Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT RULES (AMENDMENT) 1997 NO. 425

Statutory Rules 1997 No. 425

Issued by the authority of the Judges of the Federal Court of Australia

AMENDMENT OF THE RULES OF THE FEDERAL COURT OF AUSTRALIA

Section 59 of the Federal Court of Australia Act 1976 permits the Judges of the Court (of whom there are forty-eight (48) including the Chief Justice) or a majority of them, to make Rules of Court not inconsistent with the Act providing for the practice and procedure to be followed in the Court and in Registries of the Court, and in relation to all matters incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Court. Under sub-section 59(4) of the Federal Court Act 1976, sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 which relate to the making of regulations, apply to these Rules of Court as if references to the regulations in those sections, were references to Rules of Court.

The present Federal Court Rules came into operation on 1 August 1979. They arc reviewed regularly.

RULE 1

This rule provides that the Federal Court Rules are amended as set out in these Rules.

RULE 2

This rule inserts after Order 179 a new Order providing rules to accompany the Court's jurisdiction as the Court of Disputed Returns under the Constitutional Convention (Election) Act 1997. The new Order is to be Order 80.

The provisions of the new Order are as follows.

Rule 1

This rule provides that the new rules may be cited as the Constitutional Convention (Election) Rules.

Rule 2

This rule provides that the term "Constitutional Convention Act" means the Constitutional Convention (Election) Act 1997.

Rule 3

This rule provides that, unless the contrary intention appears, terms used in Order 80 have the same meaning as they have in the Constitutional Convention Act.

Rule 4

Sub-rule (1) of this rule provides that Order 90 applies to petitions to the Court under section 148 of the Constitutional Convention Act disputing the validity of an election or return.

Sub-rule (2) provides that the other Orders of the Federal Court Rules apply to petitions to the Court under this Order, so far as they we relevant and not inconsistent with Order 80.

Rule 5

This rule requires that a petition to the court under this Order must be in the form of the new Form 161 which is made as pan of these rules.

Rule 6

This rule requires that the petitioner must name as a respondent to the petition each person the validity of whose election or return is disputed.

Rule 7

Sub-rule (1) of this rule requires the petitioner to publish a notice in the form of' the new Form 162 in the Commonwealth Government Gazette and a daily newspaper circulating in the State or Territory for which the election or return is disputed. The notice is required to be published as soon as practicable after the filing of the petition.

Rule 8

This rule requires the petitioner to give a copy of the petition to the Electoral Commission at least five days prior to the date fixed for the directions hearing for the petition. Section 154 of the Constitutional Convention Act entitles the Electoral Commission to appear in the proceedings with the leave of the Court.

Rule 9

This rule requires that an application by the Electoral Commission to be given leave to enter an appearance in the proceeding be by way of notice of motion under Order 19 of the Federal Court Rules.

If the Court grants leave for the Electoral Commission to appear in the proceeding, the Commission is required to file an appearance in accordance with Order 9 rule 3 and to serve a copy of the notice on the petitioner and each respondent to the petition.

Rule 10

This rule applies to a petition:

(a)        claiming that a ballot-paper, or class of ballot papers, was improperly admitted or rejected in an election; and

(b)       seeking a declaration that

(i)       a person who was returned as elected was not duly elected; or

(ii)       a candidate be duly elected who was not returned as elected.

The rule requires in relation to such a petition that each party is to file and serve on each other party at least 28 days prior to the bearing, or such shorter period as the Court allows, particulars of the ballot papers alleged to have been improperly admitted or rejected and a statement setting out the facts in support of the claim.

Sub-rule (3) prevents a party relying on a fact in support of the claim if the ground is not set out in the statement referred to in the above paragraph. The Court may grant leave to a party to rely on a ground if this sub-rule is not complied with. The Court or a Judge granting leave under sub-rule (3) may order dud the list referred to above be amended, order that the hearing he adjourned, make an order as to costs and any other order considered appropriate.

Rule 11

This rule applies to a respondent to a petition who wishes to oppose the petition. A respondent is required by rule 11 to file and serve on the petitioner a statement setting out the facts on which the respondent opposes the petition. This is required to be filed and served at least 14 days before the hearing of the petition or within such shorter period as the Court or a judge allows.

RULE 3

This rule amends the First Schedule to the Federal Court Rules by adding two new Forms.

The first form is Form 161 which is the form of petition under the Constitutional Convention (Election) Act 1997 required by Order 80 rule 5.

The second form is Form 162 and is the notice required to be published in the Government Gazette and a daily newspaper by Order 80 rule 7.