Bills Digest No. 55 1999-2000 Federal Magistrates (Consequential Amendments) Bill 1999


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details

Passage History

Federal Magistrates (Consequential Amendments) Bill 1999

Date Introduced: 24 June 1999

House: House of Representatives

Portfolio: Attorney-General

Commencement: Upon commencement of the Federal Magistrates Act (except for provisions that amend pending legislation: such provisions commence when the legislation that they amend commences).

Purpose

The Federal Magistrates (Consequential Amendments) Bill 1999 confers jurisdiction on the Federal Magistrates Court (also known as the Federal Magistrates Service) established by the Federal Magistrates Bill 1999. The Bill also makes some minor consequential amendments related to the creation of the Federal Magistrates Court.

Background

The policy background to, and constitutional issues involved in, the establishment of the Federal Magistrates Court will not be discussed in this Digest. For information concerning these matters the reader is referred to Bills Digest No. 59 of 1999-2000. Nor will this Digest discuss the structure, composition, procedures or powers of the Court: the reader should again consult Bills Digest No. 59 of 1999-2000 for a discussion of these matters.

This Bill is concerned with jurisdiction of the Court, that is, the matters that will be dealt with by the Federal Magistrates Court. The Court will have six principal areas of jurisdiction:

  • administrative law
  • bankruptcy
  • employment law
  • human rights law
  • family law; and
  • trade practices law

Main Provisions

The provisions of the Bill will be analysed in terms of the jurisdiction they confer on the Federal Magistrates Court in each of the six areas listed above. The consequential amendments will also be briefly considered.

Administrative Law

Administrative Appeals Tribunal Act

Schedule 3 of the Bill amends the Administrative Appeals Tribunal Act 1975 (Administrative Appeals Tribunal Act).

Appeals from the Administrative Appeals Tribunal

Section 44 of the Administrative Appeals Tribunal Act in its present form gives a right of appeal on questions of law from decisions of the Administrative Appeals Tribunal (AAT) to the Federal Court. Item 7 inserts new section 44AA into the Administrative Appeals Tribunal Act in order to provide a mechanism for matters on appeal to the Federal Court under section 44 to be transferred to the Federal Magistrates Court.

The decision whether or not to transfer a matter on appeal from the AAT to the Federal Court onto the Federal Magistrates Court is to be made by the Federal Court, acting either on the application of a party to the proceedings, or on its own initiative: new section 44AA(3). New subsections 44AA(4)-(6) allow the Federal Court, following consultation with the Federal Magistrates Court, to make Rules of Court to specify factors which should be taken into account when deciding whether or not an appeal should be transferred to the Federal Magistrates Court.

In deciding whether or not to transfer an appeal, the Federal Court must, in addition to any Rules of Court, have regard to the following factors: any associated matters presently before the Magistrates Court, the workload of the Magistrates Court and the interests of the administration of justice: new section 44AA(7). The decision to transfer an appeal to the Federal Magistrates Court cannot be appealed against: new section 44AA(10).

There are certain appeals that cannot be transferred to the Federal Magistrates Court, namely:

  • appeals from decisions of the AAT constituted by the Presidential Member (whether or not in addition to other members): new section 44AA(2)(a); and
  • appeals from decisions made under portfolio legislation(1) of the Minister for Immigration and Multicultural Affairs: new section 44AA(2)(b); and
  • appeals of kind that are prescribed in regulations: new section 44(2)(c).

Presidential members are judges of courts created by parliament.(2) Thus a Federal Court magistrate could be appointed as a presidential member of the AAT. The effect of new section 44AA(2)(a) is therefore to prevent a Federal Court magistrate hearing an appeal from another magistrate judge of the Federal Court. Logically, this is necessary to ensure the integrity of the hierarchy of judicial officers and Courts created by Parliament.

Consequential Amendments to Other Acts as result of the Federal Magistrates Courts having jurisdiction to hear appeals from the AAT

The Archives Act 1983 and the Freedom of Information Act 1982 each contain a provision to prevent the disclosure by members of the Federal Court of documents protected under the respective Act, when the documents are provided to the court under section 46 of the Administrative Appeals Tribunal Act. Schedules 5 and 15 amend the two Acts respectively so that the provision also applies in the case of production of documents to the Federal Magistrates Court.

Administrative Decisions Judicial Review Act

Schedule 4 of the Bill amends the Administrative Decisions (Judicial Review) Act 1977 (the Administrative Decisions (Judicial Review) Act).

Review of Administrative Decisions, Conduct Relating to Decisions and Failures to Make Decisions

Sections 4, 5 and 6 of the Administrative Decisions (Judicial Review) Act enable an 'aggrieved person' to make an application to the Federal Court for review on specified grounds of, respectively, a decision; or conduct which has been engaged in (or is proposed to be engaged in) for the purposes of making a decision; or a failure to make a decision, when the decision is made under an enactment to which the Administrative Decisions (Judicial Review) Act applies.(3)

Items 6 - 12 amend sections 4, 5 and 6 to enable an aggrieved person to make an application for review to the Federal Magistrates Court as well as the Federal Court. The same grounds of review apply, although the Federal Magistrates Court does not have jurisdiction to hear applications for review of decisions (and conduct and failures to make decisions) arising from the Minister for Immigration and Multicultural Affairs' portfolio legislation.(4)

Item 13 amends section 8 to confer jurisdiction to hear applications under sections 5, 6 and 7 on the Federal Magistrates Court in addition to the Federal Court.

Powers of the Federal Magistrates Court under the Administrative Decisions (Judicial Review) Act

The powers of the Federal Magistrates Court under the Administrative Decisions (Judicial Review) Act are identical to those of the Federal Court. The main way that the Bill achieves this objective is by repealing the definition of 'Court' in section 3 of the Administrative Decisions (Judicial Review) Act. The amendments in Schedule 3 make it clear that the provisions of the Administrative Decisions (Judicial Review Act) are to apply equally to the Federal Court and the Federal Magistrates Court, with one exception, which is explained below.

Section 13 of the Administrative Decisions (Judicial Review) Act enables a person who is entitled to make an application under sections 5, 6 or 7 to obtain upon request, under the auspices of the Federal Court, a statement of findings on material questions of fact from a person who made a decision to which the section applies. Item 52 inserts new subsection 13(10A) to make it clear that a statement of findings in relation to decisions arising from the Minister for Immigration and Multicultural Affairs' portfolio legislation cannot be obtained through the Federal Magistrates Court.

Consequential Amendments to Other Acts as a result of the Federal Magistrates Court having jurisdiction under the Administrative Decisions (Judicial Review) Act

Schedule 1 amends the ACIS Administration Act 1999 (the ACIS Administration Act).(5) The ACIS Administration Act contains provisions limiting the implementation of decisions of the Federal Court under the Administrative Decisions (Judicial Review) Act. Item 1 applies the same limitations with respect to the implementation of decisions under the Administrative Decisions (Judicial Review) Act to the Federal Magistrates Court.

Schedule 19 amends the National Crime Authority Act 1984 (the National Crime Authority Act). The National Crime Authority Act enables a person to apply to the Attorney General for legal and financial assistance when making an application for review under the Administrative Decisions (Judicial Review) Act of a decision under the National Crime Authority Act to the Federal Court. Item 1 extends that assistance to Administrative Decisions (Judicial Review) Act applications made to the Federal Magistrates Court.

Schedule 23 amends the Taxation Administration Act 1953 (the Taxation Administration Act). Section 17A of the Taxation Administration Act limits the powers of the Federal Court in applications under the Administrative Decisions (Judicial Review) Act from making orders preventing the recovery of tax or duty. Item 1 amends section 17A to extend that limitation to the Federal Magistrates Court.

Items 5-7 of Schedule 24 make a minor consequential amendment to the Trade Practices Act 1974 (Trade Practices Act), in respect of competition notices under Division 3 of Part XIB. They provide that generally the Federal Magistrates Court is not to have jurisdiction to stay the effect of a competition notice when a person makes an application to have it reviewed under the Administrative Decisions (Judicial Review) Act, except where proceedings have been commenced under Division 7 of Part XIB of the Trade Practices Act.

Bankruptcy

Bankruptcy Act

Schedule 7 amends the Bankruptcy Act 1966 (the Bankruptcy Act).

Same Jurisdiction as the Federal Court

The Bill amends the Bankruptcy Act to give the Federal Magistrates Court concurrent jurisdiction with the Federal Court, with one exception. The main way the Bill achieves this is by amending section 27 (item 4).

Section 30 of the Bankruptcy Act deals with the general powers of courts in bankruptcy, including in subsection 30(3), the power to conduct, should the Court think fit, a trial by jury on a question of fact. Since there is no definition of a 'Court' in the Bankruptcy Act, section 30 also applies to the Federal Magistrates Court. However, item 5 amends section 30(3) so that it only applies to the Federal Court and thus the Federal Magistrates Court will not have jurisdiction to hold a trial by jury.

Employment Law

Workplace Relations Act

Schedule 25 amends the Workplace Relations Act 1996 (the Workplace Relations Act).

Injunctions in Support of Stop Orders

Section 127 of the Workplace Relations Act enables the Australian Industrial Relations Commission to order that industrial action which is happening or is threatened, to stop or not occur. Subsection 127(6) enables a person who is affected by a stop order to apply to the Federal Court for an injunction to prevent a contravention or proposed contravention of the stop order. Items 1-4 amend section 127 of the Workplace Relations Act to also give the Federal Magistrates Court jurisdiction to hear applications for such injunctions.

Proposed section 127AAA of the Workplace Relations Act(6) requires the Federal Court to make remedial orders to ensure that a person complies with a stop order, when another person applies for an order requiring them to comply with the order and, the court finds that the person has contravened, or intends to contravene, the stop order. Proposed section 127AAB(7) requires the Court to make interim remedial orders when it is unable to determine the matter promptly. Items 5 and 6 extend the operation of proposed sections 127AAA and 127AAB to applications made in the Federal Magistrates Court.

Remedies for Infringing the Right of Freedom of Association

Part XA of the Workplace Relations Act deals with freedom of association in industrial relations, and prohibits certain by employers, employees and industrial associations that aims to restrict the right of freedom of association. Division 6 of Part XA deals with remedies for engaging in prohibited conduct. Items 8-11 amend Division 6 to allow the Federal Magistrates Court to hear applications concerning prohibited conduct, and to make orders against the person, company or organisation contravening the right of freedom of association.

Powers of the Federal Magistrates Court

Item 13 amends section 416 of the Workplace Relations Act to give the Federal Magistrates Court power to refer to the Full Federal Court either a whole matter, or a question of law for an opinion: new subsection 416(3).

Items 15-21 amend the sections 469-471 of the Workplace Relations Act, that deal with representation of, and intervention by, parties in the Federal Court, so that they apply in the Federal Magistrates Court as well.

Family Law

Family Law Act

Schedule 11 amends the Family Law Act 1975 (the Family Law Act). In summary, the amendments confer concurrent jurisdiction on the Federal Magistrates Court with respect to:

  • divorce
  • spousal maintenance
  • property disputes (except where - unless the parties agree that court have jurisdiction - the value of the property is more than $300,000), and
  • children's matters (except - unless the parties agree that court should have jurisdiction - residence disputes).

Schedule 11 also introduces new terminology into the Family Law Act to reflect the fact that the Family Law Act will apply to two federal courts. The amendments also make counselling and mediation services available through the Federal Magistrates Court. These latter two changes will be described before the jurisdiction of the Federal Magistrates Court under the Family Law Act is explored.

New terminology

Items 2, 4 and 5 introduce into the Family Law Act some new terminology in relation to Court Rules. The Family Court Rules are to be known as the 'standard Rules of Court' while Federal Magistrates Court Rules, insofar as they are relevant to the Family Law Act, are to be known as the 'related Federal Magistrates Rules'. The 'applicable Rules of Court' refers to each of the above in their respective contexts: in relation to the Family Court, they are the standard Rules of Court, while in relation to the Federal Magistrates Court, they are the related Federal Magistrates Rules.

Item 10 amends section 4 to make it clear that proceedings conducted in accordance with both the standard Rules of Court (ie. in the Family Court) and the related Federal Magistrates Rules (i.e. in the Federal Magistrates Court) are proceedings under the Family Law Act.

Counselling and Mediation

Part III of the Family Law Act deals with primary dispute resolution processes including counselling and mediation.

Division 2 imposes on Federal Court judges a duty to consider, from time to time, the possibility of achieving in certain types of matters, a reconciliation between the parties through counselling. The judge may adjourn the proceedings and advise the parties to make use of counselling services.(8) Item 12 amends Division 2 to impose the duty to consider counselling on Federal magistrates as well.

Item 13 establishes the Federal Magistrates Court as an avenue for accessing counselling services. New section 15A(1) provides that a person who is married, or who is a party to family law proceedings in the Federal Magistrates Court, may request a designated officer of the Federal Magistrates Court to arrange for them (and the other party concerned) to attend an interview with a family and child counsellor.

New section 62CA (inserted by item 47) provides that in addition, children, parents and separate representatives(9) may request a designated officer of the Federal Magistrates Court to arrange for the parents and other persons to be interviewed by a family and child counsellor in order to determine whether counselling would be appropriate, and if so, to counsel them.

Division 3 of Part III of the Family Law Act deals with mediation. Section 19A enables a parent, a child or a party to a marriage, who is not a party to proceedings in the Family Court, to request mediation services(10) through the Federal Court. Item 16 inserts new section 19AAA into Division 3 which will allow the same class of people to request mediation services through the Federal Magistrates Court.

Section 19B of the Family Law Act enables the Family Court to refer - with their consent - parties appearing before it to mediation services. Item 19 inserts new section 19BAA which will allow the Federal Magistrates Court to also refer by consent, parties appearing before it to mediation services.

Exclusive Jurisdiction over Associated Matters

New section 33A (inserted by item 25) stipulates that a matter 'associated' with another matter already before the Federal Magistrates Court, must be heard in the Federal Magistrates Court, if the Federal Magistrates Court has jurisdiction over the matter. Neither the Bill nor the Family Law Act contain a definition of an 'associated matter', but presumably a matter is 'associated' with another if it involves the same parties.

If proceedings are erroneously commenced in the Federal Court when they are associated with a matter in the Federal Magistrates Court, they may be transferred, but they are still to be taken as having been validly commenced: new section 33A(3).

Matters transferred from the Family Court (Discretionary)

New Section 33B (inserted by item 25) provides a mechanism for the transfer of pending matters from the Family Court to the Federal Magistrates Court.

The decision whether or not to transfer a matter to the Federal Magistrates Court is to be made by the Family Court, acting either on the application of a party to the proceedings, or on its own initiative: new section 33B(2). New subsections 33B(3)-(5) allow the Family Court, following consultation with the Federal Magistrates Court, to make standard Rules of Court to specify factors which should be taken into account when deciding whether or not an appeal should be transferred to the Federal Magistrates Court.

In deciding whether or not to transfer a matter, the Family Court of Australia must, in addition to any standard Rules of Court, have regard to the following factors: any associated matters presently before the Magistrates Court, the workload of the Magistrates Court and the interests of the administration of justice: new section 33B(6). The decision to transfer an appeal to the Federal Magistrates Court cannot be appealed against: new section 33B(8).

The regulations under the Family Law Act may specify a class of matters which cannot be transferred from the Family Court to the Federal Magistrates Court: new section 33B(10).

Matters transferred from the Family Court (Mandatory)

New section 33C (inserted by item 25) provides that the Family Law Act regulations may specify a class of matters that must be transferred from the Family Court to the Federal Magistrates Court before the matter is heard and determined. Regulations made for the purposes of section 33C(1) (called the 'transfer regulations') are to be tabled in Parliament, and may be disallowed by either House within 15 days after tabling. Otherwise, the transfer regulations will take effect immediately after the 15th day (in whichever House it occurs last): new sections 33C(5)-(7).

A mandatory transfer is not appealable: new section 33C(3).

Divorce and Spousal Maintenance Applications and Property Disputes

Sections 39 of the Family Law Act confers jurisdiction in matrimonial causes on various Commonwealth, State and Territory courts. Item 32 inserts new subsection 39(1A) which confers jurisdiction in certain matrimonial causes on the Federal Magistrates Court. 'Matrimonial cause' has a rather convoluted definition in section 4(1) of the Family Law Act, although those aspects of the definition relevant to new section 39(1A) relate to: proceedings between parties to a marriage for a decree of dissolution of marriage (divorce), an order for maintenance of one of the parties (spousal maintenance), or an order in respect of property arising out of the marriage (property settlement).(11)

Note that contrary to what the Attorney-General stated in his Second Reading Speech,(12) the Federal Magistrates Court will not have jurisdiction over applications for decrees of nullity of marriage or applications for declarations of validity of marriage.

Item 42 limits the jurisdiction of the Federal Magistrates Court in property disputes to those where the total unencumbered value of the property is $300,000 or less,(13) unless both parties consent to the jurisdiction of the court: new sections 45A(1) and (5). Having consented, a party cannot then object to the jurisdiction of the court: new section 45A(3).

If the Federal Magistrates Court proceeds to hear without the consent of both parties a property dispute where the value of the property involved exceeds the court's jurisdictional monetary limit, any orders that the court makes will nevertheless be valid: new section 45A(7).

Note that new section 45A does not place a monetary limit on the jurisdiction of the Federal Magistrates Court in relation to property settlements that are resolved by consent. Presumably, therefore, the Federal Magistrates Court will be able to make orders by consent in respect of property of any value.

New section 39(5A) (inserted by Item 33) confers on the Federal Magistrates Court jurisdiction in proceedings for inter-state enforcement of child-bearing expenses(14) and proceedings for the recovery of expenses incurred by the Commonwealth in taking action against a person who has contravened a parenting order.

Children

The jurisdiction of many courts to hear matters relating to children, including parenting orders and child maintenance orders, is dealt with in section 69H of the Family Law Act. (15)Item 62 inserts new subsection 69H(4) which confers, subject to one proviso explained below, a general jurisdiction on the Federal Magistrates Court in children's matters.

New section 69MA (inserted by item 63) limits the Federal Magistrates Court's jurisdiction to make residence orders to cases where the orders are not contested, or if contested, both parties consent to the court to hearing the case. Having consented, a party cannot then object to the jurisdiction of the court: new section 69MA(3).(16)

If the Federal Magistrates Court proceeds to hear a disputed residence application without the consent of both parties, any residence order that the court makes will nevertheless be valid: new section 69MA(5).

New subsections 69MA(1) and (6) contain a mechanism to enable the jurisdiction of the Federal Magistrates Court to be expanded by proclamation to include contested residence applications without the consent of the parties.

Appeals from the Federal Magistrates Court to the Family Court

The hierarchy of federal courts naturally dictates that there should be a right of appeal in family law matters from a decision of the Federal Magistrates Court to the Family Court, to reflect the fact that the Family Court is superior to the Federal Magistrates Court.

New subsection 94AAA (inserted by item 76) provides a right of appeal from a decree(17) of the Federal Magistrates Court to the Full Family Court (see below). The appeal is to be heard by the Full Court unless the Chief Judge decides the matter is appropriate for hearing by a single judge, and in that case, there is no further right of appeal to the Full Court: new sections 94AAA(3) and (11). Various interlocutory matters, as well as applications for an extension of time to appeal, or to dispose of an appeal by consent may, however, be heard by a single judge, and without an oral hearing: new section 94AAA(7)-(10).

There are certain decrees (prescribed decrees) of the Federal Magistrates Court, appeals from which can only be brought with leave of the Family Court. An application for leave to appeal is to be heard by a single judge of the Family Court: new section 94AA(2A).

Federal Magistrates Court may State a Case for Family Court

Item 80 amends section 94A of the Family Law Act to enable a Federal Magistrate to refer a question of law to the Full Family Court, at the wish of the Federal Magistrate and at least one of the parties to the proceedings. In the event of such a referral the Federal magistrate must state the facts and question in the form of a special case: new subsections 94A(3) and (4).

Other amendments concerning Family Law Act proceedings in the Federal Magistrates Court

Item 43 amends section 46 of the Family Law Act to make it clear that in determining, by reference its monetary limit, the jurisdiction of a court of summary jurisdiction to hear a property dispute, the total value of the property must be less than $20,000. The Explanatory Memorandum explains that this amendment is to bring the Family Law Act in line with the law as stated in In the marriage of Reid and Reid [1982] FLC 91-211.(18)

Items 86 and 87 amend the Family Law Act to ensure that provisions concerning the form that evidence may take in the Family Court will not apply in the Federal Magistrates Court, as the Magistrates Court has its own provisions about the giving of evidence.

Item 91 makes it clear that decrees of the Family Court will be able to be enforced in the Federal Magistrates Court.

Item 92 inserts new section 109B which relates to a section 109A, which is not currently part of the Family Law Act nor included in bills amending the Family Law Act. It is understood that section 109A will be introduced by a Bill to amend the Family Law Act, and that it relates to the making of Rules of Court in relation to enforcement of orders of the Family Court. It is understood that item 92 seeks to give the Federal Magistrates Court the same rule making power as the Family Court.

Child Support Assessment Act and Child Support (Registration and Collection) Act

Schedules 8 and 9 amend the Child Support Assessment Act 1989 (the Child Support Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Child Support (Registration and Collection) Act) respectively. The Bill amends each Act in an identical fashion. The amendments will be explained with reference to the Child Support Assessment Act, although the corresponding amendments to the Child Support (Registration and Collection) Act will be noted in parentheses.

Same jurisdiction as the Family Court of Australia

Section 99 of the Child Support Assessment Act (section 104 of the Child Support (Registration and Collection) Act) confers jurisdiction under the Child Support Assessment Act (the Child Support (Registration and Collection) Act) on the Family Court. The Bill amends each section to confer jurisdiction also on the Federal Magistrates Court.

Appeals from the Federal Magistrates Court to the Family Court

New section 102A of the Child Support Assessment Act (new section 107A of the Child Support (Registration and Collection) Act) provides a right of appeal by leave from a decision of a Federal magistrate to the Family Court. An appeal is to be heard by the Full Court of the Family Court, unless the Chief Justice considers it appropriate for it to be heard by a single judge, and in which case, there is no subsequent right of appeal to the Full Court: new subsections (2) and (10). The Bill enables a Family Court judge to make directions in relation to the conduct of an appeal, and to do so without an oral hearing: new subsections (6) and (7).

Ability to Refer Questions of Law to the Full Family Court

The Bill amends section 103 of the Child Support Assessment Act (section 108 of the Child Support (Registration and Collection) Act) to provide a mechanism to refer to the Full Family Court a question of law which the Federal magistrate and at least one of the parties wish to have determined by the Full Family Court: new section 103(3) of the Child Support Assessment Act (new section 108(3) of the Child Support (Registration and Collection) Act). In the event of such a referral the Federal magistrate must state the facts and question in the form of a special case: new subsection (3)(c).

Human Rights Law

Human Rights and Equal Opportunity Commission Act

Schedule 16 amends the Human Rights Legislation Amendment Bill (No. 1) 1999, which in turn amends the Human Rights and Equal Opportunity Commission Act 1986 (the Human Rights and Equal Opportunity Commission Act).

Same Jurisdiction as the Federal Court

The Human Rights Legislation Amendment Bill (No 1) 1999 inserts new Part IIB into the Human Rights and Equal Opportunity Commission Act to provide redress for unlawful discrimination. It is not proposed to discuss the new part in detail here; the reader is referred to Bills Digest No. 115 of 1998-1999 for more information about the operation of Part IIB. So far as is relevant, Division 2 of Part IIB allows a person who has made a complaint to the Human Rights and Equal Opportunities Commission (HREOC) alleging unlawful discrimination, and who has had that complaint terminated by the President of HREOC, to apply to the Federal Court for a declaration of unlawful discrimination and other remedial orders: proposed section 46PO.

Items 4-21 amend the proposed new Part IIB Division 2 in order to allow a person to also apply to the Federal Magistrates Court.

The Human Rights Legislation Amendment Bill (No 1) 1999 also inserts a proposed section 49B which clarifies that the Federal Court is to have jurisdiction with respect to civil matters arising under Parts IIB or IIC. (Proposed Part IIC deals with the referral of discriminatory awards and determinations to the Australian Industrial Relations Commission or a tribunal). Item 22 amends the proposed section 49B to confer the same jurisdiction on the Federal Magistrates Court.

Trade Practices Law

Trade Practices Act

Schedule 24 amends the Trade Practices Act 1974 (the Trade Practices Act). The amendments confer a limited jurisdiction on the Federal Magistrates Court in respect of actions for damages in the following areas:

  • unfair practices
  • product safety and product information

The jurisdiction of the Federal Court is limited to claims for damages of no more than $200,000 or another amount specified by regulation.

Sections 82 and 86 of the Trade Practices Act effectively confer on the Federal Court jurisdiction to hear claims for damages arising from contraventions of Part V Division 1 (Unfair Practices), Part V Division 1A (Product Safety and Product Information). Items 2 and 3 amend these sections as necessary so as to confer jurisdiction on the Federal Magistrates Court. Item 1 makes a necessary consequential amendment to section 75AS of the TPA.

Item 4 inserts new section 86AA which limits the jurisdiction of the Federal Magistrates Court under section 82 of the Trade Practices Act to claims for damages of $200,000 or less, or some other amount that is fixed by regulation.

Consequential Amendments

Federal Court of Australia Act

Schedule 12 amends the Federal Court of Australia Act 1976 (the Federal Court of Australia Act). The amendments establish an interface between the Federal Court and the newly created Federal Magistrates Court.

Item 1 gives the Federal Court an appellate jurisdiction in respect of judgments of the Federal Magistrates Court in its original jurisdiction in the areas of bankruptcy, trade practices, human rights, administrative and employment law. (The Family Court has an appellate jurisdiction in respect of judgments of the Federal Magistrates Court in its original jurisdiction in the area of family law).

Item 2 specifies that when exercising its jurisdiction in respect of appeals from the Federal Magistrates Court, the Federal Court is to be constituted by a Full Court unless the Chief Justice decides that it is appropriate that the appeal be heard by a single judge.

Items 7 and 8 provide that appeals to the High Court from decisions of the Federal Court in respect of appeals from the Federal Magistrates Court are to be brought only with special leave of the High Court.

Item 4 enables the Federal Court, in dismissing an appeal (from both a decision of the Federal Magistrates Court, and presumably, a first instance decision of the Federal Court), to give reasons for its decisions in short form, where the court is of the opinion that the appeal does not raise any question of general principle.

Item 6 inserts new sections 32AA, 32AB and 32AC of the Federal Court of Australia Act that deal with the transfer of proceedings from the Federal Court to the Federal Magistrates Court. These provisions exactly mirror new sections 33A, 33B and 33C of the Family Law Act, and provide for transfer of proceedings in three situations: where associated proceedings are before the Federal Magistrates Court, where the Federal Court decides to transfer the proceedings (discretionary transfer) and where the Federal Court must, pursuant to regulations under the Federal Court of Australia Act, transfer the proceedings (mandatory transfer).

Associated Proceedings

New section 32AA(1) stipulates that a matter 'associated' with another matter already before the Federal Magistrates Court, must be heard in the Federal Magistrates Court, if the Federal Magistrates Court has jurisdiction over the matter. If the proceedings are erroneously commenced in the Federal Court when they are associated with a matter in the Federal Magistrates Court, they may be transferred, but they are still to be taken as having been validly commenced: new section 32AA(2).

Discretionary Transfer

The Federal Court may transfer proceedings to the Federal Magistrates Court on it own initiative, or on the application of one of the parties to the proceedings: new section 32AB(2). The Federal Court can, following consultation with the Federal Magistrates Court, make standard Rules of Court concerning the transfer of proceedings: new sections 32AB(3)-(5). In deciding whether to transfer proceedings, the Federal Court must, in addition to any Rules of Court, have regard to following factors: any associated matters presently before the Magistrates Court, the workload of the Magistrates Court and the interests of the administration of justice: new section 32AB(6). The decision to transfer the proceedings is not appealable: new section 32AB(8).

Mandatory Transfer

Regulations made under the Federal Court of Australia Act can specify a class of proceedings which must be transferred from the Federal Court to the Federal Magistrates Court before the proceedings are heard and determined: new section 32AC(1). Regulations made for the purposes of section 32AC(1) (called the 'transfer regulations') are to be tabled in Parliament, and may be disallowed by either House within 15 days after tabling. Otherwise, the transfer regulations will take effect immediately after the 15th day (in whichever House it occurs last): new sections 32AC(5)-(7).

Mandatory transfer is not appealable: new section 32AC(3).

Concluding Comments

The table below provides a summary of the jurisdiction of the Federal Magistrates Court. In the table the term 'complete' is used to mean that the jurisdiction of the Federal Magistrates Court is identical to the Federal Court, or the Family Court, as the case may be.

Area of Law

Jurisdiction of the Federal Magistrates Court

Administrative Law

  • Administrative Appeals Tribunal Act 1975
  • Administrative Decisions (Judicial Review) Act 1977

- appeals from the AAT (except for
Immigration portfolio legislation)

- applications for review (except for
Immigration portfolio legislation)

Bankruptcy

  • Bankruptcy Act 1966

- complete (except for jury trials)

Employment Law

  • Workplace Relations Act 1996

- injunctions in support of stop orders

- remedies for infringing the right of
freedom of association

Family Law

  • Family Law Act 1975

 

  • Child Support (Assessment) Act 1989
  • Child Support (Registration and Collection) Act 1988

- divorce

- spousal maintenance

- property disputes (up to $300,000
unless parties agree)

- children's matters (except for disputed
residence applications, unless parties agree)

- matters transferred from the Family Court

- complete


- complete

Human Rights Law

  • Human Rights and Equal Opportunities Act 1986*

- complete

Trade Practices Law

  • Trade Practices Act 1974

- actions for damages (up to $200,000)
arising from contraventions of provisions
of the Act dealing with unfair practices
and product safety and information

*Assuming that the Human Rights Legislation Amendment Bill (No. 1) 1999 is passed.

As may be expected, the Federal Magistrates Court has its proponents as well as opponents. The Senate Selection of Bills Committee referred the Bill to the Senate Legal and Constitutional Legislation Committee on 29 June 1999, and the Committee is due to report on 30 September 1999. The Committee has so far(19) received 21 submissions with respect to the Federal Magistrates Court.

Judging from the submissions received by the Senate Committee, most opposition to the Federal Magistrates Court (FMC) comes from family law institutions and practitioners. (Numerous state Attorneys-General have also opposed the FMC, arguing that state magistrates courts are ideally placed - provided they receive additional funding - to perform the function of the FMC). The strongest support for the FMC comes from the Federal Court, HREOC and legal aid bodies. It is instructive to comment on, and to consider some of the submissions received by the Senate Committee in respect of, the jurisdiction of the FMC in particular areas. There are however some common concerns and these will be discussed first.

General Concerns

Some submissions to the Senate Committee argue that establishment of the FMC as a distinct court from the Family Court, or the Federal Court, as the case may be, will result in:

  • 'forum shopping' (giving the parties the choice as to whether they bring proceedings either in the FMC or in the Family Court or the Federal Court, as the case may be). This concern is addressed in part by the reciprocal transfer provisions in the Federal Magistrates Bill 1999, the Federal Court of Australia Act and Family Law Act,(20) but transfer is an inefficient and costly process.
  • public confusion, particularly for those members of the public who do not have legal representation (litigants in person).

Another concern relates to the technical competence of Federal magistrates to accurately exercise the jurisdiction of the FMC. As can be seen from the summary table on page 15, the jurisdiction of the FMC is an agglomeration of different areas of law. Some of those areas are in themselves both quite broad and deep, and require specialist practitioners.

Is it therefore perhaps unreasonable to expect a magistrate to be conversant with say, the intricacies of the treatment of superannuation funds for the purposes of a property dispute under the Family Law Act on the one hand, and the law relating to contents of natural justice under the Administrative Decisions (Judicial Review) Act on the other? It is true that state magistrates routinely have to deal with a plethora of different matters, though arguably few of them are as complex as some of those bestowed on the FMC.

Administrative Law

Judicial Review at Common Law

The FMC has jurisdiction to hear applications under the Administrative Decisions (Judicial Review) Act (apart from immigration decisions). The Administrative Decisions (Judicial Review) Act is a legislative statement of the grounds for review by the courts of administrative decisions. Those grounds are found in the common law, and the Administrative Decisions (Judicial Review) Act does not replace them. There are therefore two bases of judicial review: one statutory and the other case based. The FMC has jurisdiction over only one of those bases, namely the statutory (Administrative Decisions (Judicial Review) Act) basis, whereas the Federal Court has jurisdiction over both.(21)

The non-conferral on the FMC of a jurisdiction to conduct judicial review of administrative action at common law splits up the administration of federal administrative law. This has the potential to result in forum shopping. In particular, it is possible that litigants will choose the Federal Court as their forum of choice, as they will be able to plead both common law and Administrative Decisions (Judicial Review) Act based claims for judicial review in that court.

Migration Decisions

The FMC does not have jurisdiction over any of the Minister for Immigration and Multicultural Affairs' portfolio legislation.(22) Jurisdiction in respect of such legislation is conferred on the Federal Court, and only then in limited circumstances.(23) The non-conferral on the FMC of jurisdiction in migration and citizenship matters reflects the Government's concern to limit the extent to which these matters are subject to review by the courts.(24)

Family Law

A number of people associated with the Family Court, including former judges, executive officers of the court and state magistrates have made forceful submissions in relation to the family law jurisdiction of the FMC. The submissions from the Office of the Chief Executive of the Family Court point out, amongst other things, that:(25)

  • Australian and overseas evidence demonstrates that when a generalist court is given a family law jurisdiction, the quality of performance suffers greatly and family law matters are given lower priority.
  • It is often difficult to judge the complexity of a family law matter at its outset. So, while at the commencement of a proceeding it may be appropriate for it to be heard by the FMC, it may become apparent at a later stage that the proceeding should be heard by the Family Court. It would then be necessary to transfer the matter from the FMC to the Family Court.
  • The Executive may, through the 'transfer regulations', alter the jurisdiction of the FMC and this represents an unacceptable incursion on the separation of the judicial from the executive and legislative powers.
  • Under the Bill, Federal magistrates have jurisdiction over contested and uncontested applications for contact orders.(26) Yet many contact cases are not suitable for summary determination - a decision to refuse a parent all contact is one of the gravest decisions a family court judge can make.

Human Rights Law

In its submission to the Senate Committee,(27) HREOC noted that unlike the Federal Court, the FMC has no jurisdiction to hear representative complaints. HREOC recommended that the FMC have the facility to hear representative complaints.

Endnotes

  1. Australian Citizenship Act 1948; Immigration (Guardianship of Children) Act 1946; Migration Act 1958, and regulations made under those Acts. Decisions under other Acts specified in regulations are also exempt from review under the Administrative Decisions (Judicial Review) Act: new section 44AA(2)(c).

  2. Sections 3 and 6(2) of the Administrative Appeals Tribunal Act.

  3. There is a substantial body of law surrounding the meaning of the terms 'aggrieved person', 'decision' and 'conduct' in the context of the Administrative Decisions (Judicial Review) Act, as well as the various grounds of review under the Administrative Decisions (Judicial Review) Act. It is beyond the scope of this Digest to canvass these things here.

  4. See Note 1, above.

  5. This legislation has not yet passed through both houses of Parliament.

  6. To be inserted by the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999.

  7. To be inserted by the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999.

  8. The term 'counselling services' is used here to refer to family and child counselling by a family and child counsellor, as those terms are defined in section 4(1) of the Family Law Act. Those definitions include marriage and child counselling by court counsellors, staff of approved counselling organisations and other authorised counsellors.

  9. A separate representative is a legal practitioner appointed by the court either on its own initiative, or at the request of a child or a child welfare organisation, who appears in the proceedings to represent the child's interests (only): section 68L of the Family Law Act.

  10. The term 'mediation services' is used here to refer to family and child mediation by a family and child mediator, as those terms are defined in section 4(1) of the Family Law Act. Those definitions include mean mediation of disputes involving parents, children or parties to a marriage, by court mediators, staff of approved mediation organisations and other authorised mediators.

  11. Proceedings in relation to property can be commenced before, during or after an application for divorce: paragraph (ca)(ii). There are other types of proceedings which come within the definition of 'matrimonial cause' for the purposes of new section 39(1A), but these are mainly of an interlocutory nature or concern the approval and enforcement of maintenance agreements: see paragraphs (d) - (f). They will not be discussed here.

  12. Federal Magistrates (Consequential Amendments) Bill 1999, Second Reading Speech, Hon Daryl Williams, House of Representatives, Debates, 24 June 1999, p. 7367.

  13. The Family Law Act Regulations may prescribe a different amount for the purposes of section 45A: see section 45A(1)(a)(ii).

  14. Child bearing expenses are the costs of maintaining a mother as well as her reasonable medical expenses during pregnancy, to which the father, if he is not married to the mother, is required to make a proper contribution under section 67B of the Family Law Act.

  15. The jurisdiction of the Federal Magistrates Court in respect of children is limited in one small regard: the court is unable to hear applications for leave for adoption proceedings in section 60G: see new subsection 69H(4).

  16. A 'residence order', in the terminology of the Family Law Act prior to the 1996 amendments, is a custody order.

  17. 'Decree' is defined widely in section 4(1) of the Family Law Act to include a judgment or an order.

  18. Explanatory Memorandum, p. 12.

  19. As at 26 August 1999.

  20. New sections 32AB and 32AC of the Federal Court of Australia Act, 33B and 33C of the Family Law Act and proposed sections 39-41 of the Federal Magistrates Bill 1999.

  21. The Federal Court has jurisdiction over the Administrative Decisions (Judicial Review) Act basis of judicial review by virtue of section 8 of the Administrative Decisions (Judicial Review) Act, and over the common law basis by virtue of section 39B of the Judiciary Act 1903.

  22. See Note 1, above.

  23. Sections 475, 476, 485 and 486 of the Migration Act place restrictions on the grounds of review available in the Federal Court. Note that by virtue of section 75 of the Constitution, the High Court retains its original jurisdiction in these matters.

  24. See, for example, the Migration Legislation Amendment (Judicial Review) Bill 1998.

  25. Office of the Chief Executive, Family Court of Australia, Submission to Senate Legal and Constitutional Legislation Committee on Federal Magistrates Bill 1999 and Federal Magistrates (Consequential Amendments) Bill 1999, 4 August 1999.

  26. A 'contact order', in the terminology of the Family Law Act prior to the 1996 amendments, is an access order.

  27. Human Rights and Equal Opportunities Commission, Submission to Senate Legal and Constitutional Legislation Committee on Federal Magistrates Bill 1999 and Federal Magistrates (Consequential Amendments) Bill 1999, 5 August 1999.

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25 August 1999
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ISSN 1328-8091
© Commonwealth of Australia 1999

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Published by the Department of the Parliamentary Library, 1999.

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