Explanatory Memorandum
(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)Schedule 2 - Amendments relating to court rules
GENERAL OUTLINE
736. Schedule 2 makes amendments to the Legislation Act (or in the alternative, the Legislative Instruments Act, depending on the time at which Part 2 of the Schedule commences) which make clear that rules of court are not legislative instruments. Schedule 2 includes an application provision which makes clear that the amendments do not affect the rights or liabilities of parties to proceedings commenced in a court prior to the commencement of the amendments.
737. Schedule 2 also makes amendments to the Family Law Act. These amendments make clear that certain provisions of the Family Law Act which set out how the Legislative Instruments Act applies to rules of the Family Court apply to those rules whether they are made under the Family Law Act or another Act. This removes an inconsistency between the Family Law Act and other enabling legislation for federal courts.
PART 1 - AMENDMENTS COMMENCING ON PROCLAMATION
Family Law Act 1975
Item 1 - Subsection 123(2)
738. Item 1 amends subsection 123(2) of the Family Law Act to omit the phrase 'under this section' and replace it with 'by Judges under this section or any other Act'. This amendment makes clear that the Legislation Act (or in the alternative, the Legislative Instruments Act, depending on the time at which Part 2 of the Schedule commences) applies to rules of the Family Court whether they are made under the Family Law Act or any other Act. This amendment is consistent with other enabling legislation for federal courts and brings the Family Law Act into line with that legislation. The words 'by Judges' are included for consistency with the various provisions of the Family Law Act relating to court rules, as those provisions refer to or provide for rules made by Judges. For example, subsection 26C(1) refers to 'Rules of Court made by the Judges'.
Item 2 - Subsection 123(2A)
739. Item 2 amends subsection 123(2A) of the Family Law Act to omit the phrase 'under this Act' and replace it with 'by Judges under this or any other Act'. This amendment makes clear that the Office of Parliamentary Counsel may provide assistance in the drafting of rules of the Family Court whether they are made under the Family Law Act or any other Act. This amendment is consistent with other enabling legislation for federal courts and brings the Family Law Act into line with that legislation. The words 'by Judges' are included for consistency with the various provisions of the Family Law Act relating to court rules, as those provisions refer to or provide for rules made by Judges. For example, subsection 26C(1) refers to 'Rules of Court made by the Judges'.
PART 2 - AMENDMENT OF THE LEGISLATIVE INSTRUMENTS ACT 2003
Legislative Instruments Act 2003
Item 3 - Section 9
740. Item 3 amends section 9 of the Legislative Instruments Act to omit the phrase 'for the High Court, the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia'.
741. Section 9 of the Legislative Instruments Act provides that rules of court for the High Court, the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia are not legislative instruments for the purposes of the Legislative Instruments Act. The note to section 9 of the Legislative Instruments Act provides that rules of court are treated as if they are legislative instruments by express amendment of their enabling legislation. The amendment to section 9 of the Legislative Instruments Act makes it clear that all rules of court are not legislative instruments, regardless of the court administering those rules.
Item 4 - Section 9 (note)
742. Item 4 amends the note to section 9 of the Legislative Instruments Act to replace the reference to 'are' with a reference to 'may be'. This amendment updates the drafting of the note to reflect that the enabling legislation for all rules of court may not necessarily treat rules of court as if they were legislative instruments.
PART 3 - AMENDMENT OF THE LEGISLATION ACT 2003
Legislation Act 2003
Item 5 - Paragraph 8(8)(d)
743. Item 5 repeals paragraph 8(8)(d) of the Legislation Act and replaces it with a new paragraph 8(8)(d) which provides that rules of court or a compilation of rules of court are not legislative instruments, and cannot become legislative instruments under subsection 8(3) of the Legislation Act by being registered as legislative instruments.
744. The previous paragraph 8(8)(d) of the Legislation Act provided that, despite anything else in section 8 of the Legislation Act, rules of court, or a compilation of rules of court, for the High Court, the Federal Court of Australia, the Family Court of Australia or the Federal Circuit Court of Australia are not legislative instruments, and cannot become legislative instruments under subsection 8(3) of the Legislation Act by being registered as legislative instruments. The amendment to paragraph 8(8)(d) of the Legislation Act makes it clear that rules of court are not legislative instruments, regardless of the court administering those rules.
Item 6 - Subsection 8(8) (note)
745. Item 6 repeals the note to subsection 8(8) of the Legislation Act and replaces it with a new note which provides that rules of court may be registered under the Legislation Act and otherwise treated as if they were legislative instruments by their enabling legislation. This amendment updates the drafting of the note to reflect that the enabling legislation for all rules of court may not necessarily treat rules of court as if they were legislative instruments.
PART 4 - APPLICATION OF AMENDMENTS
Item 7 - Application of amendments
746. Item 7 provides that amendments by this Schedule apply to any rules of court made before or after the commencement of this item. However, item 7 does not affect the rights or liabilities of parties to proceedings commenced in a court before the commencement of this item (to the extent that those rights or liabilities arose from, or were affected by court rules to which the item applies). This ensures that the characterisation of rules of court as not legislative instruments does not affect the rights or liabilities of parties to proceedings in a court which were commenced before the commencement of this Schedule.