Commonwealth Numbered Regulations - Explanatory Statements
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FEDERAL MAGISTRATES AMENDMENT REGULATIONS 2011 (NO. 1) (SLI NO 38 OF 2011)
EXPLANATORY STATEMENT
Select Legislative Instrument 2011 No. 38
Federal Magistrates Act 1999
Federal Magistrates Amendment Regulations 2011 (No. 1)
The Federal Magistrates Act 1999 (the Act) establishes the Federal Magistrates Court (the Court) as a federal court under Chapter III of the Constitution.
Subsection 120(1) of the Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act. In particular, subsection 120(3) of the Act provides for the prescribing of fees to be paid in respect of proceedings in the Federal Magistrates Court.
The Federal Magistrates Regulations 2000 (the Principal Regulations) prescribe certain fees for court proceedings and make provisions about the payment of those fees.
The purpose of the Regulations is to amend the Principal Regulations to put beyond doubt that persons eligible to pay a reduced fee may seek deferral of the payment of the fee. The Regulations remove doubt by specifying that a reduced fee may be deferred.
Under regulation 10 of the Principal Regulations, a registrar or authorised officer may defer payment of all or part of a fee. Subregulation 10(3) provides that deferral may be allowed in a range of circumstances, including:
* urgency;
* where the person is represented by a lawyer who is acting pro bono; and
* where it would, having regard to the financial circumstances of the person liable to pay the fee, be oppressive or otherwise unreasonable to require payment in accordance with the usual timeframes.
Subregulation 10(4) of the Principal Regulations provides a default deferral period of 30 days, but provides discretion for the Registrar or authorised officer to prescribe another period. There is no maximum or minimum prescribed for the length of a deferral period - this will depend on the Registrar or authorised officer's judgment in the individual case.
Regulation 11 of the Principal Regulations provides for consequences of non-payment of a fee which applies if a fee is not paid at the conclusion of a deferral period. It provides a general rule that a document must not be filed and a service not provided if a fee is unpaid. However, if a fee is not paid because the proceedings finished before the deferred fee became payable, subregulation 11(3) of the Principal Regulations operates to provide that the unpaid fee is recoverable as a debt due to the Commonwealth.
The Regulations are necessary to ensure that, in the circumstances in which deferral is generally available, it is also available to persons eligible to pay a reduced fee under regulations 8D and 9 of the Principal Regulations. Eligibility to pay a reduced fee is conditional on a person being in receipt of legal aid, a holder of certain concession cards or in receipt of certain benefits, in prison or detention, under 18 years of age or in circumstances of financial hardship.
Under the Regulations, a person eligible to pay a reduced fee could then apply for a deferral of the fee, for example, if payment of the fee in accordance with the usual timeframes would be oppressive or unreasonable in the financial circumstances of the person. This is a stricter test than the test in regulation 9 of the Principal Regulations which allows for a fee reduction where payment of the full fee would cause financial hardship to the person.
The Regulations ensure that the Registrar or authorised officer has discretion to defer the payment of the fee to avoid an oppressive or unreasonable result. For example, a person might be in prison or detention, with no income or eligibility for payment of benefits, and no assets. The Registrar might determine that the 30 day standard deferral period is appropriate in the circumstances, or may allow deferral for a longer period such as several months.
The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulations will commence on the day after registration on the Federal Register of Legislative Instruments.
The Federal Magistrates Court of Australia has been consulted about these Regulations. This level of consultation is appropriate because the amendments are minor and technical in nature.
Authority: Subsection 120(1) of the Federal Magistrates Act 1999
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