FEDERAL COURT (CRIMINAL PROCEEDINGS) (INTERIM) RULES 2016 (F2016L01167) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT (CRIMINAL PROCEEDINGS) (INTERIM) RULES 2016 (F2016L01167)

EXPLANATORY STATEMENT

 

 

Issued by the authority of the

Judges of the Federal Court of Australia

 

 

Federal Court (Criminal Proceedings) (Interim) Rules 2016

 

 

Authority for Federal Court Rules

Section 59 of the Federal Court of Australia Act 1976 permits the Judges of the Court, or a majority of them, to make rules of Court not inconsistent with that Act.  The rules may provide for the practice and procedure to be followed in the Court and in Registries of the Court.  They may extend to all matters incidental to any such practice or procedure that are necessary or convenient to be prescribed for the conduct of the business of the Court.

 

Under sub-section 59(4) of the Federal Court of Australia Act 1976, the Legislation Act 2003 (other than sections 8, 9, 10 and 16 of that Act) applies in relation to rules of court made by the Court under the Federal Court of Australia Act 1976 or another Act:

(a)           as if a reference to a legislative instrument were a reference to a rule of court; and

(b)          as if a reference to a rule-maker were a reference to the Chief Justice acting on behalf of the Judges of the Court; and

(c)           subject to such further modifications or adaptations as are provided for in regulations made under section 59A of the Federal Court of Australia Act 1976.

 

Background to the Federal Court (Criminal Proceedings) (Interim) Rules 2016

 

Prior to 2009 the Federal Court of Australia had summary criminal jurisdiction under a number of Commonwealth Acts but did not have jurisdiction to deal with indictable offences under any Act.

 

In 2009 the Court was given indictable criminal jurisdiction as a result of amendments to what was then the Trade Practices Act 1974 but which became the Competition and Consumer Act 2010.  The Court now has jurisdiction to deal with indictable offences against sections 44ZZRF and 44ZZRG of that Act in addition to its summary criminal jurisdiction.

 

In 2009 amendments were made to the Federal Court of Australia Act 1976 to deal with the commencement and management of indictable criminal proceedings and criminal appeal proceedings.

 

Interim Rules

The Federal Court (Criminal Proceedings) (Interim) Rules 2016 ("the Interim Rules") apply to indictable criminal proceedings and criminal appeal proceedings before the Federal Court on an interim basis pending the finalisation of comprehensive criminal proceedings rules.

 

The Interim Rules cover topics that are not covered under any other Rules of the Federal Court.  Rule 1.04(2) of the Interim Rules provides that other rules of the Court apply, to the extent that they are relevant and not inconsistent with the Interim Rules, to indictable primary proceedings and criminal appeal proceedings started in the Court on or after the commencement day.

 

The development of comprehensive criminal proceedings rules is well advanced.  Further work is required, however, to consider fully the many comments and suggestions which were made by legal practitioners over the first quarter of 2016 on an exposure draft of those rules.  When enacted, the proposed comprehensive criminal proceedings rules will provide a single source of reference for the conduct of criminal proceedings before the Federal Court.

 

In the meantime, the parties to criminal proceedings should refer to relevant parts of the Federal Court Rules 2011 if issues arise which are not covered by the Interim Rules.  The Court also has its normal power to make orders and give directions if an issue is not resolved by reference to the Federal Court Rules 2011.

 

Topics that are dealt with in the Federal Court Rules 2011 include:

 

*         lodging and filing documents (Division 2.3);

*         service (Part 10);

*         subpoenas (Part 24);

*         affidavits (Division 29.1);

*         summary criminal proceedings (Division 34.2);

*         appeals (Parts 35 and 36);  and

*         contempt (Part 42).

 

The Federal Court Rules 2011 also contain rules for summary criminal proceedings, in Division 34.2.

 

Consultation

 

The Federal Court sought comments on draft criminal proceedings rules from the Law Council of Australia and the Commonwealth Director of Public Prosecution.  The comments that were received have been taken into account in developing the Interim Rules.

 

Human Rights Scrutiny

 

Subsection 8(8) of the Legislation Act provides that Rules of Court made for the Federal Court are not legislative instruments for the purposes of that Act.  As a result the Human Rights (Parliamentary Scrutiny) Act 2011 does not apply to any such Rules of Court and no statement of compatibility for the purposes of that latter Act is included in this Explanatory Statement.

 

Commencement

 

The Interim Rules will come into effect the day after the Rules are registered and will apply to indictable primary proceedings and criminal appeal proceedings commenced in the Court on or after that day.

 

Attachment

 

The Interim Rules are explained in the Attachment.


 

 

ATTACHMENT

 

 

Federal Court (Criminal Proceedings) (Interim) Rules 2016

 

 

Part 1 - Preliminary

 

Division 1.1 - Introduction

 

Rules 1.01, 102 and 1.03 deal with formal matters including the name of the Rules, the commencement date and the source of authority to make rules.

 

Rule 1.04 deals with the application of the Rules and the interaction with other rules of the Court

 

Rule 1.04(1) provides that the Interim Rules apply to indictable primary proceedings and criminal appeal proceedings started on or after the commencement day.  The Interim Rules do not apply to summary criminal proceedings.

 

Rule 1.04(2) provides that the other rules of the Court apply, to the extent that they are relevant and not inconsistent with the Interim Rules, to proceedings started in the Court on or after the commencement day.

 

If an issue which is not covered by the Interim Rules is covered by another rule, that other rule can potentially to fill the gap.  However the Court has power to dispense with any rule if the application of the rule would produce an inappropriate result.

 

Division 1.2 - General powers of the Court etc.

 

Rules 1.05, 1.06 and 1.07 outline the general powers of the Court.  They include power to dispense with compliance with a rule and to make an order inconsistent with a rule.  The Court can exercise power under the rules at any stage in criminal proceedings either of its own initiative or on the application of a party.

 

Division 1.3 - Interpretation

 

Rule 1.08 provides that a word or expression which is defined in the Dictionary has the meaning given in the Dictionary.

 

Rule 1.09 provides that the Chief Justice may approve forms for the purpose of the Interim Rules.  Approved forms are available on the Court's website at http://www.fedcourt.gov.au.  Forms approved under the Interim Rules are given the prefix CP before the number of the form.

 

Division 1.4 - Documents

 

Rules 1.10 and 1.11 provide that a document filed in criminal proceedings must be in accordance with any approved form, but that substantial compliance will suffice. 

 

Rule 1.12 sets rules for the title of documents in primary indictable proceedings and criminal appeal proceedings.

 

Part 2 - Indictable primary proceedings

 

Indictable primary proceedings will normally start when the CDPP, or another prosecutor, files an indictment in the Federal Court.  However section 23AB of the Federal Court of Australia Act 1976 identifies four other ways in which indictable primary proceedings can be commenced:

 

*           a prosecutor applies for an extension of time to file an indictment;

*           an accused applies to be discharged on the basis that an indictment has not been filed in time;

*           the accused or the prosecutor, or both, appear before the Federal Court as the result of an order made by a committing court;  and

*           the accused or the prosecutor, or both, appear before the Federal Court in response to a bail order made by a State or Territory court.

 

If an accused is committed for sentencing, section 23GB of the Federal Court of Australia Act 1976 will apply.  The accused will be treated as if he or she has been committed for trial and pleaded guilty before the Federal Court at the first opportunity.  That means the prosecutor must file an indictment in the same way as if the accused had been committed for trial.

 

Part 2.1 - Indictments and applications

 

Rule 2.01 deals with the form and contents of an indictment.  It also requires that an indictment be accompanied by an indictment information notice, which will provide information about the case to the Federal Court.

 

An indictment must state the offence that the accused, or each accused, is alleged to have committed and must:

 

*         identify the provision creating the offence;

*         describe the offence in the words of the provision creating the offence or in similar words; and

*         describe, concisely, and with reasonable particularity, the nature of the alleged offence.

 

Rule 2.01 requires that an indictment must be filed electronically.  The prosecution must retain the original signed indictment so that it can be presented to the Court at arraignment under Rule 2.08.

 

Rule 2.02 sets rules for service of an indictment.  The prosecutor must personally serve the accused with a stamped copy of the indictment and the indictment information notice as soon as practicable.  If the Court has extended the time to file an indictment, the prosecutor must also serve a copy of the order extending time.

 

Rules about service appear in Part 10 of the Federal Court Rules 2011.

 

Rule 2.03 deals with the form of an application for an extension of time to file an indictment.  The application must be in the prescribed form, and must be accompanied by an affidavit saying why an indictment cannot be filed in time.  A copy of the committal order must be attached to the affidavit.

 

Subrule (4) provides that an application for an extension of time can be made without notice to any person.

 

Rule 2.04 requires that an accused who has been served with an indictment must file a notice of address for service as soon as practicable after service.  The filing of a notice of address for service, however, does not amount to a submission to the jurisdiction of the Court.

 

Rules about address for service appear in Part 11 of the Federal Court Rules 2011.

 

Rule 2.05 deals with the form of an application for an order discharging the accused on the basis that an indictment has not been filed in time.  The application must be in the prescribed form, and must be accompanied by an affidavit supporting the application.  A copy of the committal order must be attached to the affidavit.

 

Subrule (4) provides that the application must be served on the prosecutor, but can be served at the address for service given for the committal proceedings.

 

Rule 2.06 sets out the procedure which applies if the prosecutor wants to amend or replace an indictment that has been filed in the Federal Court.

 

Under section 23BH of the Federal Court of Australia Act 1976 a prosecutor must get leave to amend or replace an indictment if the trial has started or is listed to start in the next 90 days.

 

If a prosecutor wants to amend an indictment before the start of a trial, the prosecutor must make the amendment on the original indictment, write the date of the amendment on the indictment, file the amended indictment by lodging it electronically, and serve a stamped copy of the amended indictment on the accused as soon as practicable after it is filed.

 

If a prosecutor wants to replace an indictment before the start of a trial, the prosecutor must file a new indictment in accordance with Rule 2.01.  Subrule(4) provides that the new indictment must not show on its face that is an replacement for an earlier indictment.  That is to avoid any risk that a jury may speculate about why the original indictment has been replaced.  The new indictment must be accompanied by a document which identifies it as a replacement indictment.

 

If a prosecutor amends or replaces an indictment after the start of the trial, the Court can give directions about filing and service of the amended or replaced indictment.  In some cases it may be appropriate for the Court to require the prosecutor to file and serve the amended or replaced indictment, but in other cases there may be no need for formality once a trial has started.

 

Subrule (6) provides that the Court may direct a prosecutor to file a new indictment instead of amending an indictment.  That may be done if, for example, the proposed amendments would make the indictment difficult to read.

 

Division 2.2 - juries

 

Rule 2.07 deals with the form of a jury summons and requires that a summons be served on a person at least 21 days before the person is required to attend the Court.

 

Rules about service appear in Part 10 of the Federal Court Rules 2011.

 

Rule 2.08 deals with the procedure for arraigning an accused.  The process must occur after a jury has been empanelled.

 

Unless the Court otherwise directs, the procedure will be as follows:

 

*         the prosecutor must present the signed indictment to the Court;

*         a copy of the indictment must be given to the jury;

*         each count in the indictment must be read to the accused in the presence of the jury;  and

*         the accused must be directed to enter a plea to each count that relates to the accused.

 

Subrule (2) provides that the descriptive material that appears in the indictment need not be read to the jury unless the Court directs.  This is designed to keep the arraignment process to a reasonable length.

 

Subrule (3) provides that, if the indictment replaces an earlier indictment, that fact must not be disclosed to the jury.

 

Subrule (4) provides that the accused must be placed in the charge of the jury for trial if, when directed by the Court, the accused:

 

*         pleads not guilty to the count;

*         fails to enter a plea to the count; or

*         is given leave to change a plea of guilty to a plea of not guilty on the count.

 

This means the accused must be given a final opportunity to confirm his or her plea before the cases proceeds to trial.

 

Rule 2.09 deals with the forms of oath and affirmation for potential jurors, jury officers and assistant jury officers.

 

A person who has been empanelled for a jury will be a potential juror up until the point where they have taken an oath or made an affirmation (see section 23DU(6) of the Federal Court of Australia Act 1976).

 

Part 3 - Criminal appeal proceedings

 

Section 30AA of the Federal Court of Australia Act 1976  is the primary provision giving the Court jurisdiction to hear criminal appeals.

 

Section 30AD is also relevant.  It gives the Court jurisdiction to hear an appeal, or a further appeal, if the Attorney-General gives consent.  If the Attorney-General does gives consent the appeal should proceed, as far as possible, in the same way as any other criminal appeal.

 

Rules about appeals appear in Parts 35 and 36 of the Federal Court Rules 2011.

 

Rule 3.01 provides that a party may apply to the Court, constituted by a single Judge, for directions in relation to the management, conduct and hearing of a criminal appeal.  The Court can also make directions of its own motion (see Rule 1.07).

 

Part 4 - Bail

 

Provisions about bail appear in Part VIB of the Federal Court of Australia Act 1976.

 

Rule 4.01 deals with the form and contents of a bail application.  An application for bail can be made in writing or orally if given leave.

 

A written application for bail must be accompanied by an affidavit which complies with any practice note dealing with applications for bail.

 

Subrule (5) provides that a written application for bail must be served on the prosecutor at least 2 days before the hearing of the application.  Rules about service appear in Part 10 of the Federal Court Rules 2011.

 

Rule 4.02 deals with the form of an application for bail to be varied or revoked on the basis that the accused has failed to comply with the conditions of bail.

 

Rule 4.03 sets out what happens if money or other property is deposited with the Court as security for bail.  Money must be paid into the Litigants Fund unless the Court makes an order to the contrary.  Property which is not money must be dealt with in accordance with a direction of the Court or a Registrar.

 

Rule 4.04 deals with the form of a bail undertaking.  The rule includes provisions designed to ensure that the person who signs a bail undertaking understands the effect of the undertaking.

 

Rule 4.05 deals with the form of a third party security undertaking.  The rule includes provisions designed to ensure that the person who signs a security undertaking understands the effect of the undertaking.

 

Rules 4.06 to 4.08 deals with the process that will apply if a prosecutor wants to seek forfeiture of bail security.

 

The procedure is set out in section 58FB of the Federal Court of Australia Act 1976.  The first step is for the prosecutor to apply to the Court for an order directing a Registrar to issue a notice of proposed forfeiture.  If the Court makes that order, a Registrar must issue a notice of proposed forfeiture to any person who may have an interest in property that has been provided as security for bail.  A person who receives, or becomes aware of, a notice of proposed forfeiture can file a notice objecting to forfeiture.

 

Rule 4.06 deals with the form of an application for a direction to a Registrar.

 

Rule 4.07 deals with the form of a notice of proposed forfeiture.

 

Rules 4.08 deals with the form and contents of a notice objecting to proposed forfeiture and sets out how the Court will go about dealing with an objection to forfeiture.

 

 

Part 5 - Other matters

 

Rule 5.01 deals with interlocutory applications.

 

If no other procedure is prescribed, a party can apply for an interlocutory order orally at a hearing of the Court or by writing in the approved form.

 

A written application must be accompanied by an affidavit and must be served at least 3 days before the date set for the hearing of the application.

 

Subrule (1) provides that an interlocutory application may be heard and determined in the absence of a party if the application has been served on the party and the party does not appears.

 

Rule 5.02 deals with summonses, other than jury summonses.  Where no other form of summons is prescribed, a summons can be issued under this Rule.

 

A summons under Rule 5.02 may be in the prescribed form, it must be served personally and it must give the person 5 days notice of the need to attend court.  Rules about service appear in Part 10 of the Federal Court Rules 2011.

 

Rule 5.03 applies if a person who is required before the Court is in custody.  The Court can make an order directing that the person be brought before the Court.  The order may be in the prescribed form.

 

Rule 5.04 deals with warrants for arrest.  A warrant for arrest may be in the prescribed form.

 

Rule 5.05 deals with warrants for imprisonment.  A warrant for imprisonment may be in the prescribed form.

 

Schedule 1 - Dictionary

 

The Dictionary defines a number of words and phrases that appear in the Interim Rules.  Other definitions appear in section 4 of the Federal Court of Australia Act 1976 and in the Dictionary to the Federal Court Rules 2011.

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