Commonwealth Numbered Regulations - Explanatory Statements
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FEDERAL MAGISTRATES COURT AMENDMENT RULES 2012 (NO. 1) (SLI NO 94 OF 2012)
Federal Magistrates Court Amendment Rules 2012 (No. 1)
EXPLANATORY STATEMENT
Select Legislative Instrument 2012 No. 94
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Issued by the authority of the Federal Magistrates of the Federal Magistrates Court of Australia
Section 81 of the Federal Magistrates Act 1999 permits the Federal Magistrates or a majority of them, to make rules of Court not inconsistent with the Act. These rules may provide for the practice and procedure to be followed in the Court and may extend to all matters incidental to any such practice or procedure that are necessary or convenient to be prescribed for the conduct of any business of the Court.
Under sub-section 81(3) of the Federal Magistrates Act 1999 the Legislative Instruments Act 2003 (other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in relation to rules of court made by the Court under the Federal Magistrates Act 1999 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 Federal Magistrate acting on behalf of the Federal Magistrates of the Court; and
(c) subject to such further modifications or adaptations as are provided for in regulations made under section 120 Federal Magistrates Act 1999.
Section 9 of the Legislative Instruments Act 2003 provides that Rules of Court made for the Federal Magistrates 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 purposes of that latter Act is included in this Explanatory Statement.
The Federal Magistrates have agreed to adopt the Federal Magistrates Court Amendment Rules 2012 (No. 1) ('the Amendment Rules').
The Amendment Rules include the following amendments to the Federal Magistrates Court Rules 2001 ('the Rules'):
* consequential amendments as a result of the implementation of the Federal Court Rules 2011
* consequential amendments to facilitate the 'family violence' amendments to the Family Law Act 1975 as implemented by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011
* amendments to the address for service rules to facilitate the authorisation of ordinary service by email
* amendments to Schedule 1 - costs - to increase the amounts fixed consistent with recommendations of the Joint Costs Advisory Committee and to introduce a new Part 2 of Schedule 1 being costs certain child support proceedings.
The Amendment Rules have been the subject of consultation (as relevant), with the Federal Court of Australia, the Family Court of Australia, and the Family Law Section of the Law Council of Australia.
Details of the Amendment Rules are in the Attachment.
The Amendment Rules commence on the day after they are registered except for the amendments contained in Schedule 2 which commence on the 7 June 2012 (being the date of commencement of the' violence provisions' of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011).
ATTACHMENT
Federal Magistrates Court Amendment Rules 2012 (No. 1)
1 Name of Rules
Rule 1 provides that the Rules are to be cited as the Federal Magistrates Court Amendment Rules 2012 (No. 1).
2 Commencement
Rule 2 provides commencement of the Rules as follows:
(a) on the day after they are registered -- rules 1 to 3 and Schedule 1;
(b) on 7 June 2012 --Schedule 2.
3 Amendment of Federal Magistrates Court Rules 2001
Rule 3 provides that the amendments set out in Schedules 1 and 2 amend the Federal Magistrates Court Rules 2001.
Schedule 1 Amendment commencing on day after registration
[1] Subrule 2.08(4)
This is a renumbering amendment as a consequence of the enactment of the Federal Court Rules 2011.
[2] After subrule 6.01(3)
The address for service rule is amended by the insertion of new subrules (4),(5), and (6) to facilitate the provision of an email address as the address for service of documents other than by hand.
[3] Subparagraph 6.11(1)(d)(ii)
This is a minor drafting amendment.
[4] After paragraph 6.11(1)(d)
This amendment is as a consequence of the amendment set out in item 2 to facilitate the provision of an email address as the address for service. In addition, the approved form has been amended to enable the inclusion of an email address for service.
[5] Rule 6.12
The rule in respect of when service is effected now includes new paragraphs (c) and (d) to identify when a document sent by fax or electronic communication is taken to have been served.
[6] Part 12
The amendments to Part 12 are as a consequence of comparable amendments in the Federal Court Rules 2011. These amendments reflect the comparable Federal Court Rules except for Rule 12.05 which provides that if a Pro Bono lawyer no longer wishes to provide legal assistance, compliance with rule 9.03 is all that is required.
[7] Rule 15.05
The rule has been omitted from the body of the Rules as the relevant Evidence Act provision is applied by way of Schedule 3 Part 2 incorporation with the inclusion of Rule 30.29 of the Federal Court Rules.
[8] Subrule 20.00A(1), table, item 32
These amendments to the delegation of powers to registrars are as a consequence of renumbering of the enforcement rules.
[9] Subrule 20.00A(1), table, after item 55
The table of delegation of powers to registrars has been amended to include a new item 56 power under section 113 of the Child Support (Registration and Collection) Act 1988.
[10] Paragraph 21.02(2)(c)
This is a renumbering amendment as a consequence of the enactment of the Federal Court Rules 2011.
[11] Paragraph 21.10(a)
[12] Rule 21.16
These are drafting amendments as a consequence of new Part 2 of Schedule 1
[13] Subrule 25A.07(2)
The rule in relation to service of an application or notice of appeal (child support) has been recast to better reflect the relevant statutory power to stay.
[14] Paragraph 25B.08(b)
The rule has been recast to better reflect the relevant statutory powers.
[15] After paragraph 25B.13(b)
The amendment makes an amendment to the Rule relating to the general enforcement powers, to make a specific reference to the ability of the Court to make order for payment under rule 25B.09.
[16] Subrule 25B.14(2)
The amendment corrects a drafting error.
[17] Part 29
The amendments to Part 29 - Enforcement - are as a consequence of amendments to the enforcement rules implemented by way of the Federal Court Rules 2011.
[18] Parts 42 and 43
The amendments to Parts 42 and 43 - Judicial Review - are as a consequence of amendments to comparable rules implemented by way of the Federal Court Rules 2011.
[19] Subrules 44.15(1) and (2)
This is a drafting amendment to reflect the inclusion of a new Part in Schedule 1.
[20] Schedule 1
Schedule 1 has been amended to include a new Part 2 being costs for certain child support proceedings. New Part 2 includes a new Division one being fixed event costs for Applications for an enforcement order in relation to child support proceedings and new Division two being fixed event costs for an Appeal of SSAT or Child Support Registrar.
In addition the amounts set out in Schedule 1 have been increased consistent with recommendations of the Joint Costs Advisory Committee.
[21] Schedule 3, Part 2
Consequential amendments have been made to the Schedule of provisions of the Federal Court Rules which apply pursuant to paragraph 1.05(3)(b) in view of amendments enacted by way of the Federal Court Rules 2011.
[22] Dictionary
A new definition has been included in the dictionary for AAT Act to accord with the definition in the Federal Court Rules 2011
[23] Dictionary, definition of Administrative Appeals Tribunal Act
This current definition has been omitted in view of the new definition set out in item [22]
[24] Dictionary, definition of Administrative Decisions (Judicial Review) Act
The current definition of Administrative Decisions (Judicial Review) Act has been omitted in view of the new definition set out in item [25].
[25] Dictionary
A new definition has been included in the dictionary for AD(JR)Act to accord with the definition in the Federal Court Rules 2011.
[26] Dictionary, definition of Family Law Rules
This amendment makes provision for the Court to apply, adopt or incorporate the rules in Family Law Rules in force from time to time as facilitated by the Federal Magistrates Amendment Regulation 2012 (No1).
[27] Dictionary, definition of Federal Court Rules
This amendment makes provision for the Court to apply, adopt or incorporate the rules in Federal Court Rules in force from time to time as facilitated by the Federal Magistrates Amendment Regulation 2012 (No1).
Schedule 2 Amendments commencing on 7 June 2012
[1] Subrule 13.04A(3)
This amendment facilitates the requirement of the Court to ask each part to parenting proceedings whether the child concerned has been or is at risk of being subjected to or exposed to neglect or family violence or is at risk of being subjected to family violence as required by s69ZQ(1). The amendment imposes an obligation on each party to advise the Court of such matter, apart from any allegation made in the proceedings, and to explain to the Court how the proposed consent parenting order attempts to deal with the allegation if an application is made to the Court. Corresponding amendments have been made to the approved form.
[2] Subrule 20.00A(1), table, item 14
The reference in the table of Family Law Act delegated powers to registrars has been amended to delete reference in item 14 to section 60K which has been repealed as one of the amendments contained in the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011.
[3] Subrule 20.00A(1), table, after item 17
A new item 17 has been included in the table of Family Law Act delegated power to registrars in view of the repeal of section 60K and new subsection 67ZBB(2) upon commencement of the relevant provisions of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011.
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