and Family Court of Australia (Division 1)’. Section 586-40 currently deals with the transfer of proceedings by the Family Court and State Family Courts. The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the operation of subparagraphs 586-40(1)(b)(i) and (3)(a)(i) and (b)(i).

Item 245 - Paragraph 586-65(3)(a)

773.           Item 245 updates the reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in paragraph 586-65(3)(a). Paragraph 586-65(3)(a) currently provides that subsection (3) applies to jurisdiction conferred on the Federal Court or the Family Court with respect to civil matters arising under the Aboriginal and Torres Strait Islander Corporations legislation. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of subparagraph 586-65(3)(a).

Item 246 - Section 586-90 (heading)

774.           Item 246 repeals the heading to section 586-90 and replaces it with ‘Rules of the Federal Circuit and Family Court of Australia (Division 1)’. The substitution appropriately reflects the continuation of the Family Court as the FCFC (Division 1).

Item 247 - Section 586-90

775.           Item 247 updates the section 586-90 reference to rules of court conferred by section 123 of the Family Law Act to be ‘Rules of Court under Chapter 3 of the Federal Circuit and Family Court of Australia Act 2018 ’. Section 586-90 currently provides that the power to make rules of court conferred by section 123 of the Family Law Act extends to making rules of court for the purposes of the Aboriginal and Torres Strait Islander Corporations legislation. The amendment refers to the correct Chapter of the Federal Circuit and Family Court of Australia Act 2018 which contains the power for the FCFC (Division 1) to make Rules of Court. The amendment does not affect the intent of section 586-90.

Item 248 - Paragraphs 586-90(a) and (c)

776.           Item 248 updates references to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in paragraphs 586-90(a) and (c). Section 586-90 provides that the power to make rules of court conferred by section 123 of the Family Law Act extends to making rules of court for the purposes of the Aboriginal and Torres Strait Islander Corporations legislation. Paragraph 586-90(a) currently provides that the power to make rules of court extends to rules with respect to proceedings and the practice and procedure of the Family Court under Aboriginal and Torres Strait Islander Corporations legislation. Paragraph 586-90(c) provides the power extends to rules without limitation, with respect to costs and with respect to rules about meetings ordered by the Family Court. The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the operation of paragraphs 586-90(a) and (c).

Item 249 - Subsection 694-35(1) (paragraph (c) of the definition of Court )

777.           Item 249 repeals paragraph (c) of the definition of ‘Court’ in subsection 694-35(1) and  replaces it with new paragraph (c), which refers to ‘the Federal Circuit and Family Court of Australia (Division 1)’. Section 694-35 provides for the meaning of ‘court’ and ‘Court’ in the Act. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of paragraph (c) of the definition of ‘Court’ in subsection 694-35(1).

Item 250 - Section 700-1 (paragraph (b) of the definition of Aboriginal and Torres Strait Islander Corporations legislation )

778.           Item 250 updates the reference to the ‘Family Court’ in paragraph (b) of the definition of Aboriginal and Torres Strait Islander Corporations legislation in section 700-1 to be ‘Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)’. Section 700-1 provides definitions to assist in interpreting the Act. Paragraph (b) of the definition currently refers to rules of court made by the Federal Court, the Supreme Court of the Australian Capital Territory, or the Family Court, because of a provision of the Act. The amendment reflects the change in law as to how rules of court will be made in the FCFC (Division 1); rules of court in the FCFC (Division 1) will be made by the Chief Justice of the FCFC (Division 1). This does not affect the intent of the definition of ‘Aboriginal and Torres Strait Islander Corporations legislation’ in section 700-1.

Item 251 - Section 700-1 (definition of Family Court )

779.           Item 224 repeals the definition of ‘Family Court’ in section 700-1. Section 700-1 provides definitions to assist in interpreting the Act. The definition currently provides that ‘Family Court means the Family Court of Australia’. This definition is no longer required as the Family Court will be continued as the FCFC (Division 1). Where references in the Act are made to the FCFC (Division 1), the reference is provided in full.

Item 251 - Section 700-1 (definition of superior court )

780.           Item 251 updates the reference to ‘the Family Court’ in the definition of ‘superior court’ in section 700-1 to be ‘the Federal Circuit and Family Court of Australia (Division 1)’. Section 700-1 provides definitions to assist in interpreting the Act. Relevantly, the definition of superior court currently includes the Family Court. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not alter the definition of ‘superior court’ in section 700-1.

 

Corporations Act 2001

Item 253 - Section 9 (paragraph (c) of the definition of Corporations legislation)

781.           Item 253 amends paragraph (c) of the definition of ‘Corporations legislation’ in section 9 of the Corporations Act 2001 . Paragraph (c) of the definition provides that Corporations legislation means rules of court made by the Federal Court, the Supreme Court of the Capital Territory, or the Family Court, because of a provision of the Act. This item replaces the reference to ‘Family Court’ with ‘Federal Circuit and Family Court of Australia (Division 1)’. The FCFC (Division 1) will be able to make Rules of Court under the new Court structure, with the amendment making the necessary nomenclature change.

Item 254 - Section 9 (definition of Family Court)

782.           Item 254 repeals the definition of ‘Family Court’ in section 9 of the Act. ‘Family Court’ currently means the ‘Family Court of Australia’. The definition is no longer required as the Family Court will be continued as FCFC (Division 1). Where references in the Act are made to the ‘Federal Circuit and Family Court of Australia (Division 1)’ the title of that Court is provided in full.

Item 255 - Section 9 (definition of superior court)

783.           Item 255 amends the definition of ‘superior court’ in section 9 of the Act by replacing the reference to the ‘Family Court’ with ‘Federal Circuit and Family Court of Australia (Division 1)’. Under the new court structure the FCFC (Division 1) will continue to be a superior court of record. The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and the continuation of the Court as a superior court.

Item 256 - Subsection 58AA(1) (paragraph (c) of the definition of Court)

784.           Item 256 repeals and replaces paragraph (c) of the definition of ‘Court’ in subsection 58AA(1) of the Act. Paragraph (c) currently provides that the definition of Court includes the Family Court of Australia. This item replaces existing paragraph (c) to provide that the definition of Court includes the FCFC (Division 1).

Item 257 - Paragraph 908CI(3)(b)

785.           Item 257 amends subsection 908CI(3) of the Act, which prescribes the courts that are relevant courts in relation to subsection 908CF(1). In particular, this item repeals paragraph 908CI(3)(b), which refers to the ‘Federal Circuit Court of Australia’, and replaces it with new paragraph 908CI(3)(b) which provides that the FCFC (Division 2) is a relevant court in relation to subsection 908CF(1). The amendment does not change the operation of the section.

Item 258 - Section 1337C (heading)

786.           Item 258 amends the heading to section 1337C by replacing the reference to the ‘Family Court’ with ‘Federal Circuit and Family Court of Australia (Division 1)’. The heading will now read ‘Jurisdiction of Federal Circuit and Family Court of Australia (Division 1) and State Family Courts’.

Items 259 and 260 - Subsection 1337C(1) and paragraphs 1337D(1)(a), (2)(c) and (5)(a)

787.           Items 259 to 260 replace references to the ‘Family Court’ in subsection 1337C(1) and paragraphs 1337D(1)(a), 2(c) and 5(a) with ‘Federal Circuit and Family Court of Australia (Division 1)’. Both section 1337C and 1337D relate to the jurisdiction of courts, including the jurisdiction of the Family Court. These items appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and do not change the operation of the relevant sections.

Items 261 and 262 - Paragraphs 1337F(1)(b), (2)(b) and (3)(c)

788.           Items 261 and 262 repeal paragraphs 1337F(1)(b), (2)(b) and (3)(c) of the Act. Section 1337F provides for the appeal avenues from decisions of the specified courts. These items repeal the paragraphs that refer to the ‘Family Court’ and replace them with paragraphs that refer to the ‘Federal Circuit and Family Court of Australia (Division 1)’. These items do not change the operation of the paragraphs and provide for the necessary nomenclature changes to accurately reflect the new structure of the courts.

Item 263 - Subsection 1337F(4)

789.           Item 263 repeals subsection 1337F(4) and replaces it with a new subsection (4). Existing subsection 1337F(4) provides that an appeal may not be instituted from a decision of the Family Court to the Federal Court a State or Territory Court. New subsection (4) provides that an appeal may not be instituted from a decision of the FCFC (Division 1) to a State or Territory Court. New subsection (4) reflects the new appeal structure of the federal courts, with most of the appellate jurisdiction of the Family Court being transferred to a new Division of the Federal Court - the Family Law Appeal Division. Appeals from decisions of the FCFC (Division 1) will now be heard in the Family Law Appeal Division of the Federal Court. Consequently, subsection (4) needs to be amended to allow appeals from the FCFC (Division 1) to lie to the Federal Court.

Item 264 - Paragraph 1337F(5)(a)

790.           Item 264 repeals paragraph 1337F(5)(a), which currently provides that an appeal may not be instituted from a decision of a State Family Court of a State to the Federal Court. Paragraph (a) is no longer required due to the new appeal structure of the federal courts. As noted in the item above, most of the appellate jurisdiction of the Family Court is being transferred to a new Division of the Federal Court - the Family Law Appeal Division. Appeals from a State Family Court (such as the Family Court of Western Australia) will now lie to the Federal Court rather than the FCFC (Division 1). To facilitate this, paragraph (a) needs to be removed from subsection 1337(5).

Item 265 - Section 1337J (heading)

791.           Item 265 amends the heading to section 1337J by replacing the reference to the ‘Family Court’ with ‘Federal Circuit and Family Court of Australia (Division 1)’. The heading will now read ‘Transfer of proceedings by Federal Circuit and Family Court of Australia (Division 1) and State Family Courts’.

Item 266 - Subparagraphs 1337J(1)(b)(i) and (3)(a)(i) and (b)(i)

792.           Item 266 repeals subparagraphs 1227J(1)(b)(i) and (3)(a)(i) and (b)(i), which refer to the ‘Family Court of Australia’ and replaces them with new subparagraphs that refer to the ‘Federal Circuit and Family Court of Australia (Division 1)’. The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1).

Item 267 - Subsection 1337P(3) (paragraph (a) of the definition of relevant jurisdiction)

793.           Item 267 amends paragraph (a) of the definition of ‘relevant jurisdiction’ in subsection 1337P(3) by replacing the reference to the ‘Family Court’ with ‘Federal Circuit and Family Court of Australia (Division 1)’. Paragraph 1337P(3)(a) will now provide that relevant jurisdiction means jurisdiction conferred on the Federal Court or the FCFC (Division 1) with respect to civil matters arising under the Corporations Legislation.

Item 268 - Section 1337U (heading)

794.           Item 268 amends the heading to section 1337U by replacing the reference to the ‘Family Court’ with ‘Federal Circuit and Family Court of Australia (Division 1)’. The heading will now read ‘Rules of the Federal Circuit and Family Court of Australia (Division 1)’.

Item 269 - Subsection 1337U(1)

795.           Item 269 amends subsection 1337U(1), which provides that the power to make rules of court conferred by section 123 of the Family Law Act extends to making rules of court for the matters specified in paragraphs 1337U(1)(a)-(c).  This item replaces the reference to ‘rules of court conferred by section 123 of the Family Law Act 1975 ’ with ‘Rules of Court under Chapter 3 of the Federal Circuit and Family Court of Australia Act 2018’. This is to accurately reflect that the power to make rules of the FCFC (Division 1) will be contained in new Chapter 3 of the Federal Circuit and Family Court of Australia Act 2018 rather than section 123 of the Family Law Act.

Item 270 - Paragraphs 1337U(1)(a) and (c)

796.           Item 270 amends paragraphs 1337U(1)(a) and (c) by replacing references to the ‘Family Court’ with ‘Federal Circuit and Family Court of Australia (Division 1)’. Section 1337U provides that the power to make rules of court conferred by section 123 of the Family Law Act extends to making Rules of Court for the matters specified in paragraphs 1337U(1)(a)-(c). The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and do not change the operation of the section.

 

Court Security Act 2013

Item 271 - Section 5 (table item 3 in the definition of administrative head )

797.           Item 271 repeals table item 3 in the definition of ‘administrative head’ in section 5 of the Court Security Act 2013 and replaces it with the text provided for new table items 3 and 4. Section 5 provides definitions to assist in interpreting the Act. New table item 3 updates the reference to the ‘Family Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ and updates the administrative head to be the ‘Chief Executive Officer and Principal Registrar of the Federal Court of Australia’.

798.           New table item 4, in combination with item 272, updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ and updates the administrative head to be the ‘Chief Executive Officer and Principal Registrar of the Federal Court of Australia’.

799.           The amendments to the names of the Courts appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2). The amendments to the administrative head column reflects the change in law, that the administrative head of the FCFC will be the Chief Executive Officer and Principal Registrar of the Federal Court as introduced by the Federal Circuit and Family Court of Australia Act 2018 . The amendments, in combination with item 272, appropriately reflect the change in name and administrative structure.

Item 272 - Section 5 (table item 6 in the definition of administrative head )

800.           Item 272 repeals table item 6 in the definition of ‘administrative head’ in section 5. Table item 6 provides the administrative head for the Federal Circuit Court. See item 271 for further guidance.

Item 273 - Section 5 (cell at table item 7 in the definition of administrative head , column headed ‘Court’)

801.           Item 273 updates the cell at table item 7 in the definition of ‘administrative head’ under the column headed ‘Court’ in section 5. Table item 7 provides for the administrative head of federal courts not mentioned elsewhere in the table. Item 244 removes the reference to table item 6, as it is being repealed by item 243. This amendment does not substantively alter the operation of table item 7 in the definition of ‘administrative head’ in section 5.

Item 274 - Subsection 41(1)

802.           Item 274 updates the reference to the ‘Family Court of Australia’ and the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ and ‘Federal Circuit and Family Court of Australia (Division 2)’, respectively in subsection 41(1). Subsection 41(1) currently provides that a member of the Family Court of Australia, the Family Court of Western Australia or the Federal Circuit Court may make an order prohibiting a specified person from doing a specified act for a specified period. The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2) and re-order the names of the Courts to group the Divisions of the FCFC together. The amendments do not substantively alter the operation of subsection 41(1).

Item 275 - Subsection 41(1) (note 3)

803.           Item 275 repeals note 3 to subsection 41(1) and replaces it with a new note 3 to subsection 41(1). New note 3 refers to section 30A of the Federal Court Act, which applies in relation to appeals from the variation or revocation of an order if the order was made by a member of the FCFC (Division 1), the FCFC (Division 2) or the Family Court of Western Australia. The new note reflects the new appeal structure of the federal courts. The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2) and do not affect the intent of the note.

Item 276 - Section 45 (note)

804.           Item 276 repeals the note to section 45 and replaces it with a new note to section 45. Section 45 provides that a member of a court who may make a court security order may vary or revoke such an order relating to their court. The new note refers to section 30A of the Federal Court Act, which applies in relation to appeals from the variation or revocation of an order if the order was made by a member of the FCFC (Division 1), the FCFC (Division 2) or the Family Court of Western Australia. The new note reflects the new appeal structure of the federal courts. The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2) and do not affect the intent of the note.

Item 277 - Section 51 (table item 2)

805.           Item 277 repeals table item 2 in section 51 and replaces it with new table items 2 and 3. Section 51 deals with delegation by an administrative head of a court to a person listed in the table. New table item 2 updates the reference to the ‘Family Court of Australia’ to be ’ Federal Circuit and Family Court of Australia (Division 1)’ and updates the person to whom the administrative head may delegate powers and functions to be ‘The Marshal of the Federal Circuit and Family Court of Australia (Division 1)’. New table item 3, in combination with item 278, updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ and updates the person to whom the administrative head  may delegate powers and functions to be ‘The Marshal of the Federal Circuit and Family Court of Australia (Division 2)’. The amendments to the names of the Court and the Marshals appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2).

Item 278 - Section 51 (table item 5)

806.           Item 278 repeals table item 5 in section 51. Table item 5 provides for the person to whom the administrative head of the Federal Circuit Court may delegate. See item 277 for further guidance.

Item 279 - Section 51 (cell at table item 6, column headed ‘Court’)

807.           Item 279 updates the cell at table item 6 in section 51 under the column headed ‘Court’. Table item 6 provides for persons to whom administrative heads of federal courts not mentioned elsewhere in the table may delegate powers and functions. This item removes the reference to table item 5, as it is being repealed by item 277. This amendment does not substantively alter the operation of table item 6 in section 51.

 

Crimes Act 1914

Item 280 - Subsection 3ZQO(1)

808.           Item 280 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 3ZQO(1) of the Crimes Act 1914 . Subsection 3ZQO(1) currently provides that an authorised Australian Federal Police (AFP) officer may apply to a Judge of the Federal Circuit Court for a notice under section 3ZQO of the Act in respect of a person if the AFP officer considers on reasonable grounds that the person has documents (including in electronic form) that are relevant to, and will assist, the investigation of a serious offence. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 3ZQO(1).

Item 281 - Section 3ZQQ (heading)

809.           Item 281 updates the reference to ‘Federal Circuit Court Judges’ to be ‘Judges of the Federal Circuit and Family Court of Australia (Division 2)’ in the heading to section 3ZQQ. The heading now reads ‘Powers conferred on Judges of the FCFC (Division 2) in their personal capacity’. The amendment appropriately reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2).

Item 282 - Section 3ZQQ

810.           Item 282 updates references to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in section 3ZQQ. Section 3ZQQ currently provides that with powers conferred on Federal Circuit Court Judges by section 3ZQO are conferred on those Judges in their personal capacity. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of section 3ZQQ.

Item 283 - Paragraph 3ZZNF(3)(a)

811.           Item 283 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in paragraph 3ZZNF(3)(a). Section 3ZZNF provides for the Commonwealth to pay compensation in specified circumstances for damage to electronic equipment operated under Part IAAB of the Act. Paragraph 3ZZNF(3)(a) currently provides that if the Commonwealth and the owner or user fail to agree on the amount of compensation, the owner or user may institute proceedings in the Federal Court or the Federal Circuit Court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of section 3ZZNF.

Item 284 - Paragraph 4AAA(1)(ab)

812.           Item 284 repeals paragraph 4AAA(1)(ab) and replaces it with a new paragraph which refers to ‘a Judge of the Federal Circuit and Family Court of Australia (Division 2)’. Section 4AAA provides for Commonwealth laws that confer non-judicial functions and powers on officers. Paragraph 4AAA(1)(ab) currently provides that the section sets out the rules that apply if, under a law of the Commonwealth relating to criminal matters, a function or power that is neither judicial nor incidental to a judicial function or power, is conferred on a Judge of the Federal Circuit Court. The amendment appropriately reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not substantively alter the operation of paragraph 4AAA(1)(ab).

Item 285 - Subsections 4AAA(2) and (3A)

813.           Item 285 updates references to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsections 4AAA(2) and (3A). Section 4AAA provides for Commonwealth laws that confer non-judicial functions and powers on officers. Subsection 4AAA(2) currently provides that the function or power is conferred on the person in their personal capacity. Subsection 4AAA(3A) provides for a Judge of the Federal Court or a Judge of the Federal Circuit Court performing a conferred function or exercising a conferred power to have the same protection and immunity as a Justice of the High Court in relation to proceedings in the High Court. The amendments appropriately reflect the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and do not substantively alter the operation of subsections 4AAA(2) and (3A).

 

Criminal Code Act 1995

Item 286 - Subsection 100.1(1) of the Criminal Code (paragraph (c) of the definition of issuing court )

814.           Item 286 amends paragraph (c) of the definition of ‘issuing court’ in subsection 100.1(1) of the Criminal Code . The definition is relevant to Division 104 which relates to the making of control orders. Item 257 amends paragraph (c) to remove the reference to ‘the Federal Circuit Court of Australia’ and replace it with ‘the Federal Circuit and Family Court of Australia (Division 2)’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2). The amendment does not impact on the operation of the definition, nor does it extend the operation of the definition so that it applies to the FCFC (Division 1), which will be a continuation of the Family Court.

Item 287 - Paragraph 105.2(1) (b) of the Criminal Code

815.           Item 287 amends paragraph 105.2(1)(b) of the Criminal Code . Section 105.2 outlines who the Attorney-General may appoint as an issuing authority for continued preventative detention orders. Item 287 amends the paragraph by removing the reference to the ‘Federal Circuit Court of Australia’ and replacing it with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment makes the necessary nomenclature changes to reflect the new court structure and does not alter who can be appointed as an issuing authority for the purpose of issuing continued preventative detention orders.

Item 288 - Subsections 105.43(4), (5) and (7) of the Criminal Code

816.           Item 288 amends subsections 105.43(4), (5) and (7) of the Criminal Code . These subsections outline the powers of police officers to take fingerprints, samples of handwriting or photographs. Item 288 removes all references to the ‘Federal Circuit Court of Australia’ and replaces them with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not impact on the operation of this section.

Item 289 - Section 105.46 of the Criminal Code (heading)

817.           Item 289 amends the heading to section 105.46 of the Criminal Code by replacing the reference to ‘Federal Circuit Court Judge’ with ‘Judge of the Federal Circuit and Family Court of Australia (Division 2)’. The heading will now read ‘Nature of functions of Judge of the Federal Circuit and Family Court of Australia (Division 2)’.

Item 290 - Section 105.46 of the Criminal Code

818.           Item 290 amends section 105.46 of the Criminal Code , which deals with the nature of functions of Federal Circuit Court judges. Item 261 removes references to the ‘Federal Circuit Court of Australia’ and replaces them with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not impact on the nature of Judges’ functions.

Item 291 - Section 106.4 of the Criminal Code

819.           Item 291 amends section 106.4 of the Criminal Code , which is a savings provision for items relating to and things done by Federal Magistrates. Existing section 106.4 was required to save appointments made and consents given under section 105.2 and things done by Federal Magistrates as issuing authorities when the Federal Magistrates Court of Australia was changed to be the Federal Circuit Court. Now that the Federal Circuit Court will be continued as the FCFC (Division 2) a similar savings provisions is required to save appointments made and consents given under section 105.2 and things done by Judges of the Federal Circuit Court FCFC as issuing authorities.

820.           The new savings provisions will also operate so that it applies to appointments made and consents given under section 105.2 and things done by Federal Magistrates as issuing authorities. New section 106.4 also includes specific references to the commencement of the operation of the section, being 1 January 2019.

821.           Item 291 repeals and replaces section 106.4, including the heading. The new heading removes the reference to ‘Federal Magistrates’ and replaces it with ‘Judges of the Federal Circuit Court’. The new heading will now read ‘Saving — Judges of the Federal Circuit Court’.

822.           New subsection 106.4(1) provides that an appointment that is in force immediately before 1 January 2019 under subsection 105.2(1) in respect of a Judge of the Federal Circuit Court of Australia continues in force, on and after that day, as an appointment in respect of a Judge of the FCFC (Division 2) under that subsection.

823.           New subsection 106.4(2) provides that a consent that is in force immediately before 1 January 2019 under subsection 105.2(2) in respect of a Judge of the Federal Circuit Court of Australia continues in force, on and after that day, as an appointment in respect of a Judge of the FCFC (Division 2) under that subsection.

824.           New subsection 106.4(3) provides that a thing done by, or in relation to, a Judge of the Federal Circuit Court of Australia, as an issuing authority for continued preventative detention orders, under Division 105 before 1 January 2019 has effect, on and after that day, as if it had been done by, or in relation to, a Judge of the FCFC (Division 2), as an issuing authority for continued preventative detention orders, under that Division.

Item 292 - Subparagraph 123.1(2)(b)(ii) of the Criminal Code

825.           Item 292 amends subparagraph 123.1(2)(b)(ii) of the Criminal Code , by repealing the subparagraph and substituting a new subparagraph which refers to the FCFC (Division 2). Subparagraph 123.1(2)(b) provides that a relevant court for the purposes of Part 7 of the Regulatory Powers (Standard Provisions) Act 2014 is the Federal Circuit Court. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not impact on the operation of this section.

Item 293 - Paragraph 150.5(3)(b) of the Criminal Code

826.           Item 293 amends paragraph 150.5(3)(b) of the Criminal Code , which provides that the Federal Circuit Court of Australia is a relevant court with respect to injunctions made under Part 7 of the Regulatory Powers (Standard Provisions) Act 2014. Item 293 repeals the paragraph which references the ‘Federal Circuit Court of Australia’ and replaces it with a new paragraph (b), which refers to ‘the Federal Circuit and Family Court of Australia (Division 2)’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not impact on the operation of this section.

 

Customs Act 1901

Item 294 - Subsection 4(1) (paragraph (a) of the definition of Division 1B Judge )

827.           Item 294 updates the reference to the ‘Family Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in paragraph (a) of the definition of ‘Division 1B Judge’ in subsection 4(1) of the Customs Act 1901 . Subsection 4(1) provides definitions to assist in interpreting the Act. Relevantly, paragraph (a) of the definition of ‘Division 1B Judge’ currently includes ‘a Judge of the Family Court of Australia’ in relation to whom a consent under subsection 219RA(1) and a nomination under subsection 219RA(2) are in force. The amendment appropriately reflects the continuation of Judges of the Family Court as Judges of the FCFC (Division 1) and does not substantively alter the operation of paragraph (a) of the definition of ‘Division 1B Judge’.

Item 295 - Subsections 219RA(1) and 219ZL(1)

828.           Item 295 updates references to the ‘Family Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in subsections 219RA(1) and 219ZL(1). Subsection 219RA(1) currently provides that a Judge of the Family Court of Australia, and the other listed Judges, may consent to be nominated by the Minister to be a Division 1B Judge. Subsection 219ZL(1) provides that a Judge issuing a warrant or giving an order under Part XII, including a Judge of the Family Court, has the same protection and immunity that a Justice of the High Court has in relation to proceedings in the High Court. The amendments appropriately reflect the continuation of Judges of the Family Court as Judges of the FCFC (Division 1) and do not substantively alter the operation of subsections 219RA(1) and 219ZL(1).

 

Defence Act 1903

Item 296 - Subparagraph 117AE(3)(e)(ii)

829.           Item 296 repeals subparagraph 117AE(3)(e)(ii) of the Defence Act 1903 and replaces it with new subparagraph (ii), which refers to ‘the Federal Circuit and Family Court of Australia (Division 2)’. Subparagraph 117AE(3)(e)(ii) currently provides that the Federal Circuit Court is a relevant court for the purposes of Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 . The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of paragraph 117AE(3)(e).

 

Defence Force (Home Loans Assistance) Act 1990

Item 297 - Section 3 (definition of Family Court )

830.           Item 297 repeals the definition of ‘Family Court’ in section 3 of the Defence Force (Home Loans Assistance) Act 1990 . Section 3 provides definitions to assist in interpreting the Act. The definition currently provides that ‘Family Court’ means ‘the Family Court of Australia’. The definition is no longer required as the Family Court will be continued as the FCFC (Division 1). Where references in the Act are made to the FCFC (Division 1), the reference is provided in full.

Item 298 - Paragraphs 18(1)(a) and 29(d) and (e)

831.           Item 298 updates references to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in paragraphs 18(1)(a) and 29(d) and (e). Paragraph 18(1)(a) currently provides that the Secretary of Defence must grant approval in relation to the sale, purchase or transfer of a house subject to a subsidised loan if satisfied that the proposed sale, purchase or transfer has not been ordered by the Family Court.

832.           Section 29 specifies when a subsidy stops being payable on a subsidised loan to a person who is a subsidised borrower. Paragraph 29(d) provides that the subsidy stops being payable when the property to which the loan relates is transferred under an order of the Family Court to the person’s spouse or de facto partner, or former spouse or former de facto partner, or to the person and his or her former spouse or former de facto partner, whether as joint tenants or as tenants in common. Paragraph 29(e) provides that the subsidy stops being payable when the property to which the loan relates, or any interest in it, is sold or transferred to another person (other than under an order of the Family Court) without an approval under section 18.

833.           The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the operation of paragraphs 18(1)(a) and 29(d) and (e).

 

Defence Reserve Service (Protection) Act 2001

Items 299 and 300 - Paragraphs 76A(3)(b) and 77(1)(b), and subsection 77(2)

834.           Items 299 and 300 update references to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in paragraphs 76A(3)(b) and 77(1)(b) and subsection 77(2) of the Defence Reserve Service (Protection) Act 2001 . Paragraph 76A(3)(b) currently provides that the Federal Court or the Federal Circuit Court is a relevant court in relation to the civil penalty provisions of the Act for the purposes of Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 . Paragraph 77(1)(b) provides that the Federal Court or the Federal Circuit Court may hear and determine matters arising under the Defence Reserve Service (Protection) Act 2001 . Subsection 77(2) clarifies that this Act does not confer any criminal jurisdiction on the Federal Court of Australia or the Federal Circuit Court. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of paragraphs 76A(3)(b) and 77(1)(b), and subsection 77(2).

 

Designs Act 2003

Item 301 - Section 5 (definition of Federal Circuit Court )

835.           Item 301 repeals the definition of ‘Federal Circuit Court’ in section 5 of the Designs Act 2003 . Section 5 provides definitions to assist in interpreting the Act. The definition provides that ‘Federal Circuit Court’ means ‘the Federal Circuit Court of Australia’. The definition is no longer required as the Federal Circuit Court will be continued as the FCFC (Division 2). Where references in the Act are made to the FCFC (Division 2), the reference is provided in full.

Item 302 - Section 5 (paragraph (aa) of the definition of prescribed court )

836.           Item 302 repeals paragraph (aa) of the definition of ‘prescribed court’ in section 5 and replaces it with new paragraph (aa), which refers to ‘the Federal Circuit and Family Court of Australia (Division 2)’. Section 5 provides definitions to assist in interpreting the Act. Currently, the Federal Circuit Court is defined as being a prescribed court under paragraph (aa) of the definition of ‘prescribed court’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not alter the effect of the definition of ‘prescribed court’ in section 5.

Item 303 - Subsections 28(5), 50(6), 52(7), 54(4), 67(4) and 68(6)

837.           Item 303 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsections 28(5), 50(6), 52(7), 54(4), 67(4) and 68(6). These subsections currently provide that appeals lie to the Federal Court or the Federal Circuit Court against decisions of the Registrar under the relevant sections. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsections 28(5), 50(6), 52(7), 54(4), 67(4) and 68(6).

Item 304 - Section 82

838.           Item 304 omits the second paragraph of the simplified outline of section 82 of Chapter 7 of the Act. The new paragraph updates the reference to the ‘Federal Circuit Court’ in the second paragraph to be ‘Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not alter the intent of section 82.

Item 305 - Paragraph 83(2)(a)

839.           Item 305 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in paragraph 83(2)(a). Paragraph 83(2)(a) currently provides that the jurisdiction of the Federal Court to hear and determine appeals from decisions of the Registrar is exclusive of the jurisdiction of any other court other than the jurisdiction of the Federal Circuit Court under subsection 83A(2). The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of paragraph 83(2)(a).

 

Item 306 - Section 83A (heading)

840.           Item 306 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to section 83A. The heading now reads ‘Jurisdiction of the Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Items 307 to 309 - Section 83A, subsection 84(1), and subsection 86(3)

841.           Items 307 to 309 update references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in section 83A, subsection 84(1), and subsection 86(3). Section 83A currently deals with the jurisdiction of the Federal Circuit Court to deal with matters arising under the Act. Section 84 deals with jurisdiction of prescribed courts other than the Federal Court or the Federal Circuit Court to deal with matters arising under the Act that may be brought in a prescribed court. Subsection 86(3) provides that section 86, dealing with transfer of proceedings, does not apply in relation to a transfer of proceeding between the Federal Court and the Federal Circuit Court. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of section 83A, subsection 84(1), and subsection 86(3).

Item 310 - Subsection 86(3) (note)

842.           Item 310 repeals the note to subsection 86(3) and replaces it with two notes. The note currently provides a direction to legislative references that provide for transfers between the Federal Court and the Federal Circuit Court. The new notes update references from the Federal Circuit Court to the FCFC (Division 2), and update the legislative references for the transfer provisions. Section 120 of the Federal Circuit and Family Court of Australia Act 2018 provides the FCFC (Division 2) with the power to transfer matters, other than proceedings relating to family law matters, on its own initiative or on the application of a party to the Federal Court, though the Federal Court must confirm such a transfer under new section 32AD of the Federal Court Act.  New section 32AC of the Federal Court Act provides the Federal Court with the power to transfer matters, other than proceedings relating to family law matters, on its own initiative or on the application of a party from the FCFC (Division 2). Amended section 32AB provides for discretionary transfer of civil proceedings to the FCFC. There are two notes because it is clearer to deal with transfers from the FCFC (Division 2) to the Federal Court separately from transfers from the Federal Court to the FCFC (Division 1). See item 248 of Schedule 1 of this explanatory memorandum for further guidance.

Item 311 - Subsection 87(2)

843.           Item 311 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 87(2). Subsection 87(2) currently provides that an appeal does not lie to the Full Court of the Federal Court from a judgment or order of a single judge of the Federal Court or the Federal Circuit Court in the exercise of its jurisdiction to hear and determine appeals from decisions of the Registrar other than with leave of the Federal Court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 87(2).

Item 312 - Section 88 (heading)

844.           Item 312 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to section 88. The heading now reads ‘Powers of Federal Court and Federal Circuit and Family Court of Australia (Division 2) on hearing an appeal’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 313 - Sections 88 and 89

845.           Item 313 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in sections 88 and 89. Section 88 currently deals with the powers of the Federal Court and the Federal Circuit Court on hearing an appeal against a decision or direction of the Registrar. Section 89 provides that the Registrar may appear and be heard at the hearing of an appeal against a decision or direction of the Registrar, even if the Registrar is not a party to the appeal. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of sections 88 and 89.

 

Do Not Call Register Act 2006

Item 314 - Section 4 (definition of Federal Circuit Court )

846.           Item 314 repeals the definition of ‘Federal Circuit Court’ in section 4 of the Do Not Call Register Act 2006 . Section 4 provides definitions to assist in interpreting the Act. Currently, the ‘Federal Circuit Court’ is defined as being the ‘Federal Circuit Court of Australia’. The definition is no longer required as the Federal Circuit Court will be continued as the FCFC (Division 2). Where references in the Act are made to the FCFC (Division 1), the reference is provided in full.

Item 315 - Section 23

847.           Item 315 omits the second dot point of the simplified outline of Part 4 of the Act and replaces it with a new dot point in section 23. The reference to the ‘Federal Circuit Court’ in the second dot point is updated to be ‘Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not alter the intent of section 23.

Items 316 to 322 - Subsection 24(1), paragraphs 25(2)(a), (3)(b), (4)(b), (5)(b) and (6)(b), sections 26 and 28, paragraph 30(1)(a), subsection 30(3), paragraph 31(1)(a), and subsection 31(2)

848.           Items 316 to 322 update references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in sections 24, 25, 26, 28, 30 and 31. Subsection 24(1) currently provides that the Federal Court or Federal Circuit Court may order a person pay to the Commonwealth a pecuniary penalty. Section 25 provides for the maximum penalties for contravention of the civil penalty provisions. Section 26 provides that the Federal Court or Federal Circuit Court may direct that 2 or more proceedings for civil penalty orders are to be heard together. Section 28 provides that the rules of evidence and procedure for civil matters must be applied in proceedings for a civil penalty order. Section 30 provides that the Federal Court or Federal Circuit Court may make an ancillary order of compensation. Section 31 provides that the Federal Court or Federal Circuit Court may make an ancillary order of recovery of financial benefit to the Commonwealth.

849.           The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsection 24(1), paragraphs 25(2)(a), (3)(b), (4)(b), (5)(b) and (6)(b), sections 26 and 28, paragraph 30(1)(a), subsection 30(3), paragraph 31(1)(a), and subsection 31(2).

Item 323 - Section 33

850.           Item 323 omits the dot point of the simplified outline of Part 5 of the Act and replaces it with a new dot point in section 33. The new dot point updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not alter the intent of section 33.

Item 324 - Sections 34, 35, 36 and 37

851.           Item 324 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in sections 34, 35, 36 and 37. Section 34 currently deals with the ability of the Federal Court and Federal Circuit Court to grant restraining and performance injunctions. Section 35 provides that the Federal Court and Federal Circuit Court may grant an interim injunction but the courts are not to require any undertakings as to damages. Section 36 provides that the Federal Court or Federal Circuit Court may discharge or vary an injunction granted by it under Part 5 of the Act. Section 37 provides that certain limits on granting injunctions are not to apply. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of sections 34, 35, 36 and 37.

Item 325 - Section 38 (heading)

852.           Item 325 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to section 38. The heading now reads ‘Other powers of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) unaffected’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Items 326 and 327 - Section 38, and paragraph 44(2)(a)

853.           Items 326 and 327 update references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in section 38 and paragraph 44(2)(a). Section 38 currently provides that powers of the Federal Court and Federal Circuit Court under Part 5 are in addition to any other powers of courts. Section 44 provides that the regulations may give effect to international conventions. Paragraph 44(2)(a) provides that these regulations may vest the Federal Court or the Federal Circuit Court with jurisdiction in a matter or matters arising under the regulations. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of section 38, and paragraph 44(2)(a).

 

Item 328 - Clause 1 of Schedule 3

854.           Item 328 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in clause 1 of Schedule 3. Clause 1 of Schedule 3 currently outlines the object of the Schedule, which is to set up a system of infringement notices for contraventions of civil penalty provisions as an alternative to the institution of proceedings in the Federal Court or the Federal Circuit Court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not alter the intent of clause 1 of Schedule 3.

Item 329 - Paragraph 3(1)(d) of Schedule 3

855.           Item 329 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in paragraph 3(1)(d) of Schedule 3. Clause 3 lists the matters to include in infringement notices. Paragraph 3(1)(d) currently provides that infringement notices must contain a statement to the effect that the matter or matters will not be dealt with by the Federal Court or Federal Circuit Court if the penalty specified in the notice is paid to the ACMA, on behalf of the Commonwealth, within the specified timeframe. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of paragraph 3(1)(d) of Schedule 3.

Item 330 - Paragraph 7(c) of Schedule 3

856.           Item 330 updates the reference to the ‘Federal Court’s or the Federal Circuit Court’s discretion’ to be ‘discretion of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2)’ in paragraph 7(c) of Schedule 3. Paragraph 7(c) currently provides that Schedule 3 does not limit the discretion of the Federal Court or Federal Circuit Court to determine the amount of a penalty to be imposed on a person who is found in proceedings under Part 4 of the Act to have committed a civil contravention. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of paragraph 7(c) of Schedule 3.

 

Education Services for Overseas Students Act 2000

Item 331 - Subsection 110B(1)

857.           Item 331 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 110B(1) of the Education Services for Overseas Students Act 2000 . Section 110B currently provides for the enforcement of undertakings in the Federal Court or Federal Circuit Court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 110B(1).

 

Enhancing Online Safety Act 2015

Item 332 - Subsections 46(3), 47(3) and 48(3)

858.           Item 332 updates references to the ‘Federal Circuit Court of Australia’to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsections 46(3), 47(3) and 48(3) of the Enhancing Online Safety Act 2015 . These subsections currently provide that the Federal Circuit Court is a relevant court for the purposes of Parts 4, 6 and 7, respectively of the Regulatory Powers (Standard Provisions) Act 2014 . The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsections 46(3), 47(3) and 48(3).

 

Evidence Act 1995 

Item 333 - Subsection 4(5A)

859.           Item 333 updates the reference to the ‘Family Court of Australia’ to be ‘Federal Circuit and Family Court of Australia’ in subsection 4(5A) of the Evidence Act 1995 .  Section 4 outlines the courts and proceedings to which the Act applies. Subsection 4(5A) currently makes clear that the Act applies to an appeal to the Family Court of Australia from a court of summary jurisdiction of a State or Territory exercising jurisdiction under the Family Law Act. Section 25 of the Federal Circuit and Family Court of Australia Act 2018 provides that appeals from a court of summary jurisdiction of a State or Territory exercising jurisdiction under the Family Law Act may be heard by the FCFC (Division 1). Section 102 of the Federal Circuit and Family Court of Australia Act 2018 provides that the same appeals may also be heard by the FCFC (Division 2). When referring to either or both divisions of the FCFC, the courts are referred to as the ‘Federal Circuit and Family Court of Australia’. See item 303 for further guidance. The amendment appropriately reflects the change in law for appeal pathways from State and Territory courts of summary jurisdiction exercising jurisdiction under the Family Law Act.

Item 334 - Part 1 of the Dictionary

860.           Item 334 inserts a definition of the ‘Federal Circuit and Family Court of Australia’ into Part 1 of the Dictionary. Part 1 of the Dictionary provides definitions to assist in interpreting the Act. The new definition provides that the FCFC means the FCFC (Division 1) or the FCFC (Division 2). A reference to the ‘Federal Circuit and Family Court of Australia’ throughout the Act is to be taken to refer to either the FCFC (Division 1) or the FCFC (Division 2) or both. The Federal Circuit and Family Court of Australia Act 2018 provides that appeals from a court of summary jurisdiction of a State or Territory exercising jurisdiction under the Family Law Act may go to either the FCFC (Division 1) or the FCFC (Division 2). See item 333 for further guidance. The definition assists in interpreting the reference to the FCFC throughout the Act.

 

Extradition Act 1988

Item 335 - Section 5 (definition of eligible Federal Circuit Court Judge )

861.           Item 335 repeals the definition of ‘eligible Federal Circuit Court Judge’ in section 5 of the Extradition Act 1988 .  Section 5 provides definitions of expressions used in the Act.  This definition will be replaced by use of the term ‘eligible Judge’ throughout provisions in the Act under which Judges of the Federal Circuit Court of Australia can currently perform functions (see item 306).  This is a consequential amendment to reflect the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) .

Item 336 - Section 5

862.           Item 336 inserts a definition of ‘eligible Judge’ in section 5.  Section 5 provides definitions of expressions used in the Act.  An ‘eligible Judge’ will mean a Judge of the FCFC (Division 2). The expression ‘eligible Judge’ will be used throughout provisions in the Act under which FCFC (Division 2) Judges can perform functions.  This item operates with item 335, which removes the definition of ‘eligible Federal Circuit Court Judge’.

863.           The new expression ‘eligible Judge’ will not alter the nature of the functions which are conferred under the legislation on Federal Circuit Court Judges under the new title. 

Item 337 - Subsection 11(6)

864.           Item 337 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in subsection 11(6).  Section 11 provides for the modification of the Act in relation to certain countries, including clarifying the effect on the powers of magistrates in determining eligibility for surrender.  Subsection 11(6) provides that certain provisions in regulations applying to the Act to extradition countries are not to modify the Act by expanding the operation of subsection 19(2).  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under subsection 11(6).

Item 338 - Paragraph 12(1)(a)

865.           Item 338 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in paragraph 12(1)(a).  Subsection 12(1) provides for eligible Federal Circuit Court Judges to issue extradition arrest warrants in specified circumstances.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under subsection 12(1).

Item 339 - Subsections 12(3) and 14(1)

866.           Item 339 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in subsection 12(3).  Subsection 12(3) provides for the Attorney-General to direct an eligible Federal Circuit Court Judge to cancel an extradition arrest warrant in certain circumstances.  The expression ‘eligible Judge’ will be defined in the Act (see item 305).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under subsection 12(3).

867.           This item also replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in subsection 14(1).  Subsection 14(1) provides that following receipt of necessary affidavit evidence, an eligible Federal Circuit Court Judge may issue a warrant authorising specified police officers to enter premises, search and seize a place or thing.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under subsection 14(1).

Item 340 - Sections 15 and 15A

868.           Item 340 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ wherever it occurs in section 15.  Section 15 provides for the remanding in custody or on bail of a person arrested under an extradition arrest warrant.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under section 15.

869.           This item also replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ wherever it occurs in section 15A.  Section 15A sets out a process for certain categories of person who may elect to waive extradition.  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under section 15A.

Item 341 - Subsections 15B(1) and (4) and 16(1)

870.           Item 341 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in subsections 15B(1) and (4).  Subsections 15B(1) and (4) provide that where a magistrate or eligible Federal Circuit Court Judge has informed the Attorney-General that a person wishes to waive extradition and the Attorney-General determines that the person is not to be surrendered, the Attorney-General must, by notice in the statutory form, direct a magistrate or eligible Federal Circuit Court Judge to order the release of the person from custody.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment to reflect the new name of the Court and does not alter the functions which are conferred under section 15B.

871.           This item also replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in subsection 16(1).  Subsection 16(1) provides that the Attorney-General may provide notice to any magistrate or eligible Federal Circuit Court Judge that an extradition request from an extradition country in relation to a person has been received.  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under section 16.

Item 342 - Subsections 16A(2) and (3)

872.           Item 342 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in subsections 16A(2) and (3).  Subsections 16A(2) and (3) provide for the Attorney-General to give an amended notice to a magistrate or eligible Federal Circuit Court Judge in writing in the statutory form before the magistrate or eligible Federal Circuit Court Judge has determined in accordance with section 19 that the person is eligible for surrender in relation to the extradition offence/s.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2)  and does not alter the functions which are conferred under section 16A.

Item 343 - Section 17

873.           Item 343 replaces the references to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ wherever it occurs in section 17.  Section 17 provides for the release of a person from custody or discharge of the recognizances on which bail was granted where a person is on remand under section 15 and the Attorney-General decides either not to give a notice under subsection 16(1) in relation to the person or that for any other reason remand should cease.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under section 17.

Item 344 - Subsections 18(1), (3) and (4)

874.           Item 344 replaces the references to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in subsections 18(1), (3) and (4).  Section 18 provides a process for a person to consent to their surrender to the extradition country. The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under section 17.

Item 345 - Paragraph 19(1)(c)

875.           Item 345 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in paragraph 19(1)(c).  Subsection 19(1) provides for a magistrate or eligible Federal Circuit Court Judge to conduct proceedings to determine whether a person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender is sought by the extradition country.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under section 19.

Item 346 - Subsection 19(9A)

876.           Item 346 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in paragraph 19(9A).  Subsection 19(9A) provides that a magistrate or eligible Federal Circuit Court Judge must not release a person on bail under paragraph 19(9)(a) unless there are special circumstances justifying such release.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under section 19.

Item 347 - Subparagraphs 19A(1)(b)(ii) and 20(1)(a)(ii)

877.           Item 347 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in subparagraph 19A(1)(b)(ii).  Section 19A provides for a person to consent to being surrendered in respect of one or more extradition offences not specified in the notice given under subsection 16(1) in certain circumstances.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under section 19A.

878.           This item also replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in subparagraph 20(1)(a)(ii).  Section 20 provides for a person to consent to being surrendered in respect of one or more offences that are not extradition offences in certain circumstances.  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under section 20.

Item 348 - Subsection 21(1)

879.           Item 348 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in subsection 21(1).  Section 21 provides for the Federal Court to review an order of a magistrate or eligible Federal Circuit Court Judge made under subsection 19(9) or 19(10).  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment to reflect the new name of the Court and does not alter the operation of section 21.

Item 349 - Subsection 22(1) (paragraph (a) of the definition of eligible person )

880.           Item 349 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in paragraph (a) of the definition of ‘eligible person’ in subsection 22(1).  Section 22 provides for the Attorney-General to determine whether an eligible person is to be surrendered to the extradition country.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the operation of section 22.

Item 350 - Paragraphs 22(5)(a) and (b)

881.           Item 350 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in paragraphs 22(5)(a) and (b).  Subsection 22(5) provides for the Attorney-General to direct a magistrate or eligible Federal Circuit Court Judge to order an eligible person’s release or discharge of bail recognisances where the Attorney-General has determined that the person is not to be surrendered to the extradition country. The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under section 22.

Item 351 - Paragraph 26(1)(ca)

882.           Item 351 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in paragraph 26(1)(ca).  Subsection 26(1) provides requirements for a surrender warrant or temporary surrender warrant in relation to a person.  Paragraph 26(1)(ca) provides that if the person has been released on bail, the warrant shall allow a police officer to take the person into custody and bring the person before a magistrate or eligible Federal Circuit Court Judge  for the purposes of the discharge of the recognisances on which bail was granted.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under section 26.

Item 352 - Subsection 26(2A)

883.           Item 352 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in subsection 26(2A).  Subsection 26(2A) provides that where a person is brought before a magistrate or eligible Federal Circuit Court Judge as referred to in paragraph 26(1)(ca), the magistrate or Judge must order the discharge of the recognisances on which bail was granted and that the person be committed to prison to await surrender under the warrant.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under section 26.

Item 353 - Paragraphs 28(a) and 29(a)

884.           Item 353 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in paragraph 28(a).  Section 28 provides for the indorsement of a New Zealand warrant by a magistrate or eligible Federal Circuit Court Judge.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under section 28.

885.           This item also replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in paragraph 29(a).  Section 29 provides for the issue of a warrant for a person’s arrest where an application is made on behalf of New Zealand to a magistrate or eligible Federal Circuit Court Judge in certain circumstances.  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under section 29.

Item 354 - Subsection 31(1)

886.           Item 354 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in subsection 31(1).  Section 31 provides circumstances in which a magistrate or eligible Federal Circuit Court Judge may issue a search and seizure warrant in relation to a request for extradition from Australia to New Zealand.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under section 31.

Item 355 - Section 32

887.           Item 355 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in section 32.  Section 32 provides for a person who is arrested under an indorsed New Zealand warrant or under a provisional arrest warrant to be remanded in custody or on bail.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under section 32.

Item 356 - Paragraphs 33(c) and 34(1)(b)

888.           Item 356 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in paragraph 33(c).  Section 33 provides circumstances for the release from remand of a person in relation to a request for extradition from Australia to New Zealand.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2)  and does not alter the functions which are conferred under section 33.

889.           This item also replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in paragraph 34(1)(b).  Section 34 provides for the issuing of surrender warrants by a magistrate or eligible Federal Circuit Court Judge in certain circumstances.  The expression ‘eligible Judge’ will be defined in the Act (see item 305 of Schedule 2 to this Bill).  This is a consequential amendment to reflect the new name of the Court and does not alter the functions which are conferred under section 34.

Item 357 - Subsections 35(1) and (2)

890.           Item 357 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in subsections 35(1) and (2).  Subsection 35(1) provides for the review of an order made by a magistrate or eligible Federal Circuit Court Judge under section 34.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the operation of section 35.

Item 358 - Subsections 43(1), (2) and (3)

891.           Item 358 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in subsections 43(1), (2) and (3).  Section 43 provides for the taking of evidence by a magistrate or eligible Federal Circuit Court Judge proceedings to be conducted before review of an order made by a magistrate or eligible Federal Circuit Court Judge under section 34.  The expression ‘eligible Judge’ will be defined in the Act (see item 305 of Schedule 2 to this Bill).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under section 43.

Item 359 - Paragraph 45(1)(a)

892.           Item 359 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in paragraph 45(1)(a).  Section 45 provides a process for prosecuting a person in lieu of their extradition.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the operation of section 45.

Item 360 - Section 45A (heading)

893.           Item 360 replaces the reference to ‘Federal Circuit Court Judges’ with ‘Judges of the Federal Circuit and Family Court (Division 2)’ in the heading to section 45A.  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the operation of the section.

Item 361 - Subsections 45A(1) and (2)

894.           Item 361 replaces the references to ‘Federal Circuit Court of Australia’ with ‘Federal Circuit and Family Court (Division 2)’ in subsections 45A(1) and (2).  These are consequential amendments that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and do not alter the operation of those subsections.

Item 362 - Subsection 45A(2)

895.           Item 362 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in subsection 45A(2).  Section 45A provides for a Federal Circuit Court Judge to, with their consent, be nominated by the Attorney-General as an eligible judge for the purposes of the Extradition Act 1988 .  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment to that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the operation of the section.

896.           The validity of existing consents and nominations would not be affected by these amendments by virtue of item 17 of Schedule 10.

Item 363 - Subsection 45B (heading)

897.           Item 363 replaces the reference to ‘Federal Circuit Court Judges’ with ‘Judges of the Federal Circuit and Family Court (Division 2)’ in the heading to section 45A.  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the operation of section 45B.

Item 364 - Subsections 45B(1) and (3)

898.           Item 364 replaces the references to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in subsections 45B(1) and (3).  Section 45B provides that a function or power conferred on an eligible Federal Circuit Court Judge is conferred in a personal capacity and not as a court or a member of a court.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under section 45B.

Item 365 - Section 46A

899.           Item 365 replaces the references to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ wherever they occur in section 46A. Section 46A provides for how a notice is to be given under subsections 12(3), 15B(4), 16(1), 16A(2), 17(1) or 43(1) of the Act to an eligible Federal Circuit Court Judge.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the operation of the section.

Item 366 - Subparagraphs 48(1)(b)(iii) and (iv)

900.           Item 366 replaces the references to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in subparagraphs 48(1)(b)(iii) and (iv). Section 48 provides for the transit of a person in custody through Australia where the person is being surrendered to an extradition country or New Zealand from a third country.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under section 48.

Item 367 - Subsection 49(2)

901.           Item 367 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in subsection 49(2). Section 49 provides for the arrest of a person without warrant where there are reasonable grounds to believe that a person has escaped from custody authorised by the Act.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under section 49.

Item 368 - Section 49B

902.           Item 368 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in section 49B. Section 49B provides for the arrest of a person without warrant where there are reasonable grounds to believe that a person has contravened or is about to contravene a term or condition of a recognisance on which bail was granted under the Act.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the functions which are conferred under section 49A.

Item 369 - Paragraph 55(c)

903.           Item 369 replaces the references to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ wherever they occur in paragraph 55(c). Section 55 provides for the making of regulations under the Act including prescribing the practice and procedure in relation to the performance of magistrates and eligible Federal Circuit Court Judges’ functions under the Act.  The expression ‘eligible Judge’ will be defined in the Act (see item 336).  This is a consequential amendment that reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not alter the operation of section 55.

 

Fair Work Act 2009

Item 370 - Section 12 (definition of Federal Circuit Court )

904.           Item 370 repeals the definition for ‘Federal Circuit Court’, contained within section 12 of the Fair Work Act 2009 . Section 12 provides the definitions for terms contained within the Act. This definition is no longer required as the Federal Circuit Court will be continued as ‘Federal Circuit and Family Court of Australia (Division 2)’. Where references in the Act are made to the ‘Federal Circuit and Family Court of Australia (Division 2)’ the title of that Court is provided in full.

Item 371 - Subsections 417(3), 421(3) and 422(1)

905.           Item 371 amends subsections 417(3), 421(3) and 422(1) of the Act. These provisions relate to the powers of the Federal Court and the Federal Circuit Court to grant injunctions in the circumstances specified. Item 344 amends these subsections by removing references to the ‘Federal Circuit Court of Australia’ and replacing them with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively impact on the operation of these subsections.

Item 372 - Section 537

906.           Item 372 amends section 537, which provides a guide to the interpretation of Part 4-1 of the Act. Part 4-1 relates to civil remedies. Item 345 omits the paragraph of the guide, which refers to the Federal Circuit Court, and replaces it with a new paragraph. The new paragraph substitutes the reference to the ‘Federal Circuit Court’ with the ‘Federal Circuit and Family Court of Australia (Division 2)’. This reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 373 - Subsection 539(2) (table)

907.           Item 373 amends subsection 539(2), which provides a table outlining standing, jurisdiction and maximum penalties in the context of orders made under the specified sections of the Act. This item removes all references to the ‘Federal Circuit Court’ in the table, and replaces them with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively impact on the operation of this subsection.

Item 374 - Section 543

908.           Item 375 amends section 543, which provides that a national system employer or a national system employee may apply to the Federal Court or the Federal Circuit Court to enforce an entitlement of the employer or employee arising under subsection 542(1) . This item removes the reference to the ‘Federal Circuit Court of Australia’ and replaces it with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively impact on the operation of this section.

Item 375 - Subsection 545(1) (heading)

909.           Item 375 amends the heading to subsection 545(1) by replacing the reference to ‘Federal Circuit Court’ with ‘Federal Circuit and Family Court of Australia (Division 2)’.  The complete heading to the subsection now reads ‘Federal Court and Federal Circuit and Family Court of Australia (Division 2)’ appropriately reflecting the continuation of the Federal Circuit Court under the new name.

Item 376 - Subsections 545(1) and (2) and 546(1)

910.           Item 376 amends subsections 545(1) and (2) and 546(1), which relate to orders the Court can make in the circumstances specified. This item amends subsections by removing the references to the ‘Federal Circuit Court’ and replacing them with ‘Federal Circuit and Family Court of Australia (Division 2)’. The item allows these subsections to appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2), and does not substantively impact on the operation of these subsections.

Item 377 - Paragraph 548(1)(a)

911.           Item 377 amends paragraph 548(1)(a), which deals with small claims procedure. This item removes the reference to the ‘Federal Circuit Court of Australia’ and replaces it with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively impact on the operation of this section.

Item 378 - Paragraph 558C(3)(b)

912.           Item 378 amends paragraph 558C(3)(b) by repealing it and replacing it with ‘the Federal Circuit and Family Court of Australia (Division 2)’.  The paragraph currently enables proceedings to be instituted in the Federal Circuit Court and the amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively impact on the operation of this section.

Item 379 - Section 560

913.           Item 379 repeals section 560 and replaces it with a new section. Section 560 currently provides a guide to the interpretation of Part 4-2 of the Act, which relates to jurisdiction and powers of courts. Item 352 repeals the section and substitutes a new guide which replaces all references to the ‘Federal Circuit Court’ with ‘Federal Circuit and Family Court of Australia (Division 2)’. The new section does not substantively depart from the existing section, and simply makes changes to reflect the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 380 - Paragraphs 563(f), (g) and (h)

914.           Item 380 amends paragraphs 563(f), (g) and (h). These paragraphs provide that the jurisdiction conferred on the Federal Court under section 562 is to be exercised in the Fair Work Division of the Federal Court if:

·                      an appeal is instituted in the Federal Court from a judgment of the Federal Circuit Court or a court of a State or Territory in a matter arising under this Act; or

·                      proceedings in relation to a matter arising under this Act are transferred to the Federal Court from the Federal Circuit Court; or

·                      the Federal Circuit Court or a court of a State or Territory states a case or reserves a question for the consideration of the Federal Court in a matter arising under this Act.

This item removes all references to the ‘Federal Circuit Court’ and replaces them with ‘Federal Circuit and Family Court of Australia (Division 2)’. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of the paragraphs.

Item 381 - Division 3 of Part 4-2 of Chapter 4 (heading)

915.           Item 381 amends the heading to Division 3 of Part 4-2 of Chapter 4. Item 354 replaces the reference to ‘Federal Circuit Court’ with ‘Federal Circuit and Family Court of Australia (Division 2)’. The heading will now read ‘Division 3 — Jurisdiction and powers of the Federal Circuit and Family Court of Australia (Division 2)’.

Item 382 - Section 566 (heading)

916.           Item 382 amends the heading to section 566. Item 355 replaces the reference to ‘Federal Circuit Court’ with ‘Federal Circuit and Family Court of Australia (Division 2)’. The heading will now read ‘Conferring jurisdiction on the Federal Circuit and Family Court of Australia (Division 2)’.

Item 383 - Section 566

917.           Item 383 amends section 566. Section 566 provides that jurisdiction is conferred on the Federal Circuit Court in relation to any civil matter arising under this Act. This item removes the reference to the ‘Federal Circuit Court’ and replaces it with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment reflects the continuation of the Federal Circuit Court as the FCFC (Division 2), and does not substantively alter the operation of this section.

Item 384 - Section 567 (heading)

918.           Item 384 amends the heading to section 567 by removing the reference to the ‘Federal Circuit Court’ and replacing it with ‘Federal Circuit and Family Court of Australia (Division 2)’. The heading will now read ‘Exercising jurisdiction in the Fair Work Division of the Federal Circuit and Family Court of Australia (Division 2)’.

Item 385 - Section 567

919.           Item 385 amends section 567. Section 567 provides the circumstances for when jurisdiction conferred on the Federal Circuit Court under section 566 is to be exercised in the Fair Work Division of the Federal Circuit Court. This item omits the words ‘ Federal Circuit Court under section 566 is to be exercised in the Fair Work Division of the Federal Circuit Court’ from the section and replaces them with ‘Federal Circuit and Family Court of Australia (Division 2) under section 566 is to be exercised in the Fair Work Division of the Court’. Reference to ‘the Court’ means the FCFC (Division 2). This amendment reflects the continuation of the Federal Circuit Court as the FCFC (Division 2), and does not substantively alter the operation of this section.

Item 386 - Paragraph 567(a)

920.           Item 386 amends paragraph 567(a), which provides that jurisdiction conferred on the Federal Circuit Court under section 566 is to be exercised in the Fair Work Division of the Federal Circuit Court if an application is made to the Federal Circuit Court under the Act. This item amends this section by removing the words ‘Federal Circuit’. This amendment flows from the amendments made in the item above, and reference to ‘the Court’ in paragraph (a) means the FCFC (Division 2). This amendment reflects the continuation of the Federal Circuit Court as the FCFC (Division 2), and does not substantively alter the operation of the paragraph.

Item 387 - Paragraph 567(b)

921.           Item 387 amends paragraph 567(b), which provides that jurisdiction conferred on the Federal Circuit Court under section 566 is to be exercised in the Fair Work Division of the Federal Circuit Court if an injunction is sought under section 15 of the Federal Circuit Court Act in relation to a matter arising under this Act. This item omits the words ‘section 15 of the Federal Circuit Court of Australia Act 1999 ’ and replaces them with ‘section 108 of the Federal Circuit and Family Court of Australia Act 2018 ’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and updates the legislative reference to the correct section of the Federal Circuit and Family Court of Australia Act 2018 . The amendment does not substantively alter the operation of the paragraph.

Item 388 - Paragraph 567(c)

922.           Item 388 amends paragraph 567(c), which provides that jurisdiction conferred on the Federal Circuit Court under section 566 is to be exercised in the Fair Work Division of the Federal Circuit Court if a declaration is sought under section 16 of the Federal Circuit Court Act in relation to a matter arising under the Act. Item 361 omits the words ‘section 16 of the Federal Circuit Court of Australia Act 1999’ and replaces them with ‘section 109 of the Federal Circuit and Family Court of Australia Act 2018’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and updates the legislative reference to the correct section of the Federal Circuit and Family Court of Australia Act 2018 . The amendment does not substantively alter the operation of the paragraph.

Item 389 - Paragraph 567(d)

923.           Item 389 amends paragraph 567(d), which provides that jurisdiction conferred on the Federal Circuit Court under section 566 is to be exercised in the Fair Work Division of the Federal Circuit Court if proceedings in relation to a matter arising under the Act are transferred to the Federal Circuit Court from the Federal Court. This item omits the words ‘Federal Circuit Court’ and replaces them with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment reflects the ongoing operation of the Federal Circuit Court as the FCFC (Division 2), and does not substantively alter the operation of this section.

Item 390 - Paragraph 567(e)

924.           Item 390 amends paragraph 567(e), which provides that jurisdiction conferred on the Federal Circuit Court under section 566 is to be exercised in the Fair Work Division of the Federal Circuit Court if the High Court remits a matter arising under this Act to the Federal Circuit Court. This item omits the words ‘Federal Circuit Court’ and replaces them with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment reflects the ongoing operation of the Federal Circuit Court as the FCFC (Division 2), and does not substantively alter the operation of this section.

Item 391 - Section 568

925.           Item 391 repeals section 568 and replaces it with a new section. The heading of section 568 provides there is no limitation on Federal Circuit Court’s powers. The body of the section provides that ‘to avoid doubt, nothing in this Act limits the Federal Circuit Court’s powers under section 14, 15 or 16 of the Federal Circuit Court of Australia Act 1999 ’. This item repeals this section and substitutes it with a new section. The new heading to the new section provides there is ‘No limitation on powers of the Federal Circuit and Family Court of Australia (Division 2)’. The body of the section provides ‘to avoid doubt, nothing in this Act limits the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 107, 108 or 109 of the Federal Circuit and Family Court of Australia Act 2018’ . This amendment reflects the updated nomenclature and provides the legislative reference to the correct sections of the Federal Circuit and Family Court of Australia Act 2018 . The amendment does not substantively depart from the operation of the existing section.

Item 392 - Paragraph 576(2)(ca)

926.           Item 392 repeals paragraph 576(2)(ca) and substitutes it with a new paragraph. The new paragraph 576(2)(ca) provides that the Fair Work Commission (FWC) has the following functions: mediating any proceedings, part of proceedings or matter arising out of any proceedings that, under section 53A of the Federal Court Act or section 136 of the Federal Circuit and Family Court of Australia Act 2018 , have been referred by the Fair Work Division of the Federal Court or FCFC (Division 2) to the FWC for mediation. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and provides the legislative reference to the correct section of the Federal Circuit and Family Court of Australia Act 2018 . The new paragraph does not substantively depart from the operation of the existing paragraph .

Item 393 - Subsections 627(1A) and (2A)

927.           Item 393 amends subsections 627(1A) and (2A). Section 627 relates to the qualifications for appointment of FWC members. Subsection 627(1A) currently provides that paragraph 627(1)(a) does not apply to a person who is a Judge of the Federal Circuit Court. Subsection 627(2A) provides that subparagraph 627(2)(a)(i) does not apply to a person who is a Judge of the Federal Circuit Court. This item omits the references to the ‘Federal Circuit Court’ in both subsections and replaces them with ‘Federal Circuit and Family Court of Australia (Division 2)’. Item 366 does not substantively impact on the current operation of these subsections — it reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2).

Item 394 - Section 653A (heading)

928.           Item 394 amends the heading to section 653A. This item removes the reference to the ‘Federal Circuit Court’ and replaces it with ‘Federal Circuit and Family Court of Australia (Division 2)’. The heading will now read ‘Arrangements with the Federal Court and the Federal Circuit and Family Law Court of Australia (Division 2)’.

Item 395 - Section 653A

929.           Item 395 amends section 653A, which provides that the General Manager may make a written arrangement with the Federal Court or the Federal Circuit Court for the FWC to provide administrative support to the Fair Work Division of the Court. This item removes the reference to the ‘Federal Circuit Court’ and replaces it with ‘Federal Circuit and Family court of Australia (Division 2)’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively impact the operation of the section.

Item 396 - Subsection 715(6)

930.           Item 396 amends subsection 715(6), which provides that if the Fair Work Ombudsman considers that the person who gave the undertaking (as provided for in subsection 715(2)) has contravened any of its terms, the Fair Work Ombudsman may apply to the Federal Court, the Federal Circuit Court or an eligible State or Territory Court for an order under subsection (7). Item 369 removes the reference to the ‘Federal Circuit Court’ from the body of the section and replaces it with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively impact on the operation of this section.

Item 397 - Paragraph 716(3)(e)

931.           Item 397 amends paragraph 716(3)(e), which provides that the notice (as provided for in subsection 716(2)) must explain that the person may apply to the Federal Court, the Federal Circuit Court or an eligible State or Territory Court for a review of the notice on either or both of the following grounds: (i) the person has not committed a contravention set out in the notice; (ii) the notice does not comply with subsection (2) or this subsection. This item amends this subsection by removing the reference to the ‘Federal Circuit Court’ and replacing it with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively impact on the operation of this section.

Item 398 - Subsection 717(1)

932.           Item 398 amends subsection 717(1), which provides that a person who has been given a notice under section 716 may apply to the Federal Court, the Federal Circuit Court or an eligible State or Territory Court for a review of the notice on either or both of the following grounds: (a) the person has not committed a contravention set out in the notice; (b) the notice does not comply with subsection 716(2) or (3). This item removes the reference to the ‘Federal Circuit Court’ and replaces it with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively impact on the operation of this section.

Item 399 - Paragraphs 789CD(3)(b) and 789CE(4)(b)

933.           Item 399 amends paragraphs 789CD(3)(b) and 789CE(4)(b). Paragraph 789CD(3)(b) provides that the proceedings under subsection 789CD(1) may be commenced in the Federal Circuit Court. Paragraph 789CE(4)(b) provides that the entity may, in accordance with section 789CE, commence proceedings in the Federal Circuit Court against the responsible person for payment to the entity of the recoverable amount. This item removes the references to the ‘Federal Circuit Court ’ and replaces them with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively impact the operation of this section.

 

Fair Work (Registered Organisations) Act 2009

Item 400 - Section 6 (definition of Federal Circuit Court )

934.           Item 400 repeals the definition of ‘Federal Circuit Court’ in section (6) of the Fair Work (Registered Organisations) Act 2009 . Section 6 provides definitions to assist in interpreting the Act. The definition is no longer required as the Federal Circuit Court will be continued as ‘Federal Circuit and Family Court of Australia (Division 2)’. Where references in the Act are made to the ‘Federal Circuit and Family Court of Australia (Division 2)’, the title of that Court is provided in full.

Item 401 - Subsections 337BB(1) and (6)

935.           Item 401 amends subsections 337BB(1) and (6). Both subsections provide the Federal Court or Federal Circuit Court with the power to make orders in specified circumstances. This item amends these subsections to remove the references to the ‘Federal Circuit Court’ and replace them with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively impact on the operation of this section.

Item 402 - Section 353A (heading)

936.           Item 402 amends the heading to section 353A by replacing the reference to the ‘Federal Circuit Court’ with ‘Federal Circuit and Family Court of Australia (Division 2)’. The heading will now read ‘Representation in proceedings in the Fair Work Division of the Federal Court and Federal Circuit and Family Court of Australia (Division 2)’.

Item 403 - Subsection 353A(1)

937.           Item 403 amends subsection 353A(1). Subsection 353A(1) currently provides that section 353A applies in relation to a proceeding in the Fair Work Division of the Federal Court, or of the Federal Circuit Court, other than   a proceeding in relation to an appeal under section 565 of the Fair Work Act or   a proceeding in relation to an offence against a law of the Commonwealth. This item replaces the reference to the ‘Federal Circuit Court’ with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively impact on the operation of the subsection.

 

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Item 404 - Subitem 16(1) of Schedule 16 (table)

938.           Item 404 amends subitem 16(1) of Schedule 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 , which provides a table outlining standing, jurisdiction and maximum penalties for the purposes of item 16 of Schedule 16. Item 404 removes references to the ‘Federal Circuit Court’ wherever they occur within the table, and substitutes them with ‘Federal Circuit and Family Court of Australia (Division 2)’. The amendments reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively impact on the operation of the subitem.

Item 405 - Item 17 of Schedule 16

939.           Item 405 amends item 17 of Schedule 16, which provides that the Federal Court and the Federal Circuit Court may not make an order under Division 2 of Part 4-1 granting an injunction, or an interim injunction, to prevent, stop or remedy the effects of a contravention of certain instruments or legislation. Item 405 removes the reference to the ‘Federal Circuit Court’ and replaces it with ‘Federal Circuit and Family Court of Australia Division 2)’. This amendment reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively impact on the operation of this item.

Item 406 - Paragraphs 22(f), (g) and (h) of Schedule 17

940.           Item 406 amends paragraphs 22(f), (g) and (h) of Schedule 17. Item 22 provides the circumstances under which the jurisdiction conferred on the Federal Court under item 21 is to be exercised in the Fair Work Division of the Federal Court. Item 406 removes the references to the ‘Federal Circuit Court’ in paragraphs 22(f), (g) and (h) and replaces those references with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively impact on the operation of the paragraphs.

Item 407 - Item 25 of Schedule 17 (heading)

941.           Item 407 amends the heading to item 25 of Schedule 17. Item 407 removes the reference to the ‘Federal Circuit Court’ and replaces it with ‘Federal Circuit and Family Court of Australia (Division 2)’. The heading will now read ‘Conferring jurisdiction on the Federal Circuit and Family Court of Australia (Division 2)’.

Item 408 - Item 25 of Schedule 17

942.           Item 408 amends item 25 of Schedule 17. Item 25 of Schedule 17 provides that jurisdiction is conferred on the Federal Circuit Court in relation to any civil matter arising under the Act or the Workplace Relations Act 1996 as it continues to apply because of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 . Item 408 removes the reference to the ‘Federal Circuit Court’ and replaces it with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively impact on the operation of this item.

Item 409 - Heading to item 26 of Schedule 17

943.           Item 409 amends the heading to item 26 of Schedule 17. Item 409 removes the reference to the ‘Federal Circuit Court’ and replaces it with ‘Federal Circuit and Family Court of Australia (Division 2)’. The heading will now read ‘Exercising jurisdiction in the Fair Work Division of the Federal Circuit and Family Court of Australia (Division 2)’.

Item 410 - Item 26 of Schedule 17

944.           Item 410 amends item 26 of Schedule 17. Item 26 of Schedule 17 outlines the circumstances for when jurisdiction conferred on the Federal Circuit Court under item 25 is to be exercised in the Fair Work Division of the Federal Circuit Court. Item 410 omits the words ‘Federal Circuit Court under item 25 is to be exercised in the Fair Work Division of the Federal Circuit Court’ and replaces them with ‘Federal Circuit and Family Court of Australia (Division 2) under item 25 is to be exercised in the Fair Work Division of the Court’. Reference to ‘the Court’ means the FCFC (Division 2). This amendment reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively impact on the operation of this section.

Item 411 - Paragraph 26(a) of Schedule 17

945.           Item 411 amends paragraph 26(a) of Schedule 17, which provides that jurisdiction conferred on the Federal Circuit Court under item 25 is to be exercised in the Fair Work Division of the Federal Circuit Court if an application is made to the Federal Circuit Court under the Act or the Workplace Relations Act 1996 as it continues to apply because of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 . Following the change made by item 410 above, item 411 now amends paragraph 26(a) of Schedule 17 to remove the words ‘Federal Circuit’. The new paragraph 26(a) reads ‘ an application is made to the Court under this Act or the WR Act as it continues to apply because of this Act’. This amendment ensures that the correct court is referenced wherever appropriate, to reflect the change to the name of the Federal Circuit Court and its ongoing operation as the FCFC (Division 2).

Item 412 - Paragraph 26(b) of Schedule 17

946.           Item 412 amends paragraph 26(b) of Schedule 17, which provides that jurisdiction conferred on the Federal Circuit Court under item 25 is to be exercised in the Fair Work Division of the Federal Circuit Court if an injunction is sought under section 15 of the Federal Circuit Court Act  in relation to a matter arising under Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 or the Workplace Relations Act 1996 as it continues to apply because of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 . Item 412 amends paragraph 26(b) to omit the words ‘ section 15 of the Federal Circuit Court of Australia Act 1999’ and substitute them with section 108 of the Federal Circuit and Family Court of Australia Act 2018’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and provides the legislative reference to the correct section of the Federal Circuit and Family Court of Australia Act 2018 . The new paragraph does not substantively impact on the operation of the paragraph .

Item 413 - Paragraph 26(c) of Schedule 17

947.           Item 413 amends paragraph 26(c) of Schedule 17, which provides that jurisdiction conferred on the Federal Circuit Court under item 25 is to be exercised in the Fair Work Division of the Federal Circuit Court if a declaration is sought under section 16 of the Federal Circuit Court Act  in relation to a matter arising under Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 or the Workplace Relations Act 1996 as it continues to apply because of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. Item 413 amends paragraph 26(c) of Schedule 17 to omit the words ‘ section 16 of the Federal Circuit Court of Australia Act 1999’ and substitute them with section 109 of the Federal Circuit and Family Court of Australia Act 2018’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and provides the legislative reference to the correct section of the Federal Circuit and Family Court of Australia Act 2018 . The new paragraph does not substantively impact on the operation of the paragraph .

Item 414 - Paragraph 26(d) of Schedule 17

948.           Item 414 amends paragraph 26(d) of Schedule 17, which provides that jurisdiction conferred on the Federal Circuit Court under item 25 is to be exercised in the Fair Work Division of the Federal Circuit Court if proceedings in relation to a matter arising under the Act, or the Workplace Relations Act 1996 as it continues to apply because of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 , are transferred to the Federal Circuit Court from the Federal Court .  Item 414 removes the reference to the ‘Federal Circuit Court’ and replaces it with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment ensures that the correct court is referenced wherever appropriate, to reflect the change to the name of the Federal Circuit Court and its ongoing operation as the FCFC (Division 2).

Item 415 - Paragraph 26(e) of Schedule 17

949.           Item 415 amends paragraph 26(e) of Schedule 17, which provides that jurisdiction conferred on the Federal Circuit Court under item 25 is to be exercised in the Fair Work Division of the Federal Circuit Court if the High Court remits a matter arising under the Act or the Workplace Relations Act 1996 as it continues to apply because of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 to the Federal Circuit Court. Item 415 removes the reference to the ‘Federal Circuit Court’ and replaces it with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment ensures that the correct court is referenced wherever appropriate, to reflect the change to the name of the Federal Circuit Court and its ongoing operation as the FCFC (Division 2).

Item 416 - Item 27 of Schedule 17

950.           Item 416 repeals item 27 of Schedule 17 and replaces it with a new item. The heading of item 27 of Schedule 27 currently provides ‘ No limitation on Federal Circuit Court’s powers’. The body of item 27 currently provides ‘to avoid doubt, nothing in this Act limits the Federal Circuit Court’s powers under section 14, 15 or 16 of the Federal Circuit Court of Australia Act 1999 .’ The heading of new item 27 reads ‘No limitation on powers of the Federal Circuit and Family Court of Australia (Division 2)’. The body of new item 27 provides ‘ to avoid doubt, nothing in this Act limits the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 107, 108 or 109 of the Federal Circuit and Family Court of Australia Act 2018 .’ The new item appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and provides the legislative reference to the correct sections of the Federal Circuit and Family Court of Australia Act 2018 . The new item does not substantively depart from the operation of the existing item.

 

Family Court of Western Australia (Orders of Registrars) Act 1997

Item 417 - Section 11

951.           Item 417 amends section 11 of the Family Court of Western Australia (Orders of Registrars) Act 1997. Section 11 currently provides that ‘Nothing in this Act applies to an order declared to be invalid by the Full Court of the Family Court before the commencement of the corresponding Western Australian Act’. Item 417 clarifies that section 11 relates to the Family Court of Australia by replacing ‘Family Court’ with ‘Family Court of Australia’. The provision does not need to be amended to replace the reference to the Family Court with the FCFC (Division 1) as the section relates to orders declared to be invalid by the Full Court of the Family Court before the commencement of the relevant Western Australian legislation.

Item 418 - Subsection 12(1)

952.           Item 418 amends section 12(1), which currently confers jurisdiction on the Family Court and the Supreme Court of the Northern Territory. Item 418 omits the first occurrence of ‘Family Court’ and substitutes it with ‘Family Law Appeal Division of the Federal Court of Australia, the Federal Circuit and Family Court of Australia (Division 1)’. This would have the effect of conferring jurisdiction on the Family Law Appeal Division and the FCFC (Division 1) for matters arising under the Family Court of Western Australia (Orders of Registrars) Act 1997.

 

Federal Proceedings (Costs) Act 1981

Item 419 - Subsection 3(1) (definition of Family Court )

953.           Item 419 repeals the definition of ‘Family Court’ from section 3(1) of the Federal Proceedings (Costs) Act 1981 .

Item 420- Subsection 3(1) (paragraph (d) of the definition of Federal appeal )

954.           Item 420 omits ‘Family Court’ from paragraph (d) of the definition of ‘Federal appeal’ in subsection 3(1). It instead substitutes ‘Family Law Appeal Division of the Federal Court’. This amendment appropriately reflects the creation of the new Family Law Appeal Division in the Federal Court.

Item 421 - Subsection 3(1) (paragraph (fa) of the definition of Federal appeal )

955.           Item 421 repeals paragraph (fa) of the definition of ‘Federal appeal’ in subsection 3(1). Paragraph (fa) currently provides that ‘federal appeal’ means ‘an appeal to the Federal Court from a judgment of the Federal Circuit Court’. Item 421 instead substitutes the following two meanings: new paragraph (fa) provides that a ‘federal appeal’ will mean an appeal to the Federal Court from a judgment of the Federal Circuit and Family Court of Australia (Division 2)’ while new paragraph (fb) provides that a ‘federal appeal’ will mean an appeal to the Family Law Appeal Division of the Federal Court from a judgment of: ‘(i) the Federal Circuit and Family Court of Australia; or (ii) a Family Court of a State; or (iii) a Supreme Court of a State or Territory (including the Northern Territory) constituted by a single Judge’.

Item 422 - Subsection 3(1) (subparagraph (ga)(ii) of the definition of Federal appeal )

956.           Item 422 omits ‘Federal Circuit Court’ from subparagraph (ga)(ii) of the definition of ‘Federal appeal’ in subsection 3(1). It instead substitutes ‘Federal Circuit and Family Court of Australia (Division 2). This amendment appropriately reflects the creation of the FCFC.

Item 423 - Subsection 3(1) (paragraphs (j) to (k) of the definition of Federal appeal )

957.           Item 423 repeals paragraphs (j) to (k) of the definition of ‘Federal appeal’ in subsection 3(1). Currently, those paragraphs provide that a federal appeal is: an appeal to the Full Court of the Family Court from a judgment of the Family Court constituted otherwise than as a Full Court (paragraph (j)); an appeal to the Family Court from a judgment of the Federal Circuit Court (paragraph (ja)); and an appeal to the Family Court from a judgment of a court of a State, a court of an internal Territory (including the Northern Territory) or a court of Norfolk Island (paragraph (k)).

958.           Item 423 instead substitutes the following definition of ‘Federal appeal’ into new paragraph ‘(j): an appeal to the Federal Circuit and Family Court of Australia from a judgment of: (i) a court of summary jurisdiction of a State; or (ii) a court of summary jurisdiction of an internal Territory (including the Northern Territory); or (iii) a court of summary jurisdiction of Norfolk Island’. This amendment reflects the fact that, as a result of the creation of the Family Law Appeal Division in the Federal Court, the FCFC will only hear appeals from decisions of courts of summary jurisdiction.

Item 424 - Subsection 3(1)

959.           Item 424 inserts a definition of ‘Federal Circuit and Family Court of Australia’ into subsection 3(1) to ensure that a reference to the FCFC is a reference to either the FCFC (Division 1) or FCFC (Division 2).

Item 425 - Subsection 3(1) (definition of Federal Circuit Court )

960.           Item 425 repeals the definition of ‘Federal Circuit Court’ from subsection 3(1).

Item 426 - Paragraph 9(1)(a)

961.           Item 426 omits the reference to ‘(j), (ja) or (k)’ in paragraph 9(1)(a) of the Federal Proceedings (Costs) Act 1981 given they will be repealed by item 423. Paragraph 9(1)(a) relates to costs certificates for federal appeals in family law proceedings. Item 426 instead substitutes ‘(fb) or (j)’ which are references to new paragraphs inserted by items 421 and 423.

Item 427 - Subsection 10(1)

962.           Item 427 omits the reference to the ‘Family Court, the Federal Circuit Court’ from subsection 10(1) and instead substitutes ‘the Federal Circuit and Family Court of Australia’. The amendment appropriately reflects the continuation of the Family Court and the Federal Circuit Court as the FCFC (Division 1) and FCFC (Division 2), respectively.

Item 428 - Schedule (table item dealing with the Family Court)

963.           Item 428 repeals the table item dealing with the Family Court in the schedule. The schedule sets out the prescribed maximum amount for a payment under the Act. Item 428 retains the amount listed for the Family Court (being $2000) when substituting in a reference to the ‘Federal Circuit and Family Court of Australia’ into the table. The amendment appropriately reflects the continuation of the Family Court and the Federal Circuit Court as the FCFC (Division 1) and FCFC (Division 2), respectively.

 

Foreign Acquisitions and Takeovers Act 1975

Item 429 - Paragraph 99(3)(b)

964.           Item 429 amends paragraph 99(3)(b) of the Foreign Acquisitions and Takeovers Act 1975 . For the purposes of Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 , subsection 99(3) of the Foreign Acquisitions and Takeovers Act 1975 prescribes the relevant courts in relation to the civil penalty provisions contained in the Foreign Acquisitions and Takeovers Act 1975 . Existing paragraph 99(3)(b) prescribes the Federal Circuit Court of Australia. This item repeals this paragraph and replaces it with new paragraph (b) which prescribes the Federal Circuit and Family Court (Division 2). This amendment reflects the continuation of the Federal Circuit Court of Australia as the FCFC (Division 2).

Item 430 - Subsection 132(1)

965.           Item 430 amends section 132, which relates to the powers of the courts to enforce the Treasurer’s orders. Currently, subsection 132(1) provides that, subject to the criteria in the subsection, the Federal Court, the Federal Circuit Court or the Supreme Court of a State or Territory may make orders. Item 402 amends section 132 to replace the reference to the Federal Circuit Court with the FCFC (Division 2). This amendment reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

 

Foreign Evidence Act 1994

Item 431 - Subsection 3(1) (paragraph (b) of the definition of superior court )

966.           Item 431 omits ‘Family Court of Australia’ from paragraph (b) of the definition of ‘superior court’ in subsection (3)(1) of the Foreign Evidence Act 1994 . It instead substitutes ‘Federal Circuit and Family Court of Australia (Division 1)’. Under the new court structure, the FCFC (Division 1) will continue to be a superior court of record. The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and the continuation of the Court as a superior court.

Item 432 - Division 2 of Part 2 (heading)

967.           Item 432 omits ‘Federal Circuit Court of Australia’ from the heading of Division 2 of Part 2, which relates to the examination of witnesses abroad. It instead substitutes ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment reflects the continuation of the Federal Circuit Court of Australia as the FCFC (Division 2).

Item 433 - Section 9A (heading)

968.           Item 433 omits ‘Federal Circuit Court’ from the heading of section 9A, which relates to orders for taking evidence abroad.  It instead substitutes ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment reflects the continuation of the Federal Circuit Court of Australia as the FCFC (Division 2).

Item 434 - Subsection 9A(1)

969.           Item 434 repeals subsection 9A(1) which relates to orders for taking evidence abroad in child support or family law matters. It instead substitutes a new subsection that has replaced references to the ‘Family Court of Australia’ with the ‘Federal Circuit and Family Court of Australia (Division 1)’, and references to the ‘Federal Circuit Court of Australia’ with the ‘Federal Circuit and Family Court of Australia (Division 2)’. This new subsection appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 435 - Subsection 9A(2)

970.           Item 435 omits ‘Federal Circuit Court of Australia’ from subsection 9A(2) which relates to orders for taking evidence abroad in matters other than child support or family law matters. It instead substitutes ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 436 - Paragraph 11(1)(a)

971.           Item 436 omits ‘Family Court of Australia’ from paragraph 11(1)(a) which relates to orders for taking evidence abroad in family law matters. It instead substitutes ‘Federal Circuit and Family Court of Australia (Division 1)’. This amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1).

Item 437 - Subsection 11(2) (paragraph (a) of the definition of appropriate court )

972.           Item 437 omits ‘Family Court of Australia’ from the definition of ‘appropriate court’ in subsection 11(2) which relates to orders for taking evidence abroad in family law matters. It instead substitutes ‘Federal Circuit and Family Court of Australia (Division 1)’. This amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1).

Item 438 - Subsection 12(1)

973.           Item 438 omits ‘Federal Circuit Court of Australia’ from subsection 12(1) which relates to the use of evidence taken in an examination. It instead substitutes ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 439 - Paragraph 12(2)(a)

974.           Item 439 omits ‘Federal Circuit Court of Australia’s satisfaction or the inferior court’s satisfaction’ from paragraph 12(2)(a) which relates to the use of evidence taken in an examination. It instead substitutes ‘satisfaction of the Federal Circuit and Family Court of Australia (Division 2) or the inferior court’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 440 - Subsection 15(1)

975.           Item 440 omits ‘Federal Circuit Court of Australia’ from subsection 15(1). Subsection 15(1) relates to a court’s power to exclude evidence obtained under Part 2 from the proceeding, even if it is otherwise permissible. Part 2 relates to the examination of witnesses abroad. Item 440 instead substitutes ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

 

Freedom of Information Act 1982

Item 441 - Subsection 5(1B) (heading)

976.           Item 441 omits ‘Family Court Judges’ from the heading to subsection 5(1B) of the Freedom of Information Act 1982 . Subsection 5(1B) provides that the Freedom of Information Act 1982 does not apply to any request for access to a document of a court (other than a court of Norfolk Island) exercising powers or performing functions under paragraph 21B(1A)(c) and subclause 21B(1B) of the Family Law Act , or assisting in exercising those powers or performing those functions.  Item 441 instead substitutes ‘Judges of the Federal Circuit and Family Court of Australia (Division 1)’. This amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1).

Item 442 - Paragraph 5(1B)(a)

977.           Item 442 repeals paragraph 5(1B)(a). Subsection 5(1B)(a) provides that the Freedom of Information Act 1982 does not apply to any request for access to a document of a court (other than a court of Norfolk Island) exercising powers or performing functions under paragraph 21B(1A)(c) and subclause 21B(1B) of the Family Law Act .   Item 442 instead substitutes new paragraphs under the Federal Circuit and Family Court of Australia Act 2018 so that the Freedom of Information Act 1982 does not apply to any request for access to a document of a court (other than a court of Norfolk Island) exercising powers or performing functions under paragraph 31(2)(d) and subclause 32(1) of the Federal Circuit and Family Court of Australia Act 2018 . This amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1).

Item 443 - Subsection 5(1C) (heading)

978.           Item 443 omits ‘Federal Circuit Court of Australia’ from the heading to subsection 5(1C) of the Freedom of Information Act 1982 . Subsection 5(1C) provides that the Act does not apply to any request for access to a document of a court (other than a court of Norfolk Island) that relates to complaint handler (or a body consisting of complaint handlers) exercising powers or performing functions under paragraph 12(3)(c) and subclause 12(3AA) of the Federal Magistrates Act 1999 or assisting in exercising those powers or performing those functions.  Item 443 instead substitutes ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 444 - Paragraph 5(1C)(a)

979.           Item 444 repeals paragraph 5(1C)(a). Subsection 5(1C)(a) provides that the Act does not apply to any request for access to a document of a court (other than a court of Norfolk Island) that relates to complaint handler (or a body consisting of complaint handlers) exercising powers or performing functions under paragraph 12(3)(c) and subclause 12(3AA) of the Federal Magistrates Act 1999 .  Item 443 instead substitutes new paragraphs under the Federal Circuit and Family Court of Australia Act 2018 so that the Freedom of Information Act 1982 does not apply to any request for access to a document of a court (other than a court of Norfolk Island) that relates to complaint handler (or a body consisting of complaint handlers) exercising powers or performing functions under paragraph 112(2)(d) and subsection 113(1) of the Federal Circuit and Family Court of Australia Act 2018 . This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 445 - Subsections 64(7) and (8) and 67(4) and (5)

980.           Item 445 omits ‘Federal Circuit Court of Australia’ (wherever occurring) from subsections 64(7) and (8) (which relates to the production of documents) and 67(4) and (5) (which currently provides for the automatic stay of an AAT decision to give access to a document where an agency or Minister institutes an appeal in the Federal Court against that decision.) Item 445 instead substitutes ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Great Barrier Reef Marine Park Amendment (Authority Governance and Other Matters) Act 2018

Item 446 - Paragraph 10(2)(b) of Schedule 2

981.           Item 446 replaces a reference to the ‘Federal Circuit Court of Australia’ with ‘the Federal Circuit and Family Court of Australia (Division 2)’ in paragraph 10(2)(b) of Schedule 2 of the Great Barrier Reef Marine Park Amendment (Authority Governance and Other Matters) Act 2018 . Section 10 provides that if the Commonwealth and a person do not agree to the amount of compensation payable by the Commonwealth, the person may institute proceedings for recovery in the Federal Circuit Court of Australia.  This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively affect the operation of the paragraph.

 

Greenhouse and Energy Minimum Standards Act 2012

Item 447 - Section 5 (paragraph (b) of the definition of issuing officer )

982.           Item 447 repeals paragraph (b) of the definition of ‘issuing officer’ in section 5 of the Greenhouse and Energy Minimum Standards Act 2012 . Paragraph (b) provides that an issuing officer means ‘a Judge of the Federal Circuit Court of Australia’. Item 447 instead substitutes ‘a Judge of the Federal Circuit and Family Court of Australia (Division 2)’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 448 - Section 5 (paragraph (aa) of the definition of relevant court )

983.           Item 448 repeals paragraph (aa) of the definition of ‘relevant court’ in section 5. Paragraph (aa) will be inserted by Schedule 7 of the Regulatory Powers (Standardisation Reform) Act 2017 , which will commence before 1 January 2019. Item 448 instead substitutes ‘the Federal Circuit and Family Court of Australia (Division 2)’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

 

Healthcare Identifiers Act 2010

Item 449 - Paragraphs 31C(3)(b), 31D(3)(b) and 31E(3)(b)

984.           Item 449 repeals paragraphs 31C(3)(b), 31D(3)(b) and 31E(3)(b) of the Healthcare Identifiers Act 2010 . For the purposes of civil penalty provisions (section 31C), enforceable undertakings (section 31D) and injunctions (section 31E), those paragraphs provide that a relevant court is the Federal Circuit Court of Australia. Item 449 instead substitutes ‘the Federal Circuit and Family Court of Australia (Division 2)’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

 

Higher Education Support Act 2003

Item 450 - Subclause 1(1) of Schedule 1 (paragraph (b) of the definition of applicable court )

985.           Item 450 repeals paragraph (b) of the definition of ‘applicable court’ in subclause 1(1) of Schedule 1 of the Higher Education Support Act 2003 and replaces it with new paragraph (b), which refers to ‘the Federal Circuit and Family Court of Australia (Division 2)’. Subclause 1(1) of Schedule 1 provides definitions to assist in interpreting the Act. Paragraph (b) of the definition of ‘applicable court’ currently provides that the Federal Circuit Court is an applicable court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not affect the meaning of ‘applicable court’ in subclause 1(1).

Item 451 - Subclause 1(1) of Schedule 1 (paragraph (c) of the definition of judicial officer )

986.           Item 451 repeals paragraph (c) of the definition of ‘judicial officer’ of subclause 1(1) of Schedule 1 and replaces it with new paragraph (c), which refers to ‘a Judge of the Federal Circuit and Family Court of Australia (Division 2)’. Subclause 1(1) of Schedule 1 provides definitions to assist in interpreting the Act. Paragraph (c) of the definition of ‘judicial officer’ currently provides that judicial officer means a Judge of the Federal Circuit Court of Australia. The amendment appropriately reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2).

 

Horse Disease Response Levy Collection Act 2011

Item 452 - Paragraph 13(11)(b)

987.           Item 452 repeals paragraph 13(11)(b) of the Horse Disease Response Levy Collection Act 2011 and replaces it with new paragraph (b), which refers to ‘the Federal Circuit and Family Court of Australia (Division 2)’. Paragraph 13(11)(b) is to be inserted by Schedule 8 to the Regulatory Powers (Standardisation Reform) Act 2017 , and provides that the Federal Circuit Court is a relevant court in relation to the levy law and to the information mentioned in subsection 13(2) for the purposes of Part 2 of the Regulatory Powers (Standardisation Provisions) Act 2014 . The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively affect the operation of paragraph 13(11)(b).

Item 453 - Subsection 19(2)

988.           Item 453 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 19(2). Section 19 is to be inserted by Schedule 8 to the Regulatory Powers (Standardisation Reform) Act 2017 , and provides for Commonwealth compensation for acquisition of property from a person otherwise than on just terms. Subsection 19(2) currently provides that if the Commonwealth and the person do not agree on the amount of compensation, the person may institute proceedings in the Federal Court or the Federal Circuit Court . The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively affect the operation of subsection 19(2).

 

Human Rights Legislation Amendment Act 2017

Item 454 - Subitem 58(9) of Schedule 2

989.           Item 454 updates the reference to ‘or the Federal Circuit Court’ to be ‘, the Federal Circuit Court of Australia or the Federal Circuit and Family Court of Australia (Division 2)’ in subitem 58(9) of Schedule 2 of the Human Rights Legislation Amendment Act 2017 . Schedule 2 provides for amendment of the Australian Human Rights Commission Act 1986 . Subitem 58(9) of Schedule 2 currently provides that certain amendments in relation to an application made to the Federal Court or the Federal Circuit Court under section 46PO of the Australian Human Rights Commission Act 1986 will apply if the relevant complaint was lodged after the commencement of item 58. The amendment includes both the Federal Circuit Court and the FCFC (Division 2) to ensure all applications are captured. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

 

Illegal Logging Prohibition Act 2012

Item 455 - Paragraph 21(5)(c)

990.           Item 455 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in paragraph 21(5)(c) of the Illegal Logging Prohibition Act 2012 . Paragraph 21(5)(c) currently provides that a Judge of the Federal Circuit Court or a Judge of the Federal Court who has consented to act as an issuing officer for the purposes of the Act is an issuing officer in relation to the provisions mentioned in subsection 21(1) and the information mentioned in subsection 21(2) for the purposes of Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 . The amendment appropriately reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not affect the operation of paragraph 21(5)(c).

Item 456 - Paragraph 21(9)(b)

991.           Item 456 repeals paragraph 21(9)(b) and replaces it with new paragraph (b), which refers to ‘the Federal Circuit and Family Court of Australia (Division 2)’. Paragraph 21(9)(b) currently provides that the Federal Circuit Court is a relevant court in relation to the provisions mentioned in subsection 21(1) and the information mentioned in subsection 21(2) for the purposes of Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 . The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not affect the operation of paragraph 21(9)(b).

Item 457 - Paragraph 22(4)(c)

992.           Item 457 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in paragraph 22(4)(c). Paragraph 22(4)(c) currently provides that Judge of the Federal Circuit Court or a Judge of the Federal Court who has consented to act as an issuing officer for the purposes of the Act is an issuing officer in relation to evidential material that relates to a provision mentioned in subsection 22(1) for the purposes of Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 . The amendment appropriately reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not affect the operation of paragraph 22(4)(c).

Item 458 - Paragraphs 22(8)(b) and 23(3)(b)

993.           Item 458 repeals paragraphs 22(8)(b) and 23(3)(b) and replaces them with new paragraphs (b), which refer to ‘the Federal Circuit and Family Court of Australia (Division 2)’. Paragraphs 22(8)(b) and 23(3)(b) currently provide that the Federal Circuit Court is a relevant court in relation to the matters specified for the purposes of Parts 3 and 4, respectively of the Regulatory Powers (Standard Provisions) Act 2014 . The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of paragraphs 22(8)(b) and 23(3)(b).

 

Income Tax Assessment Act 1997

Item 459 - Subsection 126-15(2) (example)

994.           Item 459 updates the reference to ‘The Family Court’ to be ‘A court’ in the example to subsection 126-15(2) of the Income Tax Assessment Act 1997 . Section 126-15 deals with a capital gains tax (CGT) event involving a company or a trustee. The amendment appropriately reflects the fact that the reference to the Family Court is no longer relevant, as the Family Court will continue in existence as the FCFC (Division 1), and that other courts can make such orders. The amendment does not alter the intent of the example to subsection 126-15(2).

 

Independent Contractors Act 2006

Item 460 - Section 4 (definition of Court )

995.           Item 460 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in section 4 of the Independent Contractors Act 2006 . Section 4 provides definitions to assist in interpreting the Act. Currently, the definition of ‘Court’ means ‘the Federal Court of Australia or the Federal Circuit Court of Australia’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively affect the meaning of the definition of ‘Court’ in section 4.

Item 461 - Subsection 12(1) (note)

996.           Item 461 repeals the note to subsection 12(1) and replaces it with a new note to subsection 12(1). Subsection 12(1) provides that an application may be made to a Court to review a services contract. The note currently provides legislative references for transferring proceedings from the Federal Circuit Court to the Federal Court. The new note appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and refers to the correct provisions for the transferring of matters from the FCFC (Division 2) to the Federal Court (including new section 32AC of the Federal Court Act, which allows the Federal Court to transfer a matter pending in the FCFC (Division 2) to the Federal Court on its own motion or on the application of a party to the proceedings).

Item 462 - Section 15 (note)

997.           Item 462 updates the reference to ‘Part 4 of the Federal Circuit Court of Australia Act 1999 ’ to be ‘Part 5 of Chapter 4 of the Federal Circuit and Family Court of Australia Act 2018 ’ in the note to section 15. Section 15 provides for the powers of the Court in reviewing a services contract. The note to section 15 currently provides legislative references to alternative dispute resolution methods. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and updates the legislative reference to the correct part of the Federal Circuit and Family Court of Australia Act 2018 .

Item 463 - Section 16 (note 2)

998.           Item 463 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in note 2 to section 16. Section 16 provides for the orders that a Court may make in relation to a services contract. Note 2 to section 16 currently provides the legislative reference for appeals to the Federal Court from judgments of the Federal Circuit Court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

 

Industrial Chemicals (Notification and Assessment) Act 1989

Item 464- Paragraphs 83(3)(b), 85(9)(b) and 86(8)(b)

999.           Item 464 repeals paragraphs 83(3)(b), 85(9)(b) and 86(8)(b) of the Industrial Chemicals (Notification and Assessment) Act 1989 and replaces them with new paragraphs (b), which refer to ‘the Federal Circuit and Family Court of Australia (Division 2)’. Paragraphs 83(3)(b), 85(9)(b) and 86(8)(b) are to be inserted by Schedule 10 to the Regulatory Powers (Standardisation Reform) Act 2017 , and currently provide that the Federal Circuit Court is a relevant court in relation to the matters specified for the purposes of Parts 7, 2 and 3, respectively of the Regulatory Powers (Standard Provisions) Act 2014 . The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of paragraphs 83(3)(b), 85(9)(b) and 86(8)(b).

 

Interactive Gambling Act 2001

Item 465 - Section 4 (definition of Federal Circuit Court )

1000.       Item 465 repeals the definition of ‘Federal Circuit Court’ in section 4 of the Interactive Gambling Act 2001 . Section 4 provides definitions to assist in interpreting the Act. Currently, the ‘Federal Circuit Court’ is defined as being the ‘Federal Circuit Court of Australia’. The definition is no longer required as the Federal Circuit Court will be continued as the FCFC (Division 2). Where references in the Act are made to the FCFC (Division 2), the reference is provided in full.

Item 466 - Paragraphs 64B(3)(b) and 64D(3)(b)

1001.       Item 466 repeals paragraphs 64B(3)(b) and 64D(3)(b) and replaces them with new paragraphs (b), which refer to ‘the Federal Circuit and Family Court of Australia (Division 2)’. Paragraphs 64B(3)(b) and 64D(3)(b) currently provide that the Federal Circuit Court is a relevant court in relation to the matters specified for the purposes of Part 4 and Part 7, respectively of the Regulatory Powers (Standard Provisions) Act 2014 . The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of paragraphs 64B(3)(b) and 64D(3)(b).

 

Judges (Long Leave Payments) Act 1979

Item 467 - Title

1002.       Item 467 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the title of the Judges (Long Leave Payments) Act 1979 . The title now reads ‘An Act to make provision for payments, in lieu of long leave, on the retirement or death of certain Judges (other than Justice of the High Court and Judges of the Federal Circuit Court of Australia) and persons having the status of Judges’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 468 - Section 3 (paragraph (a) of the definition of Judge )

1003.       Item 468 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ of paragraph (a) of the definition of ‘Judge’ in section 3. Section 3 provides definitions to assist in interpreting the Act. Paragraph (a) of the definition of ‘Judge’ currently provides that Judge means ‘a Judge of a federal court (other than the High Court or the Federal Circuit Court of Australia)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of the definition of ‘Judge’ in section 3.

Item 469 - After section 3A

1004.       Item 469 inserts new section 3B into the Act. The new section is an avoidance of doubt provision, which seeks to clarify that a person may satisfy the definition of ‘Judge’ even in circumstances where the person also holds office as a Judge of the FCFC (Division 2). The provision confirms that a Judge with a dual commission to a federal court (other than the High Court) and the FCFC (Division 2) will be a ‘Judge’ for the purposes of the Judges (Long Leave Payments) Act 1979 .

 

Judges’ Pensions Act 1968

Item 470 - Subsection 4(1) (paragraph (a) of the definition of appropriate current judicial salary )

1005.       Item 470 updates paragraph references in paragraph (a) of the definition of ‘appropriate current judicial salary’ in subsection 4(1) of the Judges Pensions Act 1968 . Subsection 4(1) provides definitions to assist in interpreting the Act. Paragraph (a) provides that an appropriate current judicial salary in relation to a Judge who has retired or died,  except for Judges referred to in paragraph (b), (c), (d) or (e), means a salary at the rate that would be payable to the Judge if he or she had not retired or died. The new paragraph references are to paragraphs (b), (ba), (bb), (c), (da), (db) or (e). The amendment appropriately reflects the introduction of paragraphs (ba), (bb), (da) and (dd) by items 471 and 472.

Item 471 - Subsection 4(1) (after paragraph (b) of the definition of appropriate current judicial salary )

1006.       Item 471 inserts paragraphs (ba) and (bb) following paragraph (b) of the definition of ‘appropriate current judicial salary’ in subsection 4(1). Subsection 4(1) provides definitions to assist in interpreting the Act. New paragraph (ba) ties the appropriate current judicial salary in relation to a former Chief Justice of the Family Court who has retired or died to the salary payable to the Chief Justice of the FCFC (Division 1). New paragraph (bb) ties the appropriate current judicial salary in relation to a former Deputy Chief Justice of the Family Court who has retired or died to the salary payable to the Chief Justice of the FCFC (Division 1). These additions appropriately reflect the continuation of the Family Court as the FCFC (Division 1).

Item 472 - Subsection 4(1) (after paragraph (d) of the definition of appropriate current judicial salary )

1007.       Item 472 inserts paragraphs (da) and (db) following paragraph (d) of the definition of ‘appropriate current judicial salary’ in subsection 4(1). Subsection 4(1) provides definitions to assist in interpreting the Act. New paragraph (da) ties the appropriate current judicial salary in relation to a former Senior Judge of the Family Court, other than a Chief Justice or Deputy Chief Justice, who has retired or died to the salary payable to a Senior Judge of the FCFC (Division 1). New paragraph (db) ties the appropriate current judicial salary in relation to a former Judge of the Family Court, other than a Chief Justice, Deputy Chief Justice or Senior Judge, who has retired or died to the salary payable to a Judge of the FCFC (Division 1). These additions appropriately reflect the continuation of the Family Court as the FCFC (Division 1).

Item 473 - Subsection 4(1)

1008.       Item 473 inserts a new definition of the ‘Family Court of Australia’ into subsection 4(1). Subsection 4(1) provides definitions to assist in interpreting the Act. The new definition provides that ‘Family Court of Australia means the federal court known, immediately before 1 January 2019, as the Family Court of Australia’.

Item 474 - Subsection 4(1) (paragraph (a) of the definition of Judge )

1009.       Item 474 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in paragraph (a) of the definition of ‘Judge’ in subsection 4(1). Subsection 4(1) provides definitions to assist in interpreting the Act. Paragraph (a) of the definition of Judge currently provides that ‘a Justice or Judge of a federal court (other than the Federal Circuit Court of Australia)’ is a Judge. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of the definition of ‘Judge’ in subsection 4(1).

Item 475 - Subsection 4(1) (at the end of the definition of Judge )

1010.       Item 475 inserts a note at the end of the definition of ‘Judge’ in subsection 4(1). The note refers to section 5 to assist in determining whether a person is captured by the definition of ‘Judge’ in circumstances where a person holds more than one judicial office.

Item 476 - At the end of section 5

1011.       Item 476 inserts new subsection (3) in section 5. Section 5 provides for Judges serving in more than one judicial office. The new subsection is an avoidance of doubt provision, which seeks to clarify that a person may satisfy the definition of ‘Judge’ even in circumstances where the person also holds office as a Judge of the FCFC (Division 2). The provision confirms that a Judge with a dual commission to a federal court and the FCFC (Division 2) will be a ‘Judge’ for the purposes of the Judges’ Pensions Act 1968 .

 

Judicial and Statutory Officers (Remuneration and Allowances) Act 1984

Item 477 - Part 2 of the Schedule (cell at table item dealing with Chief Justice of the Family Court of Australia, column 1)

1012.       Item 477 amends Part 2 of the Schedule of the Judicial and Statutory Officers (Remuneration and Allowances) Act 1984 by repealing the cell dealing with the ‘Chief Justice of the Family Court of Australia’ and substituting with a reference to the ‘Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)’. This amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not alter the substantive operation of the provision.

Item 478 - Part 2 of the Schedule (cell at table item dealing with Deputy Chief Justice of the Family Court of Australia, column 1)

1013.       Item 478 amends Part 2 of the Schedule by repealing the cell dealing with the ‘Deputy Chief Justice of the Family Court of Australia’ and substituting with a reference to the ‘Deputy Chief Justice of the Federal Circuit and Family Court of Australia (Division 1)’. This amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not alter the substantive operation of the provision.

Item 479 - Part 2 of the Schedule (cell at table item dealing with Judge assigned to the Appeal Division of the Family Court of Australia (other than the Chief Justice or the Deputy Chief Justice) )

1014.       Item 479 amends Part 2 of the Schedule by repealing the item dealing with ‘Judge assigned to the Appeal Division of the Family Court of Australia (other than the Chief Justice or the Deputy Chief Justice)’. This amendment appropriately reflects transfer, by Schedule 1 of this Act, of the majority of the appellate family law jurisdiction of the Family Court to the Family Law Appeal Division of the Federal Court.

Item 480 - Part 2 of the Schedule (cell at table item dealing with Senior Judge of the Family Court of Australia)

1015.       Item 480 amends Part 2 of the Schedule by repealing the cell dealing with ‘Senior Judge of the Family Court of Australia’ and substituting with a reference to ‘Senior Judge of the Federal Circuit and Family Court of Australia (Division 1)’. This amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not alter the substantive operation of the provision.

Item 481 - Part 2 of the Schedule (cell at table item dealing with Any other Judge of the Family Court of Australia, column 1)

1016.       Item 481 amends Part 2 of the Schedule by repealing the cell dealing with ‘Any other Judge of the Family Court of Australia’ and substituting with a reference to ‘Any other Judge of the Federal Circuit and Family Court of Australia (Division 1)’. This amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not alter the substantive operation of the provision.

Item 482 - Part 2 of the Schedule (cell at table item dealing with Judicial Registrar of the Family Court of Australia, column 1)

1017.       Item 482 amends Part 2 of the Schedule by repealing the table item dealing with ‘Judicial Registrar of the Family Court of Australia’. This amendment appropriately reflects the discontinuation of the role of Judicial Registrar of the Family Court as the FCFC (Division 1).

 

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012

Item 483 - Section 4

1018.       Item 483 amends section 4 of the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 by omitting the current opening paragraph to the section and substituting a new paragraph. Section 4 provides an overarching guide to the Act, the first paragraph of which provides that under the Act, the Houses of Parliament may each pass a resolution, in the same session, establishing a Commission to investigate an allegation of misbehaviour of a Commonwealth judicial officer (being a High Court judge, or a judge of the Federal Court, the Family Court or the Federal Circuit Court.

1019.       Item 483 inserts a new paragraph which replaces the references to the Family Court of Australia and the Federal Circuit Court of Australia with references to the FCFC (Division 1) and the FCFC (Division 2), respectively. This amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2), and does not change the substantive operation of the provision.

Items 484 and 485 - Paragraphs 19(6)(b) and (c)

1020.       Items 484 and 485 amend paragraphs 19(6)(b) and (c) of the Act, by repealing paragraph 16(6)(b), and by omitting the reference to the ‘ Federal Circuit Court of Australia Act 1999’ and substituting ‘ Federal Circuit and Family Court of Australia Act 2018’ . Paragraph 19(6)(b) provides that an official investigation under the Act includes an investigation into a complaint about a Judge within the meaning of the Family Law Act , and paragraph 19(6)(c) provides the equivalent within the meaning of the Federal Circuit Court Act . This amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1), the Federal Circuit Court as the FCFC (Division 2) and does not alter the substantive operation of the provisions.

 

Judiciary Act 1903

Item 486 - Paragraph 23(2)(a)

1021.       Item 486 removes the words ‘or a decision of the Family Court of Australia or a Judge of that Court’ from paragraph 23(2)(a) of the Judiciary Act 1903 . Paragraph 23(2)(a) provides for the situation where Justices of the High Court are sitting as a Full Court and are divided in opinion, the decision of superior courts or a Judge of such a court will be affirmed. Though the FCFC (Division 1) will remain as a superior court, appeals from a judgment of the FCFC (Division 1) may not be brought directly to the High Court by virtue of section 37 of the Federal Circuit and Family Court of Australia Act 2018 . They will instead be heard in the Family Law Appeal Division of the Federal Court of the Federal Court. The amendment appropriately reflects the change in the appeal pathways of the federal courts.

Item 487 - Paragraph 39B(1EA)(a)

1022.       Item 487 updates the reference to the ‘Family Court of Australia, the Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia’ in paragraph 39B(1EA)(a). See item 491 for further guidance on the definition of the FCFC. Subsection 39B(1EA) currently provides for the jurisdiction of the courts mentioned in paragraphs 39B(1EA)(c) and (d) in relation to an appeal specified in paragraphs 39B(1EA)(a) and (b). The amendment appropriately reflects the continuation of the Family Court and the Federal Circuit Court as the FCFC (Division 1) and FCFC (Division 2) .

Item 488 - Paragraph 39B(1EA)(b)

1023.       Item 488 substitutes the reference to the ‘Family Court of Australia’ with ‘Federal Circuit and Family Court of Australia’ in paragraph 39B(1EA)(b). See item 491 for further guidance on the definition of the FCFC. Subsection 39B(1EA) provides for the jurisdiction of the courts mentioned in paragraphs 39B(1EA)(c) and (d) in relation to an appeal specified in paragraphs 39B(1EA)(a) and (b). The amendment reflects the new federal court appeal structure which allows both the FCFC (Division 1) and the FCFC (Division 2) to hear appeals arising from family law proceedings in a court of summary jurisdiction under sections 25 and 102 of the FCFC.

Item 489 - Subparagraphs 39B(1EA)(d)(i) and (ii)

1024.       Item 489 repeals subparagraphs 39B(1EA)(d)(i) and (ii) and substitutes them with new subparagraphs. New subparagraph 39B(1EA)(d)(i) updates the reference to the ‘Family Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ and new subparagraph 39B(1EA)(d)(ii) updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’. The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subparagraphs 39B(1EA)(d)(i) and (ii).

Item 490 - Subsection 39B(2)

1025.       Item 490 updates the reference to the ‘Family Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in subsection 39B(2). Subsection 39B(2) currently provides that references to an officer or officers of the Commonwealth under subsections 39B(1), (1B), (1C) and (1D) do not include references to a Judge or Judges of the Family Court of Australia. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of subsection 39B(2).

Item 491 - Subsection 39B(3)

1026.       Item 491 inserts a definition of the ‘Federal Circuit and Family Court of Australia’ into subsection 39B(3). Subsection 39B(3) provides definitions to assist in interpreting section 39B. The new definition provides that the FCFC means the FCFC (Division 1) or the FCFC (Division 2). A reference to the ‘Federal Circuit and Family Court of Australia’ throughout the Act is to be taken to refer to either the FCFC (Division 1) or the FCFC (Division 2) or both. The definition assists in interpreting the reference to the FCFC throughout section 39B.

 

Jurisdiction of Courts (Cross-vesting) Act

Item 492 - Paragraph (b) of the Preamble

1027.       Item 492 updates the reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in paragraph (b) of the Preamble of the Jurisdiction of Courts (Cross-vesting) Act 1987 . The preamble describes the purpose of the Act and paragraph (b) lists the courts to which the Act applies. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not alter the intent of the preamble.

Item 493 - Subsection 3(1) (definition of Family Court )

1028.       Item 493 repeals the definition of the ‘Family Court’ in subsection 3(1). Subsection 3(1) provides definitions to assist in interpreting the Act. The definition currently provides that ‘Family Court means the Family Court of Australia’. The definition is no longer required as the Family Court will be continued as the FCFC (Division 1). Where references in the Act are made to the FCFC (Division 1), the reference is provided in full.

Items 494 and 495 - Paragraphs 4(1)(a) and (2)(b) and subsection 4(3)

1029.       Items 494 and 495 update references to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in section 4. Section 4 invests or confers additional jurisdiction on certain courts. The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the operation of paragraphs 4(1)(a) and (2)(b), and subsection 4(3).

Items 496 to 499 - Subparagraph 5(1)(b)(i), subparagraphs 5(1)(b)(ii) and (iii), subsection 5(1) and paragraphs 5(4)(a) and (5)(a)

1030.       Items 496 to 499 update references to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in section 5. Section 5 provides for transfers of proceedings. Subsection 5(1) currently provides for transfers of proceedings from a Supreme Court of a State or Territory to the Federal Court or the Family Court. Subsection 5(4) provides for transfers of proceedings from the Federal Court or the Family Court to the Supreme Court of a State or Territory. Subsection 5(5) provides for transfers of proceedings between the Federal Court and the Family Court. The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the operation of subparagraphs 5(1)(b)(i), (ii) and (iii), subsection 5(1) and paragraphs 5(4)(a) and (5)(a).

Item 500 - Paragraph 6(2)(b)

1031.       Item 500 updates the first occurring reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in paragraph 6(2)(b). Section 6 provides that proceedings or part of proceedings which involve a special federal matter must be transferred in whole or in part to an appropriate federal or State family court. Paragraph 6(2)(b) currently provides that if a matter for determination in the proceeding is a matter under section 60G of the Family Law Act being heard in a court other than the Family Court of Western Australia or the Supreme Court of the Northern Territory, and the Court orders that a proceeding or part of proceedings be transferred, the proceeding or part thereof  must be transferred to the Family Court, the Family Court of Western Australia or the Supreme Court of the Northern Territory as appropriate. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of paragraph 6(2)(b).

Items 501 and 502 - Subsection 6A(2), and subsection 6A(3)

1032.       Items 501 and 502 update references to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in section 6A. Section 6A provides that in limited, specified circumstances, State and Territory Supreme Courts are not obliged to transfer a special federal matter to the Federal Court, as would ordinarily be the case under section 6. In appropriate cases, the Federal Court is able to transfer such matters to State and Territory Supreme Courts. Subsection 6A(2) currently provides that the Federal Court or the Family Court may transfer matters to the Supreme Court of a State if there is a related proceedings currently before the Supreme Court. Subsection 6A(3) provides that if a federal matter proceeding is pending in the Supreme Court of a State and the State matter proceeding is pending in any court of that State, the Supreme Court is not required to transfer the federal matter to the Federal Court or the Family Court, but it may do so if it is appropriate. The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the operation of subsections 6A(2) and (3).

Item 503 - Subsection 7(1)

1033.       Item 503 updates the reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in subsection 7(1). Subsection 7(1) currently provides that a decision of a single judge of the Federal Court or Family Court cannot be appealed to the Full Court of the Supreme Court of a State or Territory. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of subsection 7(1).

Item 504 - Subsection 7(2)

1034.       Item 504 repeals subsection 7(2) and replaces it with new subsection (2), which provides that ‘an appeal may not be instituted from the Federal Court to the FCFC (Division 1)’. Subsection 7(2) currently provides that appeals from decisions of the Federal Court or the Family Court shall not be heard by the other of those courts. This is no longer appropriate, as appeals from the FCFC (Division 1) will be heard by the Family Law Appeal Division of the Federal Court under new subsections 24(1AA) to (1E) of the Federal Court Act. New subsection 7(2) will appropriately ensure that appeals from a decision of the Federal Court cannot be appealed to the FCFC (Division 1).

Items 505 and 506 - Paragraph 7(5)(a) and subsection 7(7)

1035.       Items 505 and 506 update references to ‘of the Family Court’ to be ‘the Family Law Appeal Division of the Federal Court’ in subsections 7(5) and (7). Paragraph 7(5)(a) currently provides for an appeal from a decision of a single judge of a Supreme Court of a State or Territory in relation to a matter arising under an Act listed in the Schedule to be heard by the Full Court of the Federal Court or the Family Court. Subsection 7(7) provides for the situation when the Full Court of a Supreme Court of a State or Territory starts hearing an appeal and then transfers it to the Full Court of the Federal Court or the Family Court. The amendments appropriately reflect the creation of the new Family Law Appeal Division in the Federal Court.

Item 507 - Subparagraph 8(1)(b)(i)

1036.       Item 507 updates the reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in subparagraph 8(1)(b)(i). Section 8 currently allows the Supreme Court of a Territory to transfer a matter from another court or tribunal of that Territory to the Supreme Court if that matter arises out of or is related to another proceeding pending in the Federal Court, the Family Court, or the Supreme Court of a State or another Territory. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of subparagraph 8(1)(b)(i).

Item 508 - Subsection 9(3)

1037.       Item 508 updates the reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in subsection 9(3). Section 9 provides that the Act does not override or limit the operation of a State law relating to cross-vesting of jurisdiction. Subsection 9(3) currently provides that the Federal Court or the Family Court may exercise jurisdiction conferred on the Court by the Act or by a law of the Australian Capital Territory or the Northern Territory relating to cross-vesting of jurisdiction, and hear and determine a proceeding transferred to the Court. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of subsection 9(3).

Item 509 - Paragraph 10(a)

1038.       Item 509 updates the reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in paragraph 10(a). Section 10 currently deals with the transfer of certain matters arising under the Australian Consumer Law from the Federal Court, the Family Court or the Supreme Court of a State or Territory to a court of a State or Territory other than the Supreme Court. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of paragraph 10(a).

Item 510 - Subsection 11(2)

1039.       Item 510 updates the reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in subsection 11(2). Section 11 provides for the conduct of proceedings in matters transferred under the Act or by a State law relating to cross-vesting of jurisdiction. Subsection 11(2) currently provides that, in relation to the Federal Court or Family Court, a reference to the State or Territory in which any matter for determination in the proceeding was first commenced in or transferred to that court. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of subsection 11(2).

Items 511 and 512 - Subsection 14(1) and subsection 14(3)

1040.       Items 511 and 512 update references to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in section 14. Section 14 currently provides for the enforcement and effect of a judgment of the Federal Court, the Family Court or the Supreme Court of a Territory when exercising jurisdiction conferred by a law or laws relating to cross-vesting of jurisdiction in a Territory. The amendments appropriately reflect the continuation of the Family Court as the FCFC (Division 1) and do not substantively alter the operation of subsections 14(1) and (3).

Item 513 - Subsection 16(4)

1041.       Item 513 updates the reference to the ‘Family Court’ to be ‘Federal Circuit and Family Court of Australia (Division 1)’ in subsection 16(4). Section 16 provides for the suspension or cessation of the operation of the Act by the Governor-General. Subsection 16(4) currently provides that the Governor-General may declare that the Act ceases to be in force when satisfied that State Acts relating to cross-vesting of jurisdiction are not effective to confer jurisdiction of the Supreme Courts of the States on the Federal Court or the Family Court. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of subsection 16(4).

 

Law Enforcement Integrity Commissioner Act 2006

Item 514 - Subsection 5(1) (definition of Federal Circuit Court )

1042.       Item 514 repeals the definition of ‘Federal Circuit Court’ in subsection 5(1) of the Law Enforcement Integrity Commissioner Act 2006 . The definition provides that the ‘Federal Circuit Court’ means the Federal Circuit Court of Australia. The definition is no longer required as the Federal Circuit Court will be continued as ‘Federal Circuit and Family Court of Australia (Division 2)’. Where references in the Act are made to the ‘Federal Circuit and Family Court of Australia (Division 2)’ the title of that Court is provided in full.

Item 515 - Subparagraph 5(1) (subparagraph (a)(ia) of the definition of issuing officer)

1043.       Item 515 amends subparagraph (a)(ia) of the definition of ‘issuing officer’ in section 5(1) of the Act. Paragraph (a)(ia) currently provides that an issuing officer (in relation to an investigation warrant) means a Judge of the Federal Circuit Court of Australia sitting in Chambers. The Item removes the reference to the ‘Federal Circuit Court of Australia’ and replaces it with a reference to the ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment reflects the nomenclature changes associated with the new court structure and the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2).

Item 516 - Paragraph 96AD(2)(b)

1044.       Item 516 amends paragraph 96AD(2)(b) of the Act, which deals with the Court’s powers to order disclosure and to ensure a fair trial.  Paragraph 96AD(2)(b) provides that subsection 96AD(1) applies to a federal court (other than the Family Court of Australia) or a court of a State or Territory in circumstances other than where the witness has been charged with a related offence before a federal court or a court of a State or Territory (in which case 96AD(1) applies to that court). The Item omits the reference to the Family Court of Australia and replaces it with a reference to the Federal Circuit and Family Court of Australia (Division 1). The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and does not substantively alter the operation of the paragraph.

Item 517 - Subsection 103(1) (note 2)

1045.       Item 517 amends note 2 of subsection 103(1), which outlines that a person may apply for assistance in respect of an application to the Federal Court or the Federal Circuit Court under the Administrative Decisions (Judicial Review) Act 1977 for an order of review in respect of a matter arising under the Law Enforcement Integrity Commissioner Act 2006 . The Item removes the reference to the Federal Circuit Court in note 2 and replaces it with a reference to the FCFC (Division 2). This amendment reflects the nomenclature changes associated with the new court structure and does not change the intent of the note.

Item 518 - Subsection 103(2) (note)

1046.       Item 518 amends the note at subsection 103(2), which provides that a person may apply for assistance in respect of an application to the Federal Court or the Federal Circuit Court under the Administrative Decisions (Judicial Review) Act 1977 for an order of review in respect of a matter arising under this Act. Similar to the amendment made by item 517 above, this item removes the reference to the Federal Circuit Court in note 2 and replaces it with a reference to the FCFC (Division 2). This amendment reflects the nomenclature changes associated with the new court structure and does not change the intent of the note.

Item 519 - Paragraph 109(7)(b)

1047.       Item 519 repeals paragraph 109(7)(b) and replaces it with a new paragraph. Section 109 deals with the circumstances in which a search warrant may be issued. Subsection 109(7)(b) provides that subsections 109(5) and (6) do not apply if the issuing officer is a Judge of the Federal Circuit Court of Australia. New paragraph (b) provides that subsections 109(5) and (6) do not apply if the issuing officer is a Judge of the FCFC (Division 2). This amendment reflects the nomenclature changes associated with the new court structure and the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2).

Item 520 - Subparagraph 201(g)(i)

1048.       Item 520 amends subparagraph 201(g)(i). Section 201 provides that the annual report prepared by the Integrity Commissioner and given to the Minister under section 46 of the  Public Governance, Performance and Accountability Act 2013  for a period must include the specified matters. Subparagraph 201(g)(i) provides that the annual report must include details of the number and results of applications made to the Federal Court or the Federal Circuit Court under the Administrative Decisions (Judicial Review) Act 1977 for orders of review in respect of matters arising under this Act.’ This item amends this subparagraph by removing the reference to the ‘Federal Circuit Court’ and replacing it with a reference to the ‘ Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subparagraph.

Item 521 - Subsections 221(1) and (2)

1049.       Item 521 amends subsections 221(1) and (2), which deal with legal and financial assistance in relation to applications for administrative review. The item removes the references to the Federal Circuit Court from both subsections and replaces them with references to the FCFC (Division 2). The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsections.

 

Major Sporting Events (Indicia and Images) Protection Act 2014

Item 522 - Section 9, paragraph (b) (definition of relevant court )

1050.       Item 522 repeals paragraph (b) of the definition of ‘relevant court’ in section 9 of the Major Sporting Events (Indicia and Images) Protection Act 2014 . The definition currently provides that the Federal Circuit of Australia is a relevant court. The item substitutes a new paragraph (b), which replaces the reference to ‘the Federal Circuit Court of Australia’ with ‘the Federal Circuit and Family Court of Australia (Division 2)’ to reflect the nomenclature changes associated with the new court structure. The amendment does not substantively alter the operation of definition.

 

Marriage Act 1961

Item 523 - Subsection 5(1) (paragraph (a) of the definition of Judge )

1051.       Item 523 repeals paragraph (a) of the definition of ‘Judge’ in subsection 5(1) of the Marriage Act 1961 and replaces it with a new paragraph. Paragraph (a) currently provides that a Judge, in relation to the performance of a function under this Act in a State or Territory, means a person who is a Judge of the Family Court of Australia, or a Judge of the Federal Circuit Court of Australia, who is appointed by the Minister to be a person authorised to perform that function. New paragraph (a) provides that a ‘Judge, in relation to the performance of a function under this Act in a State or Territory, means a Judge of the Federal Circuit and Family Court of Australia (Division 1), or a Judge of the Federal Circuit and Family Court of Australia (Division 2), who is appointed by theMinister to be a person authorised to perform that function’. This amendment removes the references to the Family Court and the Federal Circuit Court, and replaces them with the updated nomenclature of the FCFC (Division 1) and the FCFC (Division 2), respectively. The new paragraph does not substantively depart from the operation of the existing paragraph.

Item 524 - Subsection 9A(1)

1052.       Item 524 amends subsection 9A(1), which provides that persons who may exercise certain powers may be restricted by a Proclamation issued by the Governor-General. In particular, the amendment updates references to the Family Court to the FCFC (Division 1) and the Federal Circuit Court to be the FCFC (Division 2). The amended subsection will provide that the Governor-General may, by Proclamation, declare that, on and after a date fixed by the Proclamation, a power or function under the Act that is specified in the Proclamation, being a power or function expressed by the Act to be exercisable by a Judge, or by a Judge or magistrate, is not to be exercised, or is not to be exercised in a specified part of Australia, otherwise than by a Judge who is a Judge of the FCFC (Division 1), the FCFC (Division 2) or the Family Court of a State. This amendment reflects the nomenclature changes associated with the new court structure and does not substantively alter the operation of the subsection.

Item 525 - Subsection 92(1)

1053.       Item 525 updates the reference to the Family Court to be the FCFC (Division 1) and the Federal Circuit Court to be the FCFC Division 2 in subsection 92(1). Subsection 92(1) provides that a person may apply to the Family Court of Australia, the Federal Circuit Court of Australia, a Family Court of a State or the Supreme Court of a State or Territory for an order declaring that the person is the legitimate child of his or her parents or that the person or his or her parent or child or a remoter ancestor is or was a legitimated person. The Court may, in its discretion, make the order. The amendment appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 92(1).

 

Marriage Amendment (Definition and Religious Freedoms) Act 2017

Item 526 - After subitem 6(6) of Schedule 4

1054.       Item 526 inserts a new subitem 6A after subitem 6(6) of Schedule 4 of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 . Subitem 6 deals with proceedings pending under the Family Court Act 1997 (WA) before 9 December 2017. Subitem 6(6) provides that if the proceedings were an appeal instituted in, or made to, the Court of Appeal under Part 7 of the Family Court Act 1997 (WA), that Court may, on the application of a party or of its own motion, refer the appeal to a Full Court of the Family Court of Australia.

1055.       New subitem 6A is an avoidance of doubt provision which provides that on and after 1 January 2019, an appeal mentioned in subitem (6) may not be referred to the Family Law Appeal Division of the Federal Court.

 

Maternity Leave (Commonwealth Employees) Act 1973

Item 527 - Paragraph 5(3)(ba)

1056.       Item 527 repeals paragraph 5(3)(ba) of the Maternity Leave (Commonwealth Employees) Act 1973 and replaces it with a new paragraph. Paragraph 5(3)(ba) currently provides that the Act does not apply to or in relation to a person who is a Judge of the Federal Circuit Court of Australia . New paragraph 5(3)(ba) provides the Act does not apply to or in relation to a person who is a person who is a Judge of the FCFC (Division 2). The amendments appropriately reflect the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and do not substantively alter the operation of paragraph.

 

Migration Act 1958

Item 528 - Subsection 5(1) (paragraph (b) of the definition of eligible court )

1057.       Item 528 repeals paragraph (b) of the definition of ‘eligible court’ and replaces it with new paragraph (b), which refers to ‘the Federal Circuit and Family Court of Australia (Division 2)’ in subsection 5(1) of the Migration Act 1958 (the Migration Act). Subsection 5(1) provides definitions to assist in interpreting the Act. Paragraph (b) of the definition of ‘eligible court’ currently provides for the Federal Circuit Court to be an eligible court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not alter the intent of the definition of ‘eligible court’ in subsection 5(1).

Item 529 - Subsection 5(1) (definition of Federal Circuit Court )

1058.       Item 529 repeals the definition of the ‘Federal Circuit Court’ in subsection 5(1). Subsection 5(1) provides definitions to assist in interpreting the Migration Act. ‘Federal Circuit Court’ is currently defined as being the ‘Federal Circuit Court of Australia’. The definition is no longer required as the Federal Circuit Court will be continued as the FCFC (Division 2). Where references in the Act are made to the ‘Federal Circuit and Family Court of Australia (Division 2)’, the reference is provided in full.

Item 530 - Subparagraph 42(2A)(e)(ii)

1059.       Item 530 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subparagraph 42(2A)(e)(ii). Subsection 42(1) provides that a non-citizen must not travel to Australia without a visa that is in effect. Subsection 42(2A) provides that subsection 42(1) does not apply to a non-citizen in relation to travel to Australia in certain circumstances. Subparagraph 42(2A)(e)(ii) currently provides for the situation when a non-citizen has been removed under section 198 and before the removal, the High Court, the Federal Court or the Federal Circuit Court had made an order in relation to the non-citizen, or the Minister had given an undertaking to one of those courts in relation to the non-citizen. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subparagraph 42(2A)(e)(ii).

Item 531 - Section 91X (heading)

1060.       Item 531 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to section 91X. The heading now reads ‘Names of applicants for protection visas not to be published by the High Court, Federal Court or Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 532 - Subsections 91X(1), 114(1) and 153(2)

1061.       Item 532 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsections 91X(1), 114(1) and 153(2). Subsection 91X(1) currently provides that the High Court, the Federal Court or the Federal Circuit Court must not publish the names of applicants for protection visas or protection-related bridging visas, or persons whose protection visa or protection-related bridging visa has been cancelled. Subsection 114(1) currently provides that if the Federal Court, the Federal Circuit Court or the Administrative Appeals Tribunal sets aside a decision to cancel a person’s visa under section 109, the visa is taken never to have been cancelled. Subsection 153(2) currently provides that the removal or deportation of a non-citizen is not permitted if it would be in breach of an order of the High Court, the Federal Court or the Federal Circuit Court. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsections 91X(1), 114(1) and 153(2).

Item 533 - Section 476 (heading)

1062.       Item 533 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to section 476. The heading now reads ‘Jurisdiction of the Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 534 - Subsections 476(1), (2) and (3)

1063.       Item 534 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsections 476(1), (2) and (3). Section 476 provides for the jurisdiction of the Federal Circuit Court. Subsection 476(1) currently provides that the Federal Circuit Court has the same original jurisdiction under paragraph 75(v) as the High Court in relation to migration decisions. Subsection 476(2) currently provides that the Federal Circuit Court has no jurisdiction in relation to the decisions listed. Subsection 476(3) currently provides that any jurisdiction the Federal Circuit Court may have to hear matters in relation to non-privative clause decisions under the Administrative Decisions (Judicial Review) Act 1977 or the Administrative Appeals Tribunal Act 1977 is not affected by section 476. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsections 476(1), (2) and (3).

Item 535 - Paragraph 476A(1)(a)

1064.       Item 535 repeals paragraph 476A(1)(a) and replaces it with new paragraph (a) incorporating subparagraphs (i) and (ii). Section 476A provides for the limited jurisdiction of the Federal Court. Subsection 476A(1) currently provides for matters in which the Federal Court has original jurisdiction in relation to a migration decision, including where the Federal Circuit Court has transferred a matter to it under section 39 of the Federal Circuit Court Act.

1065.       New subparagraph 476A(1)(a)(i) provides for transfers made under section 120 of the Federal Circuit and Family Court of Australia Act 2018 and new subparagraph 476A(1)(a)(ii) provides for the Federal Court to confirm the transfer under section 32AD of the Federal Court Act. Section 120 of the Federal Circuit and Family Court of Australia Act 2018 provides the FCFC (Division 2) with the power to transfer matters to the Federal Court as currently provided for in section 39 of the Federal Circuit Court Act. The Federal Court must confirm such a transfer under new section 32AD of the Federal Court Act as required for all matters transferred under section 120. See item 248 of Schedule 1 of this Explanatory Memorandum for further guidance. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and updates the legislative reference.

Item 536 - After subsection 476A(1)

1066.       Item 536 inserts new subsection 476A(1A) following subsection 476A(1). Subsection 476A(1) provides for matters in which the Federal Court has original jurisdiction in relation to migration decisions. New subsection 476A(1A) provides that the Federal Court does not have original jurisdiction in relation to a migration decision if the proceedings have been transferred to the Federal Court under section 32AC of the Federal Court Act. This is consistent with the current original jurisdiction of the Federal Court in relation to a migration decision. Section 32AC of the Federal Court Act provides the Federal Court a new power to transfer matters to itself, other than proceedings relating to family law matters, on its own initiative or on the application of a party from the FCFC (Division 2). See the explanation for item 248 in Schedule 1 of this Explanatory Memorandum for further guidance.

Item 537 - Paragraph 476A(3)(a)

1067.       Item 537 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in paragraph 476A(3)(a). Section 476A provides for the limited jurisdiction of the Federal Court. Paragraph 476A(3)(a) currently provides that an appeal may not be brought to the Federal Court from a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2). See item 540 for further guidance on subsection 477(2). The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of paragraph 476A(3)(a).

Item 538 - Subsections 476B(1) and (2)

1068.       Item 538 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in section 476B. Section 476B provides for the remittal of matters by the High Court. Subsections 476B(1) and (2) currently provide that the High Court must only remit matters, or any part of a matter, relating to migration decisions to the Federal Circuit Court if the Federal Circuit Court has jurisdiction in relation to the matter or part of a matter under section 476. See item 534 for further guidance on section 476. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsections 476B(1) and (2).

Item 539 - Section 477 (heading)

1069.       Item 539 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to section 477. The heading now reads ‘Time limits on applications to the Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 540 - Subsections 477(1) and (2) and 480(2)

1070.       Item 540 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsections 477(1) and (2) and 480(2). Subsection 477(1) currently provides that an application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of that decision. See item 534 for further guidance on section 476. Subsection 477(2) currently provides that the Federal Circuit Court may, by order, extend that 35 day period in appropriate circumstances. Subsection 480(2) currently provides that if the Attorney-General intervenes in a proceeding referred to in section 477 or 477A, the Federal Circuit Court or Federal Court may make such orders as to costs against the Commonwealth as the court thinks fit. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsections 477(1) and (2) and 480(2).

Item 541 - Section 484 (heading)

1071.       Item 541 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to section 484. The heading now reads ‘Exclusive jurisdiction of High Court, Federal Court and Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 542 - Subsections 484(1) and (2) and 486B(1)

1072.       Item 542 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsections 484(1) and (2) and 486B(1). Subsections 484(1) and (2) currently provide that the High Court, Federal Court and Federal Circuit Court have exclusive jurisdiction in relation to migration decisions. Subsection 486B(1) currently applies section 486B to all migration proceedings in the High Court, Federal Court or Federal Circuit Court that raise an issue in connection with visas, deportation, taking, or removal of unlawful non-citizens. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsections 484(1) and (2) and 486B(1).

Item 543 - Section 486C (heading)

1073.       Item 543 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to section 486C. The heading now reads ‘Persons who may commence or continue proceedings in the Federal Circuit and Family Court of Australia (Division 2) or the Federal Court’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 544 - Subsection 486C(1)

1074.       Item 544 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 486C(1). Section 486C provides for which persons may commence or continue proceedings in relation to certain issues. Subsection 486C(1) currently provides that only persons mentioned in section 486C may commence proceedings in the Federal Court or the Federal Circuit Court which raises an issue in connection with visas, deportation, taking, or removal of non-citizens and relates to the validity, interpretation or effect of a provision of the Act or the regulations. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not affect the operation of subsection 486C(1).

Item 545 - Subsection 486C(3)

1075.       Item 545 updates the reference to the ‘Federal Circuit Court’s jurisdiction’ to be ‘jurisdiction of the Federal Circuit and Family Court of Australia (Division 2)’ in subsection 486C(3). Section 486C provides for which persons may commence or continue proceedings in relation to certain issues. Subsection 486C(1) currently provides that only persons mentioned in section 486C who may commence proceedings in the Federal Court or the Federal Circuit Court which raises an issue in connection with visas, deportation, taking, or removal of non-citizens and relates to the validity, interpretation or effect of a provision of the Act or the regulations. Subsection 486C(3) provides that section 486C applies to proceedings within the Federal Circuit Court’s jurisdiction. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively affect the operation of subsection 486C(3).

Item 546 - Subsection 486C(3A)

1076.       Item 546 repeals subsection 486C(3A) and replaces it with new subsections 486C(3A) and (3B). Section 486C provides for which persons may commence or continue proceedings in relation to certain issues. Current subsection 486C(3A) provides for application of section 486C to proceedings transferred to the Federal Court from the Federal Circuit Court under section 39 of the Federal Circuit Court Act or where the Federal Court has original jurisdiction under subsections 476A(1)(b) or (c) of the Migration Act 1958 .

1077.       New paragraph 486C(3A)(a) applies section 486C to proceedings that are transferred to the Federal Court under section 120 of the Federal Circuit and Family Court of Australia Act 2018 and are confirmed by the Federal Court under section 32AD of the Federal Court Act. See item 248 of Schedule 1 and item 535 above of this Explanatory Memorandum for further guidance. New paragraph 486C(3A)(b) applies section 486C to proceedings in which the Federal Court has jurisdiction under paragraphs 476A(1)(b) or (c). New subsection 486C(3B) provides that section 486C does not apply to proceedings that are transferred to the Federal Court if the Federal Court transfers the proceeding from the FCFC (Division 2) under section 32AC of the Federal Court Act.

1078.       Section 32AC of the Federal Court Act provides the Federal Court with the power to transfer matters to itself, other than proceedings relating to family law matters, on its own initiative or on the application of a party from the FCFC (Division 2). See item 248 of Schedule 1 and item 536 above of this Explanatory Memorandum for further guidance. The amendments ensure that the new appeal provisions relating to the Federal Court are taken into account, while also ensuring that the current operation of section 486C is not substantively changed.

Item 547 - Subsection 486D(1)

1079.       Item 547 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 486D(1). Subsection 486D(1) currently provides that a person commencing a proceeding in the Federal Circuit Court in relation to a tribunal decision must disclose to the court any judicial review proceeding already brought by the person in relation to that decision. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively affect the operation of subsection 486D(1).

Item 548 - Subsection 486D(5) (paragraph (a) of the definition of judicial review proceeding )

1080.       Item 548 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 486D(5). Subsection 486D(5) provides definitions to assist in interpreting section 486D. Paragraph (a) of the definition of ‘judicial review proceeding’ currently provides that a judicial review proceeding, in relation to a tribunal decision, means a proceeding in the Federal Circuit Court in relation to the tribunal decision. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not alter the intent of the definition of ‘judicial review proceeding’ in subsection 486D(5).

Item 549 - Section 487A (paragraph (b) of the definition of issuing officer )

1081.       Item 549 repeals paragraph (b) of the definition of ‘issuing officer’ in section 487A and replaces it with new paragraph (b), which refers to ‘a Judge of the Federal Circuit and Family Court of Australia (Division 2)’. Section 487A provides definitions to assist in interpreting Part 8E of the Act. Paragraph (b) of the definition of ‘issuing officer’ currently provides that a Judge of the Federal Circuit Court is an issuing officer. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not alter the intent of the definition of ‘issuing officer’ in section 487A.

Item 550 - Paragraph 500(6)(d)

1082.       Item 550 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in paragraph 500(6)(d). Paragraph 500(6)(d) currently provides that where an application has been made to the AAT for the review of an order for the deportation of a person under section 200, the order shall not be taken for the purposes of section 253 to  have ceased or to cease to be in force by reason only of any order that has been made by the Federal Circuit Court of Australia or a Judge of the Federal Circuit Court under section 44A of the Administrative Appeals Tribunal Act 1975 . The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of paragraph 500(6)(d).

Item 551 - Subsections 503A(4A) and (5A)

1083.       Item 551 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in section 503A. Section 503A protects the disclosure of confidential information communicated to an authorised migration officer by a gazetted agency that is relevant to the exercise of a power under section 501, 501A, 501B, 501BA, 501C or 501CA (other than in certain limited circumstances). Subsection 503A(4A) currently provides that if information is divulged to a Commonwealth officer in accordance with a declaration under subsection 503A(3), the officer must not be required to communicate the information to the Federal Court or the Federal Circuit Court, or give the information in evidence before either Court. The information may be considered by either Court if a fresh disclosure of the information is made by a ministerial declaration under subsection 503A(3) or subsection 503B(6). See items 555 and 556 for further guidance on subsection 503B(6). Subsection 503A(5A) currently provides for the situation when the information is disclosed to a tribunal. A tribunal member must not be required to communicate the information to the Federal Court or the Federal Circuit Court, or give the information in evidence before either Court. The information may be considered by either Court if a fresh disclosure of the information is made by a ministerial declaration under subsection 503A(3) or subsection 503B(6). The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsections 503A(4A) and (5A).

Item 552 - Section 503B (heading)

1084.       Item 552 updates the references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to section 503B. The heading now reads ‘Protection of confidential information disclosed to Federal Court or Federal Circuit and Family Court of Australia (Division 2)-permanent non-disclosure orders’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 553 - Subsection 503B(1)

1085.       Item 553 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 503B(1). Section 503B currently deals with the protection of confidential information disclosed to Federal Court or Federal Circuit Court through the making of non-disclosure orders. Subsection 503B(1) currently provides that the Federal Court or Federal Circuit Court may make orders to ensure the non-disclosure of confidential information to an applicant in relation to the substantive proceedings, a legal representative of the applicant or to any other person. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsection 503B(1).

Item 554 - Subsection 503B(2)

1086.       Item 554 updates the reference to ‘the Federal Court’s or Federal Circuit Court’s orders’ to be ‘the orders of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2)’ in subsection 503B(2). Section 503B currently deals with the protection of confidential information disclosed to Federal Court or Federal Circuit Court through the making of non-disclosure orders. Subsection 503B(2) currently provides for the orders the Federal Court or Federal Circuit Court may make in relation to non-disclosure of confidential information disclosed to the Court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 503B(2).

Items 555 and 556 - Paragraph 503B(2)(c), and subsections 503B(4), (5), (6), (7), (8), (10) and (11)

1087.       Items 555 and 556 update references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in section 503B. Section 503B currently deals with the protection of confidential information disclosed to Federal Court or Federal Circuit Court through the making of non-disclosure orders. Paragraph 503B(2)(c) currently provides for the Federal Court or Federal Circuit Court to make an order ensuring that no person has access to a file or record of the Court that contains the information, without the consent of the Court. Subsection 503B(4) currently provides that the powers of the Federal Court and Federal Circuit Court under section 503B are to be exercised by a single Judge of each respective Court. Subsection 503B(5) currently lists criteria to which the Federal Court or the Federal Circuit Court must have regard for making a non-disclosure order. Subsections 503B(6) and (7) currently provide for the disclosure of information to the Federal Court or the Federal Circuit Court for the purposes of deciding whether or not to make a non-disclosure order in relation to that information. Subsection 503B(8) currently provides that the Federal Court or the Federal Circuit Court may, by order, vary or revoke a non-disclosure order made under subsection 503B(1) if both the Minister and the applicant in the substantive proceedings consent. Subsections 503B(10) and (11) relate to declarations made by the Minister under subsection 503A(3). The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of paragraph 503B(2)(c), and subsections 503B(4), (5), (6), (7), (8), (10) and (11).

Item 557 - Subsection 503B(14) (table item 1, column headed ‘In the case of these proceedings…’)

1088.       Item 557 updates the reference to the ‘Federal Circuit Court’s jurisdiction’ to be ‘jurisdiction of the Federal Circuit and Family Court of Australia (Division 2)’ in the table in subsection 503B(14). Section 503B currently deals with the protection of confidential information disclosed to Federal Court or Federal Circuit Court through the making of non-disclosure orders. Subsection 503B(14) provides a table identifying the applicant for different types of proceedings that may be brought under the Act for the purposes of section 503B. Table item 1 currently provides for proceedings within the Federal Circuit Court’s jurisdiction under section 476. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of table item 1 in subsection 503B(14).

Item 558 - Section 503C (heading)

1089.       Item 558 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in the heading to section 503C. The heading now reads ‘Protection of confidential information disclosed to Federal Court or Federal Circuit and Family Court of Australia (Division 2)-interim non-disclosure orders’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 559 - Subsection 503C(1)

1090.       Item 559 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 503C(1). Subsection 503C(1) currently provides that the Minister must give the Federal Court or the Federal Circuit Court written notice at least 7 days in advance of making an application for a permanent non-disclosure order under subsection 503B(1). The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 503C(1).

Item 560 - Subsection 503C(3)

1091.       Item 560 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsection 503C(3). Subsection 503C(3) currently provides that the Federal Court or the Federal Circuit Court may make interim non-disclosure orders to protect confidential information before considering an application for a permanent non-disclosure order, or to not interfere with the Minister’s consideration of whether to authorise disclosure of the information to the courts. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsection 503C(3).

Item 561 - Paragraph 503C(3)(c)

1092.       Item 561 repeals paragraph 503C(3)(c) and replaces it with new paragraph (c), which refers to ‘the consideration of the subsection 503B(1) application by the Federal Court or the Federal Circuit and Family Court of Australia (Division 2)’. Subsection 503C(3) provides for an interim non-disclosure order. Paragraph 503C(3)(c) currently provides that the Federal Court or the Federal Circuit Court may make orders to ensure the non-disclosure of certain information in circumstances that might undermine, prejudice or pre-empt consideration of the matter by the Federal Court or the Federal Circuit Court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of paragraph 503C(3)(c).

Item 562 - Paragraph 503C(3)(d)

1093.       Item 562 updates the reference to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in paragraph 503C(3)(d). Subsection 503C(3) provides for an interim non-disclosure order. Paragraph 503C(3)(d) currently provides that the Federal Court or the Federal Circuit Court may make orders to ensure the non-disclosure of certain information in circumstances that might undermine, prejudice or pre-empt consideration by the Minister as to whether to make a declaration under subsection 503A(3) authorising the disclosure of the information to the Federal Court or the Federal Circuit Court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of paragraph 503C(3)(d).

Item 563 - Subsection 503C(4)

1094.       Item 563 updates the reference to ‘the Federal Court’s or the Federal Circuit Court’s orders’ to be ‘the orders of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2)’ in subsection 503C(4). Subsection 503C(4) currently provides orders that the Federal Court or the Federal Circuit Court may make to ensure the non-disclosure of certain information in circumstances that might undermine, prejudice or pre-empt consideration of the relevant matter by the Federal Court, the Federal Circuit Court or the Minister. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of subsection 503C(4).

Item 564 - Paragraph 503C(4)(c)

1095.       Item 564 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in paragraph 503C(4)(c). Subsection 503C(4) currently provides for orders that the Federal Court or the Federal Circuit Court may make to ensure the non-disclosure of certain information in circumstances that might undermine, prejudice or pre-empt consideration of the relevant matter by the Federal Court, the Federal Circuit Court or the Minister. Paragraph 503C(4)(c) currently provides for the Federal Court or the Federal Circuit Court to make an order ensuring that no person has access to a file or record of the Court that contains the information, without consent from the Court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of paragraph 503C(4)(c).

Item 565 - Subsections 503C(6) and (7)

1096.       Item 565 updates references to the ‘Federal Circuit Court’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in subsections 503C(6) and (7). Subsection 503C(6) currently provides that the powers of the Federal Court are to be exercised by a single Judge of the Federal Court and the powers of the Federal Circuit Court are to be exercised by a single Judge of the Federal Circuit Court. Subsection 503C(7) provides that the Federal Court or the Federal Circuit Court may, by order, vary or revoke an interim non-disclosure order made under subsection 503C(3) if both the Minister and the applicant in the substantive proceedings consent. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsections 503C(6) and (7).

 

Mutual Assistance in Criminal Matters Act 1987

Item 566 - Subsection 3(1) (definition of eligible Federal Circuit Court Judge )

1097.       Item 566 repeals the definition of ‘eligible Federal Circuit Court Judge’ in subsection 3(1) of the Mutual Assistance in Criminal Matters Act 1987 .  Subsection 3(1) provides definitions of expressions used in the Act.  This definition will be replaced by use of the term ‘eligible Judge’ throughout provisions in the Act under which Judges of the Federal Circuit Court of Australia can perform functions (see item 567).  This amendment appropriately reflects the continuation of Federal Circuit Court Judges as Judges of the FCFC (Division 2).

Item 567 - Subsection 3(1)

1098.       Item 567 inserts a definition of ‘eligible Judge’ in subsection 3(1).  Subsection 3(1) provides definitions of expressions used in the Act.  An ‘eligible Judge’ will mean a ‘Judge of the Federal Circuit and Family Court of Australia (Division 2)’. The expression ‘eligible Judge’ will be used throughout provisions in the Act under which FCFC (Division 2) Judges can perform functions.  This item operates with item 566, which removes the definition of ‘eligible Federal Circuit Court Judge’.

1099.       The new expression ‘eligible Judge’ will not alter the nature of the functions which are conferred under the legislation on Federal Circuit Court Judges under their new title. 

Item 568 - Subsection 3(1) (definition of executing officer )

1100.       Item 568 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in the definition of ‘executing officer’ in subsection 3(1). Section 3 provides definitions of expressions used in the Act.  The expression ‘eligible Judge’ will be defined in the Act (see item 567).  This amendment appropriately reflects the continuation of Federal Circuit Court Judges as Judges of the FCFC (Division 2).

Item 569 - Paragraphs 13(2)(a) and (b)

1101.       Item 569 replaces the references to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in paragraphs 13(2)(a) and (b). Section 13 provides for the taking of evidence or production of documents by an eligible Federal Circuit Court Judge.  The expression ‘eligible Judge’ will be defined in the Act (see item 567).  This amendment appropriately reflects the continuation of Federal Circuit Court Judges as Judges of the FCFC (Division 2) and does not alter the powers or functions conferred under section 13.

Item 570 - Subsections 13(2A), (2B), (2C), (2D), and (4) to (5)

1102.       Item 570 replaces the references to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in subsections 13(2A), (2B), (2C), (2D) and (4) to (5). Section 13 provides for the taking of evidence or production of documents by an eligible Federal Circuit Court Judge.  The expression ‘eligible Judge’ will be defined in the Act (see item 567).  This amendment appropriately reflects the continuation of Federal Circuit Court Judges as Judges of the FCFC (Division 2) and does not alter the powers or functions conferred under section 13.

Item 571 - Subsection 13AA(1)

1103.       Item 571 replaces the references to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in subsection 13AA(1). Section 13AA provides for the enforcement of orders relating to the conduct of proceedings under subsection 13(2).  The expression ‘eligible Judge’ will be defined in the Act (see item 567).  This amendment appropriately reflects the continuation of Federal Circuit Court Judges as Judges of the FCFC (Division 2) and does not alter the powers or functions conferred under section 13AA.

Item 572 - Subsection 13AA(2)

1104.       Item 572 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in subsection 13AA(1).  It also replaces the reference to ‘Rules of Court made under the Federal Circuit Court of Australia Act 1999 ’ with ‘Rules of Court made under Chapter 4 of the Federal Circuit and Family Court of Australia Act 2018 ’. It further replaces the reference to the ‘Federal Circuit Court of Australia’ with ‘Federal Circuit Court and Family Court of Australia’. The expression ‘eligible Judge’ will be defined in the Act (see item 567).  These amendments appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and Federal Circuit Court Judges as Judges of the FCFC (Division 2)and do not alter the powers or functions conferred under section 13AA.

Item 573 - Paragraphs 13AB(1)(a) and (b)

1105.       Item 573 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in paragraphs 13AB(1)(a) and (b).  Section 13AB makes provision for laws applying for the purposes of proceeding under section 13.  The expression ‘eligible Judge’ will be defined in the Act (see item 567).  This amendment appropriately reflects the continuation of Federal Circuit Court Judges as Judges of the FCFC (Division 2)and does not alter the powers or functions conferred under section 13AB.

Item 574 - Section 15

1106.       Item 574 replaces the reference to ‘eligible Federal Circuit Court Judge’ with ‘eligible Judge’ in section 15.  Section 15 provides for the Attorney-General to authorise a police officer to apply to an eligible Federal Circuit Court Judge for search warrants.  The expression ‘eligible Judge’ will be defined in the Act (see item 567).  This amendment appropriately reflects the continuation of Federal Circuit Court Judges as Judges of the FCFC (Division 2)and does not alter the powers or functions conferred under section 15.

Item 575 - Subsections 25(2), 31(2), 38C(1) and (2), 38D(1), (3) and (4), 38I(1), 38K(5) and 38N(7)

1107.       Item 575 amends subsections 25(2), 31(2), 38C(1) and (2) and 38D(1), (3) and (4), 38H(1) and (4), 38I(1), 38K(5) and 38N(7) of the Act. Item 542 removes the words ‘eligible Federal Circuit Judge’ from these subsections and replaces them with ‘eligible Judge’. The expression ‘eligible Judge’ will be defined in the Act (see item 567).  This amendment appropriately reflects the continuation of Federal Circuit Court Judges as Judges of the FCFC (Division 2) and does not alter the powers or functions conferred under the subsections.

Item 576 - Section 38Z

1108.       Item 576 amends section 38Z, which provides for offences relating to telephone warrants. Item 526 removes all references to ‘Federal Circuit Judge’, and replaces them with ‘eligible Judge’. The expression ‘eligible Judge’ will be defined in the Act (see item 567).  This amendment appropriately reflects the continuation of Federal Circuit Court Judges as Judges of the FCFC (Division 2)and does not alter the powers or functions conferred under the section.

Item 577 - Paragraph 38ZB(1)(a)

1109.       Item 577 amends paragraph 38ZB(1)(a), which provides (subject also to paragraph (b)) the grounds on which a police officer may, without warrant, arrest a person. Item 527 amends this paragraph by removing the reference to the ‘eligible Federal Circuit Court Judge’ and replacing it with ‘eligible Judge’. The expression ‘eligible Judge’ will be defined in the Act (see item 567).  This amendment appropriately reflects the continuation of Federal Circuit Court Judges as Judges of the FCFC (Division 2)and does not alter the powers or functions conferred under the provision.

Item 578 - Subsection 38ZB(2)

1110.       Item 578 amends subsection 38ZB(2). Subsection 38ZB(2) provides that a person arrested under subsection 38ZB(1) must, as soon as practicable, be brought before a Magistrate or eligible Federal Circuit Court Judge. Item 528 removes the words ‘eligible Federal Circuit Court Judge’ and replaces them with ‘eligible Judge’. The expression ‘eligible Judge’ will be defined in the Act (see item 567).  This amendment appropriately reflects the continuation of Federal Circuit Court Judges as Judges of the FCFC (Division 2)and does not alter the requirements of the subsection.

Item 579 - Section 38ZC (heading)

1111.       Item 579 amends the heading to section 38ZC by replacing the reference to ‘Federal Circuit Court Judges’ with ‘Judges of the Federal Circuit and Family Court of Australia (Division 2)’. The heading will now read ‘Judges of the Federal Circuit and Family Court of Australia (Division 2)—consent to nomination’. This amendment appropriately reflects the continuation of Federal Circuit Court Judges as Judges of the FCFC (Division 2).

Item 580 - Subsections 38ZC(1) and (2)

1112.       Item 580 amends subsections 38ZC(1) and (2). Subsection 38ZC(1) provides that a Judge of the Federal Circuit Court of Australia may, by writing, consent to be nominated by the Attorney-General under subsection (2). Subsection 38ZC(2) provides that the Attorney-General may, by writing, nominate a Judge of the Federal Circuit Court of Australia in relation to whom a consent is in force under subsection (1) to be an eligible Federal Circuit Court Judge for the purposes of the Act. Item 530 removes the references to the ‘Federal Circuit Court of Australia’ in both subsections and replaces them with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment appropriately reflects the continuation of Federal Circuit Court Judges as Judges of the FCFC (Division 2) and does not substantively alter the operation of the subsections.

1113.       The validity of existing consents and nominations would not be affected by these amendments by virtue of item 17 of Schedule 10.

Item 581 - Subsection 38ZC(2)

1114.       Item 581 amends subsection 38ZC(2) to omit the words ‘ eligible Federal Circuit Court Judge’ and substitutes them with ‘eligible Judge’. This amendment makes the necessary nomenclature revisions to this subsection. The expression ‘eligible Judge’ will be defined in the Act (see item 567).  This amendment appropriately reflects the continuation of Federal Circuit Court Judges as Judges of the FCFC (Division 2) and does not alter the requirements of the subsection.

Item 582 - Section 38ZD (heading)

1115.       Item 582 amends the heading to section 38ZD, which currently reads ‘Magistrates and Federal Circuit Court Judges—personal capacity’. Item 532 omits the reference to ‘Federal Circuit Court Judges’ and replaces it with ‘Judges of the Federal Circuit and Family Court of Australia (Division 2)’. The new heading will read ‘Magistrates and Judges of the Federal Circuit and Family Court of Australia (Division 2)—personal capacity’. This amendment makes the necessary nomenclature revisions to this heading.

Item 583 - Subsections 38ZD(1) and (3)

1116.       Item 583 amends subsections 38ZD(1) and (3). Subsection 38ZD(1) provides that a function or power conferred on a Magistrate or eligible Federal Circuit Court Judge by this Act is conferred on the Magistrate or Judge in a personal capacity and not as a court or a member of a court. Subsection 38ZD(3) provides that a Magistrate or eligible Federal Circuit Court Judge has, in relation to the performance or exercise of a function or power conferred on the Magistrate or Judge by this Act, the same protection and immunity as if he or she were exercising that function or power as, or as a member of, the Court of which the Magistrate or Judge is a member. This item omits the references to ‘eligible Federal Circuit Court Judge’ and replaces them with ‘eligible Judge’. The expression ‘eligible Judge’ will be defined in the Act (see item 567).  This amendment appropriately reflects the continuation of Federal Circuit Court Judges as Judges of the FCFC (Division 2)and does not alter the powers or functions conferred under the subsections.

Item 584 - Paragraph 44(c)

1117.       Item 584 amends paragraph 44(c) of the Act. Paragraph 44(c) provides that the Governor-General may make regulations prescribing the practice and procedure in relation to the performance by Magistrates or eligible Federal Circuit Court Judges of functions under this Act. The Item omits all references to ‘eligible Federal Circuit Court Judges’ in the paragraph and replaces these references with ‘eligible Judges’. The expression ‘eligible Judge’ will be defined in the Act (see item 567).  This amendment appropriately reflects the continuation of Federal Circuit Court Judges as Judges of the FCFC (Division 2) and does not alter the power to make regulations.

 

My Health Records Act 2012

Item 585 - Paragraphs 45C(1)(b), 50C(1)(b), 79(3)(b), 80(3)(b) and 81(3)(b)

1118.       Item 585 repeals paragraphs 45C(1)(b), 50C(1)(b), 79(3)(b), 80(3)(b) and 81(3)(b) of the My Health Records Act 2012 and replaces them with new paragraphs.

1119.       Paragraph 45C(1)(b) provides that if any person suffers loss or damage as a result of anything done by an entity that contravenes section 45A or 45B, the person may bring an action for the amount of the loss or damage against the entity in the Federal Circuit Court of Australia. Paragraph 50C(1)(b) provides that if any person suffers loss or damage as a result of anything done by an entity that contravenes section 50A or 50B, the person may bring an action for the amount of the loss or damage against the entity in   the Federal Circuit Court of Australia. Paragraph 79(3)(b) provides that the Federal Circuit Court of Australia is a relevant court in relation to the civil penalty provisions of the Act, for the purposes of Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 . Paragraph 80(3)(b) provides that the Federal Circuit Court of Australia is a relevant court in relation to the provisions of the Act, for the purposes of Part 6 of the Regulatory Powers (Standard Provisions) Act 2014 . Paragraph 81(3)(b) provides that the Federal Circuit Court of Australia is a relevant court in relation to the provisions of the Act, for the purposes of Part 7 of the Regulatory Powers (Standard Provisions) Act 2014 .

1120.       This item repeals each of these paragraphs and replaces them with new paragraphs, which replace the references to the ‘Federal Circuit Court of Australia’ with references to the ‘Federal Circuit and Family Court of Australia (Division 2)’. The amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively alter the operation of subsections.

 

Narcotic Drugs Act 1967

Item 586 - Subsection 4(1) (paragraph (b) of the definition of relevant court )

1121.       Item 586 repeals paragraph (b) of the definition of ‘relevant court’ in subsection 4(1) of the Narcotic Drugs Act 1967 . The definition currently provides that the Federal Circuit of Australia is a relevant court for the purpose of the Act. Item 536 substitutes a new paragraph, which replaces the reference to ‘the Federal Circuit Court of Australia’ with ‘the Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of the definition.

 

National Cancer Screening Register Act 2016

Item 587 - Paragraph 24(3)(b)

1122.       Item 587 amends paragraph 24(3)(b) of the National Cancer Screening Register Act 2016 , which provides that the Federal Circuit Court of Australia is, for the purposes of Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 , a relevant court in relation to the civil penalty provisions of the National Cancer Screening Register Act 2016 . Item 537 removes the reference to the ‘Federal Circuit Court’ and replaces it with ‘Federal Circuit and Family Court of Australia (Division 2)’ to reflect the nomenclature changes associated with the new court structure.

 

National Consumer Credit Protection Act 2009

Item 588 - Subsection 5(1) (definition of Federal Circuit Court )

1123.       Item 588 repeals the definition of ‘Federal Circuit Court’ in subsection 5(1) of the National Consumer Credit Protection Act 2009 . The definition provides that the ‘Federal Circuit Court’ means the Federal Circuit Court of Australia. The definition is no longer required as the Federal Circuit Court will be continued as ‘Federal Circuit and Family Court of Australia (Division 2)’. Where references in the Act are made to the ‘Federal Circuit and Family Court of Australia (Division 2)’ the title of that Court is provided in full.

Item 589 - Subsection 5(1) (paragraph (a) of the definition of lower court )

1124.       Item 589 repeals paragraph (a) of the definition of ‘lower court’ in subsection 5(1), which currently refers to the Federal Circuit Court, and replaces it with new paragraph (a) which refers to the FCFC (Division 2). This appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 590 - Subsection 5(1) (paragraph (a) of the definition of relevant superior court )

1125.       Item 590 amends the definition of paragraph (a) of ‘relevant superior court’ in subsection 5(1). Currently paragraph (a) provides that in relation to the Federal Circuit Court, relevant superior court means the Federal Court. This item amends paragraph (a) to replace the reference to ‘Federal Circuit Court’ with ‘Federal Circuit and Family Court of Australia (Division 2)’. This appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2).

Item 591 - Section 185

1126.       Item 591 amends section 185, which provides a guide to Part 4-3 of the Act relating to the jurisdiction and procedure of the Courts. This item replaces the paragraph of the guide which refers to the ‘Federal Circuit Court’ and with a revised paragraph referring to the ‘Federal Circuit and Family Court of Australia (Division 2)’.

Item 592 - Subsection 187(1) (cell at table item 2, column headed ‘Court on which civil jurisdiction is conferred’)

1127.       Item 592 amends the table in subsection 187(1), which confers jurisdiction on certain courts in relation to civil matters arising under the Act and places specified limits of the exercise of that jurisdiction. In particular, this item amends the table by replacing the references to the ‘Federal Circuit Court’ in item 2 of the table with ‘Federal Circuit and Family Court of Australia (Division 2)’. This appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not change the operation of the subsection.

Item 593 - Section 189 (table)

1128.       Item 593 amends the table in section 189, which provides for the appeal avenues from each of the specified courts. In particular, this item replaces references to the ‘Federal Circuit Court’ with ‘Federal Circuit and Family Court of Australia (Division 2)’. This appropriately reflects the continuation of the Federal Circuit Court as FCFC (Division 2) and does not change the operation of the subsection.

Item 594 - Subsection 191(2)

1129.       Item 594 amends subsection 191(2), which currently provides that Subdivision C of Part 4 - 3 of the Act does not apply to a transfer between the Federal Court and the Federal Circuit Court, except as provided by paragraph 192(2)(b). This item replaces the reference to the ‘Federal Circuit Court’ with ‘Federal Circuit and Family Court of Australia (Division 2)’ to make the necessary nomenclature change to reflect the new court structure.

Item 595 - Subsection 191(2) (note 1)

1130.       Item 595 amends note 1 to subsection 191(2) by replacing the reference to the ‘Federal Circuit Court’ with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not change the intention of note 1.

Item 596 - Subsection 191(2) (note 2)

1131.       Item 596 a mends note 2 to subsection 191(2), which currently provides that transfers from the Federal Court are covered by section 32AB of the Federal Court Act and that transfers from the Federal Circuit Court are covered by section 39 of the Federal Circuit Court Act. As a result of the court reforms, the Federal Circuit Court Act will be repealed, with most of the substantive provisions in that Act being moved into the proposed Federal Circuit and Family Court of Australia Act 2018 . This item amends note 2 to subsection 191(2) of the National Consumer Credit Protection Act 2009 to replace ‘Federal Circuit Court are covered by section 39 of the Federal Circuit Court Act’ with ‘section 120 of the Federal Circuit and Family Court of Australia Act 2018 ’. Section 120 of the Federal Circuit and Family Court of Australia Act 2018 contains the relevant transfer provisions from the FCFC (Division 2), and will result in no change to the current intention of note 2.

Item 597 - Paragraph 199(1)(a)

1132.       Item 597 amends paragraph 199(1)(a), which relates to applications for small claims procedures. In particular, item 14 replaces the reference to the ‘Federal Circuit Court’ with ‘Federal Circuit and Family Court of Australia (Division 2)’. This appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not change the operation of the paragraph.

 

National Disability Insurance Scheme Act 2013

Item 598 - Subparagraphs 73ZE(3)(e)(ii) and 73ZF(2)(e)(ii)

1133.       Item 598 repeals subparagraphs 73ZE(3)(e)(ii) and 73ZF(2)(e)(ii) of the National Disability Insurance Scheme Act 2013 and replaces them with new paragraphs. Subparagraph 73ZE(3)(e)(ii) provides that the Federal Circuit Court is a relevant court in relation to Part 3A of the Act for the purposes of Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 . Subparagraph 73ZF(3)(e)(ii) provides that the Federal Circuit Court is a relevant court in relation to evidential material that relates to a provision mentioned in subsection 73ZF(1) for the purposes of Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 . The new subparagraphs provide that the FCFC (Division 2) is a relevant court for the purposes of the relevant sections. The new subparagraphs appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively change the operation of the subparagraphs.

Item 599 - Paragraph 73ZJ(3)(b)

1134.       Item 599 updates the reference to the ‘Federal Circuit Court of Australia’ to be ‘Federal Circuit and Family Court of Australia (Division 2)’ in paragraph 73ZJ(3)(b) by repealing the paragraph and replacing it with a new one. Section 73ZJ provides for the Commonwealth to pay compensation in specified circumstances for damage to electronic equipment operated as mentioned in section 73ZG or 73ZH of the Act. Paragraph 73ZJ(3)(b) provides that if the Commonwealth and the owner or user fail to agree, the owner or user may institute proceedings in the Federal Circuit Court. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of section 73ZJ.

Item 600 - Paragraphs 73ZK(3)(b), 73ZP(3)(b) and 73ZQ(3)(b)

1135.       Item 600 repeals and replaces paragraphs 73ZK(3)(b), 73ZP(3)(b) and 73ZQ(3)(b). The new paragraphs update the reference to the ‘Federal Circuit Court of Australia’ to be the ‘the Federal Circuit and Family Court of Australia (Division 2)’. Paragraph 73ZK(3)(b) provides that the Federal Circuit Court is a relevant court in relation to the civil penalty provisions of Part 3A of the Act for the purposes of Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 . Paragraph 73ZP(3)(b) provides that the Federal Circuit Court is a relevant court in relation to the provisions of the National Disability Insurance Scheme Act 2013 for the purposes of Part 6 of the Regulatory Powers (Standard Provisions) Act 2014 . Paragraph 73ZQ(3)(b) provides that the Federal Circuit Court is a relevant court in relation to the provisions of the National Disability Insurance Scheme Act 2013 for the purposes of Part 7 of the Regulatory Powers (Standard Provisions) Act 2014 . The new paragraphs appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not substantively change the operation of the paragraphs.

 

National Greenhouse and Energy Reporting Act 2007

Item 601 - Section 7 (paragraph (b) of the definition of court )

1136.       Item 601 repeals paragraph (b) of the definition of ‘court’ in section 7 of the National Greenhouse and Energy Reporting Act 2017 . Paragraph (b) provides that ‘court’ means the Federal Circuit of Australia. Item 555 substitutes a new paragraph, which replaces the reference to ‘the Federal Circuit Court of Australia’ with ‘the Federal Circuit and Family Court of Australia (Division 2)’. This item makes the necessary nomenclature change to reflect the new court structure and does not substantively alter the operation of the definition.

 

National Health Act 1953

Item 602 - Subparagraph 134D(2)(b)(ii)

1137.       Item 603 amends subparagraph 134D(2)(b)(ii) of the National Health Act 1953 by repealing the subparagraph containing a reference to the ‘Federal Circuit Court of Australia’ and substituting a new paragraph which refers to the ‘Federal Circuit and Family Court of Australia (Division 2)’. Section 134D of the National Health Act 1953 was inserted by the Health Legislation Amendment (Improved Medicare Compliance and Other Measures) Act 2018 and which took effect on 1 July 2018 . It provides the relevant courts for the purposes of Part 4 of the Regulatory Powers Act 2014. This item appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of the provision.

 

National Health Security Act 2007

Item 603 - Subsections 62(1) and 79A(3)

1138.       Item 603 amends subsections 62(1) and 79A(3) of the National Health Security Act 2007 . Subsection 62(1) provides that if a person has engaged, is engaging, or is about to engage in any conduct that is or would be an offence against the Part 3 of the Act, the Federal Court or the Federal Circuit Court may, on the application of the Secretary, grant an injunction restraining the person from engaging in the conduct. Subsection 79A provides for the Commonwealth to pay compensation in specified circumstances for damage to electronic equipment operated as mentioned in section 67 or 70A of the Act. Subsection 79A(3) provides that if the Commonwealth and the owner or user fail to agree, the owner or user may institute proceedings in the Federal Court or the Federal Circuit Court. This item removes the references in both subsections to the ‘Federal Circuit Court of Australia’ and replaces them with ‘Federal Circuit and Federal Court of Australia (Division 2)’. The item makes the necessary nomenclature change to reflect the new court structure and does not substantively alter the operation of the subsections.

 

National Measurement Act 1960

Item 604 - Section 18LL

1139.       Item 604 amends section 18LL of the National Measurement Act 1960 , which provides an overview of Division 4 of Part VIII of the Act. The Item omits paragraph (3) of the section which provides that the Secretary may apply to the Federal Court or the Federal Circuit Court for an injunction to restrain a person from conduct that would be an offence under Part IV, V, VI or VII of the Act. Item 557 replaces this paragraph with a new paragraph that provides the Secretary may apply to the Federal Court or the FCFC (Division 2) for an injunction to restrain a person from conduct that would be an offence under Part IV, V, VI or VII. This amendment reflects the updated nomenclature associated with the new court structure and does not substantively alter the operation of the section.

 

Item 605 - Subsections 18LN(1), 18LO(1) and 18QE(1)

1140.       Item 605 amends subsections 18LN(1), 18LO(1) and 18QE(1). Subsection 18LN(1) deals with enforcing undertakings and provides that if the Secretary considers that a person who gave an undertaking under section 18LM has breached a term of the undertaking, the Secretary may apply to the Federal Court or the Federal Circuit Court for an order under subsection 18LM(2).

1141.       Subsection 18LO(1) deals with injunctions and provides that if a person has engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute an offence against Part IV, V, VI or VII, the Federal Court or the Federal Circuit Court may, on the application of the Secretary, grant a specified  injunction.

1142.       Subsection 18QE(1) provides that if the Secretary considers that a licensee who gave an undertaking under section 18QD has breached a term of the undertaking, the Secretary may apply to the Federal Court or the Federal Circuit Court for an order under subsection 18QE(2).

1143.       This item 558 removes all references to the ‘Federal Circuit Court of Australia’ in the subsections and replaces them with references to the ‘Federal Circuit and Family Court of Australia (Division 2)’. These amendments reflect the updated nomenclature associated with the new court structure and does not substantively alter the operation of the subsections.

Item 606 - Section 19K (heading)

1144.       Item 606 amends the heading to section 19K. The heading currently reads ‘Jurisdiction of the Federal Court of Australia and the Federal Circuit Court of Australia’. The item removes the reference to the ‘Federal Circuit Court of Australia’ and replaces it with ‘ Federal Circuit and Family Court of Australia (Division 2)’. The new heading reads ‘ Jurisdiction of the Federal Court of Australia and the Federal Circuit and Family Court of Australia (Division 2)’.

Item 607 - Section 19K

1145.       Item 607 amends section 19K. Section 19K provides that jurisdiction is conferred on the Federal Court and the Federal Circuit Court in respect of matters arising under section 18LN, section 18LO, section 18MR (only in relation to the Federal Court of Australia), and section 18QE.

1146.       This item removes the reference to the ‘Federal Circuit Court of Australia’ and replaces it with ‘Federal Circuit and Federal Court of Australia (Division 2)’. This amendment reflects the updated nomenclature associated with the new court structure and does not substantively alter the operation of the section.

 

National Redress Scheme for Institutional Child Sexual Abuse Act 2018

Item 608 - Paragraph 190(3)(b)

1147.       Item 608 amends paragraph 190(3)(b) of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 , which provides that f or the purposes of Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 , the Federal Circuit Court is a relevant court in relation to the civil penalty provisions of the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 . This item removes the reference to the ‘Federal Circuit Court of Australia’ and replaces it with ‘Federal Circuit and Federal Court of Australia (Division 2)’. This amendment reflects the updated nomenclature associated with the new court structure and does not substantively alter the operation of the paragraph.

 

National Vocational Education and Training Regulator Act 2011

Item 609 - Section 3 (definition of Federal Circuit Court )

1148.       Item 609 repeals the definition of ‘Federal Circuit Court’ in section 3 of the National Vocational Education and Training Regulator Act 2011 , which provides definitions for terms contained within the Act. The definition is no longer required as the Federal Circuit Court will be continued as ‘Federal Circuit and Family Court of Australia (Division 2)’. Where references in the Act are made to the ‘Federal Circuit and Family Court of Australia (Division 2)’ the title of that Court is provided in full.

Item 610 - Section 3, paragraph (b) (definition of issuing officer )

1149.       Item 610 amends paragraph (b) of the definition of ‘issuing officer’ in section 3. Paragraph (b) currently provides that an issuing officer means a Judge of the Federal Circuit Court in relation to whom a consent under subsection 91(1) and a nomination under subsection 91(2) are in force. This item removes the reference to the ‘Federal Circuit Court’ and replaces it with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment does not have an effect on the operation of this definition, and reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2).

Item 611 - Heading to section 91

1150.       Item 611 amends the heading to section 91 by replacing the reference to ‘Federal Circuit Court’ with ‘Federal Circuit and Family Court of Australia (Division 2)’. The heading will now read ‘Judges of the Federal Circuit and Family Court of Australia (Division 2)—consent to nomination’.

Item 612 - Subsections 91(1) and (2) and 92(2)

1151.       Item 612 amends subsections 91(1) and (2) and 92(2) by removing the references to the ‘Federal Circuit Court’ and replacing them with ‘Federal Circuit and Family Court of Australia (Division 2)’. These sections relate to the powers of issuing officers. This item allows these subsections to appropriately reflect the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2), and does not impact on the operation of these subsections.

Item 613 - Section 137 (heading)

1152.       Item 613 amends the heading to section 137 by replacing the reference to ‘Federal Circuit Court’ with ‘Federal Circuit and Family Court of Australia (Division 2)’. The heading will now read ‘Federal Court or Federal Circuit and Family Court of Australia (Division 2) may impose pecuniary penalty’.

Item 614 - Subsections 137(1), (2), (3) and (4)

1153.       Item 614 amends subsections 137(1), (2), (3) and (4) by removing references to the ‘Federal Circuit Court’ and replacing them with ‘Federal Circuit and Family Court of Australia (Division 2)’. These subsections deal with the ability of the Federal Court or the Federal Circuit Court to impose pecuniary penalty where a person has breached a civil penalty provision. This item amends these subsections to appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2), and does not impact on the operation of the subsections.

Item 615 - Section 139

1154.       Item 615 amends section 139 by removing the reference to the ‘Federal Circuit Court’ and replacing it with ‘Federal Circuit and Family Court of Australia (Division 2)’. Section 139 deals with the recovery of a pecuniary penalty by the Commonwealth. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not impact on the operation of the section.

Item 616 - Subsections 140(4), 141(2) and (4)

1155.       Item 616 amends subsections 140(4), 141(2) and (4) by removing the references to the ‘Federal Circuit Court’ and replacing them with ‘Federal Circuit and Family Court of Australia (Division 2)’. These subsections deal with the gathering of information by the National VET Regulator in relation to an application for a pecuniary penalty, and continuing and multiple contraventions of civil penalty provisions. This item makes the necessary nomenclature changes to these subsections and does not impact on the operation of the subsections.

Item 617 - Section 142

1156.       Item 617 amends section 142 by removing the reference to the ‘Federal Circuit Court’ and replacing it with ‘Federal Circuit and Family Court of Australia (Division 2)’. Section 142 provides that the Federal Court or the Federal Circuit Court must not order a person to pay a pecuniary penalty for contravening a civil penalty provision if the person has been convicted of an offence against the Act constituted by conduct substantially the same as the conduct constituting the contravention. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not impact on the operation of this section.

Item 618 - Paragraph 147(1)(b)

1157.       Item 618 amends paragraph 147(1)(b) which provides that if the National VET Regulator considers that a person who gave an undertaking under section 146 has breached any of its terms, the Regulator may apply to the Federal Circuit Court . This item repeals paragraph (b) which refers to ‘the Federal Circuit Court’ and replaces it with new paragraph (b) which reads ‘the Federal Circuit and Family Court of Australia (Division 2)’. This amendment makes the necessary nomenclature changes to this paragraph.

Item 619 - Sections 150, 151, 152 and 153

1158.       Item 619 amends sections 150, 151, 152 and 153 by removing all references to ‘Federal Circuit Court’ and replacing these with ‘Federal Circuit and Family Court of Australia (Division 2)’. These sections deal with injunctions, which the National VET Regulator may apply for if a person has engaged, is engaging or proposing to engage, in any conduct that would be in contravention of the Act. This item allows these subsections to appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2), and does not impact on the operation of these sections.

Item 620 - Section 154 (heading)

1159.       Item 620 amends the heading to section 154 by replacing the reference to ‘Federal Circuit Court’ with ‘Federal Circuit and Family Court of Australia (Division 2)’. The heading will now read ‘Other powers of the Federal Court or Federal Circuit and Family Court of Australia (Division 2) unaffected’.

Item 621 - Section 154

1160.       Item 621 amends section 154 by removing the reference to the ‘Federal Circuit Court’ and replacing it with ‘Federal Circuit and Family Court of Australia (Division 2)’. Section 154 provides that the powers conferred on the Federal Court or the Federal Circuit Court under this Division are in addition to, and not instead of, any other powers of the Court, whether conferred by the Act or otherwise. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not impact on the operation of this section.

Item 622 - Paragraph 232B(b)

1161.       Item 622 amends paragraph 232B(b), which provides that a charge imposed by the National Vocational Education and Training Regulator (Charges) Act 2012 is recoverable as a debt due to the Commonwealth in the Federal Circuit Court . This item removes the reference to the ‘Federal Circuit Court’ and replaces it with ‘Federal Circuit and Family Court of Australia (Division 2)’. This amendment makes the necessary nomenclature changes to the paragraph.

 

Offshore Petroleum and Greenhouse Gas Storage Act 2006

Item 623 - Section 7 (definition of Federal Circuit Court )

1162.       Item 623 repeals the definition of ‘Federal Circuit Court’ in section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 , which provides definitions for terms contained within the Act. The definition of Federal Circuit Court is no longer required as the Federal Circuit Court will be continued as the FCFC (Division 2). Where reference is made to the FCFC (Division 2) in the Act, the reference is provided in full.

Item 624 - Subsection 602C(6)

1163.       Item 624 amends subsection 602C(6), which provides that for the purposes of Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 , a magistrate, or a Judge of the Federal Circuit Court, is an   issuing officer   in relation to the listed National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) laws and the information mentioned in subsection 602C(2). This item removes the reference to the ‘Federal Circuit Court’ and replaces it with ‘ Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not substantively alter the operation of the subsection.

Item 625 - Paragraph 602C(8)(b)

1164.       Item 625 repeals paragraph 602C(8)(b) and replaces it with a new one.  Paragraph 602C(8)(b) currently provides that for the purposes of Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 , the Federal Circuit Court is a   relevant court   in relation to the listed NOPSEMA laws and the information mentioned in subsection 602C(2). New paragraph 602C(8)(b) replaces the reference to the ‘Federal Circuit Court’ with ‘ Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of the paragraph.

Item 626 - Subsection 602D(5)

1165.       Item 626 amends subsection 602D(5), which provides that f or the purposes of Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 , a magistrate, or a Judge of the Federal Circuit Court, is an   issuing officer   in relation to evidential material that relates to an offence or civil penalty provision mentioned in subsection 602D(1). This item removes the reference to the ‘Federal Circuit Court’ and replaces it with ‘ Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of Judges of the Federal Circuit Court as Judges of the FCFC (Division 2) and does not substantively alter the operation of the subsection.

Item 627 - Paragraphs 602D(7)(b), 611B(3)(b) and 611J(3)(b)

1166.       Item 627 repeals paragraphs 602D(7)(b), 611B(3)(b) and 611J(3)(b), which reference the ‘Federal Circuit Court’, and replaces them with new paragraphs. Paragraphs 602D(7)(b), 611B(3)(b) and 611J(3)(b) provide that the Federal Circuit Court is a relevant court for the purposes of Parts 3, 4 and 7, respectively of the Regulatory Powers (Standard Provisions) Act 2014 . The new paragraphs refer to the ‘Federal Circuit and Family Court of Australia (Division 2)’. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of the paragraphs.

 

Ombudsman Act 1976

Item 628 - Subsection 3(1) (definition of chief executive officer)

1167.       Item 628 inserts a new definition of ‘chief executive officer’ into subsection 3(1) to the Ombudsman Act 1976 . The definition largely replicates the effect of the current definition of ‘chief executive officer of a court or tribunal’ in the Act, with one key difference. Under the new court structure, the positions of Chief Executive Officer of the Federal Circuit Court and Chief Executive Officer of the Family Court will be abolished. These positions were established to provide support to the Chief Justice and the Chief Judge of these courts, respectively. The Chief Justice of the FCFC (Division 1) and the Chief Judge of the FCFC (Division 2) will now be supported by the Chief Executive Officer and Principal Registrar of the Federal Court. This change is reflected in the new definition. The item also includes some minor stylistic changes compared with the current wording of the definition, which clarify that the ‘chief executive officer’ means a specific person in relation to a specified court or tribunal.

Item 629 - Subsection 3(1) (definition of chief executive officer)

1168.       Item 629 repeals the definition of ‘chief executive officer of a court or tribunal’ in subsection 3(1). Due to the amendments made by item 628 above, inserting a new definition of ‘chief executive officer’, this definition is no longer necessary.

Item 630 - Subsection 3(1) (paragraph (bb) of the definition of prescribed authority )

1169.       Item 630 repeals paragraph (bb) of the definition of ‘prescribed authority’ in subsection 3(1) of the Act. Currently, paragraph (bb) of the definition of prescribed authority means a chief executive officer of a court or tribunal. Following the amendments made by item 581 above, item 582 substitutes a new paragraph (bb) of the definition, which provides ‘ a chief executive officer, in relation to a court or tribunal’. The amendment is consequential and does not change the meaning of the definition.

Item 631 - Subsection 3(1) (subparagraph (c)(i) of the definition of prescribed authority )

1170.       Item 631 repeals subparagraph (c)(i) of the definition of ‘prescribed authority’ in subsection 3(1), and substitutes it with a new subparagraph (c)(i). The new subparagraph provides that the definition of prescribed authority means the person holding or performing the duties of an office established by an enactment other than the chief executive officer, in relation to a court ortribunal, or a person who, for the purposes of the Act, is to be taken to be a member of the staff of a court or tribunal. This follows the amendment made by item 629 above. The amendment is consequential and does not change the meaning of the definition.

Item 632 - Paragraph 3(14)(a)

1171.       Item 632 repeals paragraph 3(14)(a) and replaces it with a new paragraph. Paragraph 3(14)(a)  provides that for the purposes of the Act the officers (other than the chief executive officer) of a court or tribunal are taken to be members of the staff of the chief executive officer of the court or tribunal. The item inserts a new paragraph 3(14)(a) which, when read with item 633, provides that for the purposes of the Act the officers of a court or tribunal (other than the chief executive officer) are to be taken to be members of the staff of the court or tribunal. This amendment in this particular item is a stylistic change and does not change the operation of paragraph (a).

Item 633 - Subsection 3(14)

1172.       Item 633 amends subsection 3(14). Subsection (14) currently provides that for the purposes of the Act the persons specified are taken to be members of the staff of the chief executive officer of the court or tribunal. The item amends this section to provide that, for the purposes of the Act, the persons specified are taken to be members of the staff of the court or tribunal. This amendment is made to more accurately reflect the functions of the persons specified.

Item 634 - Paragraph 3(16)(a)

1173.       Item 634 repeals paragraph 3(16)(a), which provides that in relation to anything that concerns a chief executive officer of a court or tribunal a reference to which this subsection applies has effect in accordance with subsection 3(18). The item inserts a new paragraph (a), which provides that in relation to anything that concerns a chief executive officer of a court or tribunal a reference to which this subsection applies has effect in accordance with subsection 3(18) . The amendment is consequential and does not change the operation of the paragraph.

Item 635 - Paragraph 3(18)(c)

1174.