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FEDERAL MAGISTRATES AMENDMENT REGULATIONS 2009 (NO. 1) (SLI NO 129 OF 2009)
EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 129
Issued by the Authority of the Attorney-General
Federal Magistrates Act 1999
Federal Magistrates Amendment Regulations 2009 (No. 1)
Federal Court of Australia Act 1976
Federal Court of Australia Amendment Regulations 2009 (No. 1)
The Federal Magistrates Act 1999 (the Federal Magistrates Act) and the Federal Court of Australia Act 1976 (the Federal Court Act) establish the Federal Magistrates Court (the FMC) and the Federal Court of Australia (the Federal Court) respectively as federal courts under Chapter III of the Constitution.
Subsection 120(1) of the Federal Magistrates Act and subsection 60(1) of the Federal Court Act provide that the Governor‑General may make regulations prescribing matters required or permitted by those Acts to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to those Acts. In particular, subsection 120(3) of the Federal Magistrates Act and subsection 60(1) of the Federal Court Act provide for the prescribing of fees to be paid in respect of proceedings in the FMC and Federal Court respectively.
A reduced court fee structure previously applied to unlawful termination court applications under the Workplace Relations Act 1996 (the WR Act) and was prescribed under the Federal Court of Australia Regulations 2004 and the Federal Magistrates Regulations 2000. The current fee for an application and claim for unlawful termination is $57.30. This fee is adjusted annually in accordance with an indexation factor based on the CPI.
The purpose of the Regulations is to specify which court applications to the FMC and the Federal Court under the new Fair Work Act 2009 (the FW Act) framework will attract a reduced court application fee, which from 1 July 2009 will be $59.50. This fee has been prescribed by the Fair Work Regulations 2009.
Under the new FW Act framework, the WR Act protections relating to unlawful termination and freedom of association for national system employers and employees, have been consolidated and streamlined into the General protections in Part 3-1 of the FW Act. In addition, special provision is now made for unlawful termination protection for non-national system employees in section 772 of the FW Act.
To take account of the new FW Act framework, the Regulations will provide for the following court applications to be subject to a reduced fee:
Details of the Regulations are set out in the Attachment.
The Acts specify no conditions that need to be satisfied before the power to make the Regulations may be exercised.
The Regulations are legislative instruments for the purposes of the Legislative Instruments Act 2003.
The Regulations commence on 1 July 2009, to coincide with the commencement of Part 3‑1 and Division 2 of Part 6‑4 of the FW Act.
Consultations regarding these legislative instruments were held with the Federal Court. This level of consultation is appropriate and sufficient, as these amendments are of a minor or machinery nature only and do not substantially alter existing arrangements.
Authority: Subsection 60(1) of the
Federal Court of Australia Act 1976
Subsection 120(1) of the
Federal Magistrates Act 1999
ATTACHMENT
Details of the Federal Court of Australia Amendment Regulations 2009 (No. 1)
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Federal Court of Australia Amendment Regulations 2009 (No. 1)
Regulation 2 – Commencement
This regulation provides for the Regulations to commence on 1 July 2009.
Regulation 3 – Amendment of Federal Court of Australia Regulations 2004
Schedule 1 – Amendment
Item [1] – Schedule 1, item 3
Item 3 in Schedule 1 to the Federal Court Regulations will be substituted with a new item 3. The new item sets out which applications to the Federal Court will be subject to the reduced application fee prescribed for subsection 395(2) of the FW Act. All applications to the Federal Court under section 539 of the FW Act, where an applicant has been dismissed from employment in an alleged contravention of Part 3-1 of the Act, or the applicant alleges a breach of section 351 of the Act, will be subject to the reduced fee prescribed.
A new item 3A will also be inserted after item 3 in Schedule 1. This new item specifies that applications to the Federal Court under section 539 of the FW Act, where a person has been dismissed from employment in alleged contravention of section 772 of the FW Act, will also be subject to the reduced application fee prescribed for subsection 395(2) of the FW Act.
Details of the Federal Magistrates Amendment Regulations 2009 (No. 1)
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Federal Magistrates Amendment Regulations 2009 (No. 1).
Regulation 2 – Commencement
This regulation provides for the Regulations to commence on 1 July 2009.
Regulation 3 – Amendment of Federal Magistrates Regulations 2000
This regulation provides that the Federal Magistrates Regulations 2000 (the Federal Magistrates Regulations) are amended as set out in Schedule 1.
Schedule 1 – Amendment
Item [1] – Schedule 1, item 12
Item 12 in Schedule 1 to the Federal Magistrates Regulations will be substituted with a new item 12. The new item sets out which applications to the FMC will be subject to the reduced application fee prescribed for subsection 395(2) of the FW Act. All applications to the FMC under section 539 of the FW Act, where an applicant has been dismissed from employment in an alleged contravention of Part 3‑1 of the Act, or the applicant alleges a breach of section 351 of the FW Act, will be subject to the reduced fee prescribed.
A new item 13 will also be inserted after item 12 in Schedule 1. This new item specifies that applications to the FMC under section 539 of the Act, where a person has been dismissed from employment in alleged contravention of section 772 of the FW Act, will also be subject to the reduced application fee prescribed for subsection 395(2) of the FW Act.