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2004-2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
Jurisdiction of the Federal Magistrates Court Legislation Amendment Bill
2005
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Philip Ruddock, MP)
Jurisdiction of the Federal Magistrates Court Legislation Amendment Bill
2005
OUTLINE
The purpose of the Bill is to extend the jurisdiction of the Federal
Magistrates Court (FMC) under the Trade Practices Act 1974 (TP Act) and to
confer jurisdiction on the FMC in matters transferred to it by the Federal
or Family Court, in personam matters under the Admiralty Act 1988 and
appeals against departure prohibition orders under the Child Support
(Registration and Collection) Act 1988.
A review of the first two years of operation of the FMC in 2003 found that
the FMC was operating successfully in dealing with less complex family law
and other general federal law disputes, and was enabling the Family and
Federal Courts to focus on more complex and lengthy matters. The outcome
of the FMC Review provides a sound basis for expanding the jurisdiction of
the FMC.
The FMC currently has jurisdiction to deal with most family law and child
support matters. That jurisdiction is conferred under the Family Law Act
1975 and relevant child support legislation and is concurrent with the
jurisdiction of the Family Court.
The FMC also has jurisdiction in various areas of general federal law,
including consumer protection matters under the TP Act (Divisions 1 (unfair
practices) and 1A (product safety and product information) of Part V),
bankruptcy matters and matters arising under the Migration Act 1958.
Jurisdiction in general federal law matters is conferred on the FMC under
subject-specific legislation and is concurrent with the jurisdiction of the
Federal Court.
It was always the Government's intention that the FMC would deal with a
wide range of lower level work of the Family and Federal Court, and thus
provide more time and resources in the superior courts to deal with more
complex matters. The Bill also provides further opportunities for
litigants to take advantage of the streamlined and accessible forum offered
by the FMC.
The amendments expanding the FMC's trade practices jurisdiction implement
recommendations of the FMC Review and the Government's response in June
2004 to the Senate Economics References Committee's March 2004 report, The
Effectiveness of the Trade Practices Act 1974 in Protecting Small Business.
The new jurisdiction would replicate as closely as possible the
jurisdiction of lower level State courts. It would enable the FMC to deal
with claims under Parts IVA, IVB, V and VA of the TP Act and to award
damages up to an amount of $750,000 rather than $200,000.
The amendments would give the FMC jurisdiction in any matter transferred to
it by the Federal or Family Court, as recommended by the FMC Review. They
would also give the FMC other suitable, less complex jurisdiction under the
Admiralty Act and Child Support (Registration and Collection) Act.
Financial impact statement
The amendments are not expected to have any significant financial impact.
Jurisdiction of the Federal Magistrates Court Legislation Amendment Bill
2005
NOTES ON CLAUSES
Clause 1: Short title
Clause 1 is a formal provision specifying the short title of the Bill.
Clause 2: Commencement
Sections 1-3 of the Act will commence on the day on which the Act receives
the Royal Assent. Schedules 1, 2 and 3 of the Act will commence on the
28th day after the day on which the Act receives the Royal Assent.
Clause 3: Schedule(s)
This clause provides that each Act that is specified in a Schedule is
amended as set out in that Schedule.
Schedule 1 - Jurisdiction over trade practices
Trade Practices Act 1974
Item 1
Item 1 amends subsection 86(1A) to confer new jurisdiction on the FMC in
matters arising under several parts or divisions of the TP Act in respect
of which a civil proceeding is instituted by a person other than the
Minister or the Australian Competition and Consumer Commission (the
Commission).
In addition to the FMC's existing jurisdiction under the consumer
protection provisions of Part V, Division 1 (unfair practices) and Division
1A (product safety and product information), the Bill extends the
jurisdiction of the FMC to include matters arising under Part IVA
(unconscionable conduct), Part IVB (industry codes), Divisions 1AAA
(pyramid selling) and 2A (actions against manufacturers and importers of
goods) of Part V and Part VA (liability of manufacturers and importers for
defective goods).
Under subsection 86(1A), the FMC does not have jurisdiction in a matter in
respect of which a proceeding is instituted by the Minister or the
Commission, including where the proceeding is instituted on behalf of
another person.
Item 2
Item 2 provides that the amendment to section 86(1A) of the TP Act
extending the jurisdiction of the FMC applies in relation to all matters,
including matters arising before the commencement of the Schedule.
For example, the FMC's extended jurisdiction will apply to proceedings
instituted after commencement though concerning matters that arose before
commencement.
Item 3
Item 3 applies the limit on the FMC's jurisdiction in section 86AA to
proceedings under Part VA.
Item 4
Item 4 increases from $200,000 to $750,000 the monetary limit on damages
that can be awarded by the FMC in proceedings under section 82, in relation
to Part IVA, IVB or Part V, and in proceedings under Part VA.
Item 5
Item 5 provides that the amendments to section 86AA apply to proceedings
instituted in the FMC after commencement of the Schedule and to proceedings
instituted in another court before, on or after commencement of the
Schedule that are transferred to the FMC after commencement of the
Schedule.
Schedule 2 - Jurisdiction in proceedings transferred from Family Court or
Federal Court
Family Law Act 1975
Item 1
Item 1 amends section 33B by granting jurisdiction to the FMC to hear any
matter that is the subject of a proceeding transferred to it by the Family
Court under this section.
This amendment will give the FMC non-appellate jurisdiction in matters in
which it would not otherwise have jurisdiction because the jurisdiction has
not been conferred under another provision or there is a limit on the FMC's
jurisdiction, such as matrimonial causes where the value of the property
concerned exceeds a certain limit (section 45A, Family Law Act).
Item 2
Item 2 amends section 33C by granting jurisdiction to the FMC to hear any
matter that is the subject of a proceeding transferred to it by the Family
Court under this section.
This amendment will give the FMC non-appellate jurisdiction in matters
transferred in which it would not otherwise have jurisdiction because the
jurisdiction has not been conferred under another provision or there is a
limit on the FMC's jurisdiction, such as matrimonial causes where the value
of the property concerned exceeds a certain limit (section 45A, Family Law
Act).
Federal Court of Australia Act 1976
Item 3
Item 3 amends section 32AB by granting jurisdiction to the FMC to hear any
matter that is the subject of a proceeding transferred to it by the Federal
Court under this section.
This amendment will give the FMC non-appellate jurisdiction in matters in
which it would not otherwise have jurisdiction because the jurisdiction has
not been conferred under another provision or there is a limit on the FMC's
jurisdiction, such as a limit on the amount of damages that can be awarded
(eg section 86AA of the TP Act).
Item 4
Item 4 provides that the amendments in the Schedule outlined above will
apply in relation to proceedings started before, on or after the
commencement of the Schedule. Thus the amendments will apply to
proceedings that have been commenced in the Federal or Family Court but not
transferred to the FMC before the commencement date.
Schedule 3 - Jurisdiction over certain admiralty actions
Admiralty Act 1988
Item 1
Item 1 amends subsection 9(1) by conferring jurisdiction on the FMC, in in
personam actions. Subsection 9(1) already provides for Federal, State and
Territory courts to have jurisdiction in these matters. Jurisdiction in
respect of limitation proceedings (defined in section 3 of the Admiralty
Act) remains confined to the superior courts referred to in subsection
9(2).
Item 2
Item 1 applies to matters arising before, on or after the commencement of
the Schedule. For example, the FMC would have jurisdiction in respect of
proceedings instituted after commencement concerning matters that arose
before commencement.
Item 3
Item 3 amends subsection 27(1) to give the FMC the same power as the other
courts listed in the subsection have to transfer proceedings to another
court having jurisdiction under the Act in relation to the subject-matter
of the claim.
Item 4
Item 4 extends the remittal power of the Federal Court and State Supreme
Courts to allow them to remit to the FMC - in addition to State and
Territory courts - proceedings commenced as actions in rem.
Item 5
Item 5 confers jurisdiction on the FMC in respect of proceedings remitted
under section 28.
Item 6
The amendments to sections 27 and 28 apply in relation to proceedings
started before, on or after the commencement of this Schedule.
Item 7
Item 7 amends subsection 41(4) by conferring jurisdiction on the FMC in
respect of matters arising under the Rules made pursuant to subsection
41(1).
Item 8
The amendment to section 41 applies to matters arising before, on or after
the commencement of Schedule 3.
Schedule 4 - Jurisdiction over appeals against departure prohibition orders
Child Support (Registration and Collection) Act 1988
Item 1
This item provides that aggrieved persons can appeal to the FMC, or the
Federal Court, against the making of a departure prohibition order.
Item 2
This amendment applies in relation to departure prohibition orders made
before, on, or after the commencement of this Schedule.
Item 3
Item 3 clarifies that an appeal from a decree made by the FMC under s 72Q
lies to the Federal Court rather than to the Family Court.
As appeals from decisions of the Federal Court under section 72Q lie to the
Full Federal Court, it is appropriate that appeals from decisions of the
FMC lie to the Federal Court rather than the Family Court.
Federal Court of Australia Act 1976
Item 4
Paragraph 24(1)(d) of the Federal Court Act currently prohibits the Federal
Court hearing appeals from judgments of the FMC exercising original
jurisdiction under the Child Support (Registration and Collection) Act.
This amendment creates an exception to allow the Federal Court to hear
appeals from judgments of the FMC exercising jurisdiction under s 72Q of
the Child Support (Registration and Collection) Act.