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
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).
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.
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
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).
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
|
- 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
-
- 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
|
- 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.
-
- 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).
- Sections 3 and 6(2) of the Administrative Appeals Tribunal Act.
- 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.
- See Note 1, above.
- This legislation has not yet passed through both houses of
Parliament.
- To be inserted by the Workplace Relations Legislation Amendment
(More Jobs, Better Pay) Bill 1999.
- To be inserted by the Workplace Relations Legislation Amendment
(More Jobs, Better Pay) Bill 1999.
- 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.
- 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.
- 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.
- 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.
- Federal Magistrates (Consequential Amendments) Bill 1999,
Second Reading Speech, Hon Daryl Williams, House of
Representatives, Debates, 24 June 1999, p. 7367.
- The Family Law Act Regulations may prescribe a different amount
for the purposes of section 45A: see section 45A(1)(a)(ii).
- 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.
- 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).
- A 'residence order', in the terminology of the Family Law Act
prior to the 1996 amendments, is a custody order.
- 'Decree' is defined widely in section 4(1) of the Family Law
Act to include a judgment or an order.
- Explanatory Memorandum, p. 12.
- As at 26 August 1999.
- 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.
- 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.
- See Note 1, above.
- 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.
- See, for example, the Migration Legislation Amendment (Judicial
Review) Bill 1998.
- 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.
- A 'contact order', in the terminology of the Family Law Act
prior to the 1996 amendments, is an access order.
- 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.
Andrew Grimm
25 August 1999
Bills Digest Service
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ISSN 1328-8091
© Commonwealth of Australia 1999
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