Explanatory Memorandum
(Circulated by the authority of the Attorney-General, the Honourable Daryl Williams AM QC MP)GENERAL OUTLINE
The Federal Magistrates Bill establishes the Federal Magistrates Court. The Federal Magistrates (Consequential Amendments) Bill makes consequential amendments to give the Federal Magistrates Court concurrent jurisdiction with either the Federal Court of Australia or the Family Court of Australia under various Acts, and makes other minor consequential amendments to a number of other Acts.
The Bill amends the following Acts to give the Federal Magistrates Court jurisdiction:
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- Administrative Appeals Tribunal Act 1975
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- Administrative Decisions (Judicial Review) Act 1977
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- Bankruptcy Act 1966
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- Child Support (Assessment) Act 1989
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- Child Support (Registration and Collection) Act 1988
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- Family Law Act 1975
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- Human Rights and Equal Opportunity Commission Act 1986
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- Trade Practices Act 1974
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- Workplace Relations Act 1996
Amendments are made to the Federal Court Act 1976, to provide for appeals from the Federal Magistrates Court to the Federal Court, other than in family law and child support matters, where appeals can be made to the Family Court. The amendments also give the Federal Court power to transfer proceedings to the Federal Magistrates Court. There are also a number of other minor consequential amendments made to this Act.
Amendments are made to the Family Law Act 1975 to give the Federal Magistrates Court jurisdiction under that Act. In addition, amendments are made to provide for appeals from the Federal Magistrates Court to the Family Court in proceedings under that Act and to give the Family Court power to transfer proceedings to the Federal Magistrates Court. There are also a number of other minor consequential amendments made to that Act.
Consequential amendments are made to the following Acts as a result of the Federal Magistrates Court having jurisdiction under the Administrative Appeals Tribunal Act 1975:
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- Archives Act 1983
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- Freedom of Information Act 1982
Consequential amendments are made to the following Acts as a result of the Federal Magistrates Court having jurisdiction under the Administrative Decisions (Judicial Review) Act 1976:
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- ACIS Administration Act 1999
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- National Crime Authority Act 1984
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- Taxation Administration Act 1953
Consequential amendments are made to the following Acts, either as a result of the establishment of the Federal Magistrates Court as a new federal court, or as a result of the establishment of the judicial office of Federal Magistrate as part of that court:
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- Acts Interpretation Act 1901
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- Australian Citizenship Act 1948
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- Crimes (Superannuation Benefits) Act 1989
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- Federal Proceedings (Costs) Act 1981
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- Foreign Evidence Act 1994
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- Judges (Long Leave Payments) Act 1979
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- Judges Pensions Act 1968
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- Ombudsman Act 1976
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- Parliamentary Contributory Superannuation Act 1948
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- Public Service Act 1922
FINANCIAL IMPACT STATEMENT
The Bill will not have any significant financial impact beyond that incurred in establishing the Federal Magistrates Court.
NOTES ON CLAUSES
This clause formally provides for the short title of the Federal Magistrates (Consequential Amendments) Bill 1999.
Clause 2 provides for the commencement of the Act. Subclause 2(1) provides that the Act will commence on Royal Assent, subject to this section.
Subclause 2(2) provides that, if the ACIS Administration Act 1999 commences after the commencement of section 1 of this Act, Schedule 1 (amending the ACIS Administration Act 1999) commences immediately after the commencement of that Act. This ensures that the amendments do not take effect until that Act has commenced.
Subclause 2(3) provides that, if Schedule 1 to the Human Rights Legislation Amendment Act (No. 1) 1999 commences after the commencement of section 1 of this Act, Schedule 16 of this Act commences immediately after the commencement of Schedule 1 of the Human Rights Legislation Amendment Act (No. 1) 1999. This ensures that the amendments to the Human Rights and Equal Opportunity Commission Act 1986 do not take effect until after amendments to that Act have been made by Schedule 1 to the Human Rights Legislation Amendment Act (No. 1) 1999.
Subclause 2(4) provides that if item 2 of Schedule 1 to the Human Rights Legislation Amendment Act (No. 2) 1999 commences before the commencement of section 1, then the amendments made by Schedule 16 are taken to be made to the Human Rights and Responsibilities Commission Act 1986 rather than the Human Rights and Equal Opportunities Commission Act 1986. This amendment is necessary because item 2 of Schedule 1 to the Human Rights Legislation Amendment Act (No. 2) 1999 changes the name of the Human Rights and Equal Opportunities Commission Act 1986 to the Human Rights and Responsibilities Commission Act 1986.
Subclause 2(5) provides that if section 151AQA of the Trade Practices Act 1975 commences after the commencement of section 1 of this Act, then items 5 and 6 of Schedule 24 commence after the commencement of that provision. This is to ensure that that section is not amended by Schedule 24 before it commences operation.
Subclause 2(6) provides that if section 152DNB of the Trade Practices Act 1975 commences after the commencement of section 1 of this Act, then item 7 of Schedule 24 commences after the commencement of that provision. This is to ensure that that section is not amended by Schedule 24 before it commences operation.
Subclause 2(7) provides that if section 127AAA of the Workplace Relations Act 1996 commences after the commencement of section 1 of this Act, then item 5 of Schedule 25 commences after the commencement of s127AAA. This is to ensure that that section is not amended by Schedule 25 before it commences operation.
Subclause 2(8) provides that if section 127AAB of the Workplace Relations Act 1996 commences after the commencement of section 1 of this Act, then item 6 of Schedule 25 commences after the commencement of s127AAB. This is to ensure that that section is not amended by Schedule 25 before it commences operation.
Subclause 2(9) provides that if section 298TA of the Workplace Relations Act 1996 commences after the commencement of section 1 of this Act, then item 9 of Schedule 25 commences after the commencement of s298TA. This is to ensure that that section is not amended by Schedule 25 before it commences operation.
This clause provides that, subject to section 2, each Act in the Schedules to this Act is amended or repealed as set out in the Schedule concerned.
Schedule 1 - Amendment of ACIS Administration Act 1999
These amendments are consequential upon applications under the Administrative Decisions (Judicial Review) Act 1976 being able to be made to the Federal Magistrates Court as well as the Federal Court.
Schedule 2 - Amendment of Acts Interpretation Act 1901
This item amends section 16C, to ensure that a Federal Magistrate is not included in the term Magistrate when referred to in an Act. State and Territory Magistrates are given powers under numerous Acts to perform various functions. Federal Magistrates will have power to perform only those functions which are expressly conferred on them by statute.
This item amends paragraph 26(d), to ensure that the Federal Magistrates Court is excluded from the definition of court of summary jurisdiction.
Schedule 3 - Amendment of Administrative Appeals Tribunal Act 1975
The amendments made by these items give the Federal Magistrates Court the same powers as the Federal Court with respect to appeals from the Administrative Appeals Tribunal (AAT) under this Act.
This item inserts section 44AA, the effect of which is that any appeals from decisions of the AAT must be filed in the Federal Court, but that such appeals can then be transferred by the Federal Court to the Federal Magistrates Court. Appeals relating to decisions of the AAT constituted by one or more presidential member and decisions made under portfolio legislation of the Minister for Immigration and Ethnic Affairs cannot be transferred to the Federal Magistrates Court.
The amendments made by these items will impose similar obligations with respect to the custody of AAT documents on the Federal Magistrates Court as exist for the Federal Court.
Schedule 4 - Amendment of Administrative Decisions (Judicial Review) Act 1977
The amendments made by these items are consequential on both the Federal Court and the Federal Magistrates Court having jurisdiction under this Act.
The amendments made by these items give the Federal Magistrates Court concurrent jurisdiction with the Federal Court under this Act, except for decisions made under portfolio legislation of the Minister for Immigration and Ethnic Affairs, where the Federal Court will retain exclusive jurisdiction under this Act.
The amendments made by these items give the Federal Magistrates Court the same powers as the Federal Court in dealing with applications made under this Act.
This clause provides that any Regulations made under subsection 19(1) have effect as if they include a reference to the Federal Magistrates Court.
Schedule 7 - Amendment of Bankruptcy Act 1966
These amendments ensure that the Federal Magistrates Court has the same jurisdiction and powers as the Federal Court under this Act.
This item amends subsection 30(3), to ensure that it is only in the Federal Court that the Court can direct that a question of fact be tried by jury in proceedings under this Act. This amendment is required since the Federal Magistrates Court will not have any juries in civil proceedings.
Schedule 15 - Amendment of Freedom of Information Act 1982
These amendments are consequential upon the Federal Magistrates Court being able to hear appeals from the Administrative Appeals Tribunal. They are consistent with the existing provisions which apply to the Federal Court.
Schedule 23 - Amendment of Taxation Administration Act 1953
This amendment is consequential upon both the Federal Court and the Federal Magistrates Court having jurisdiction under the Administrative Decisions (Judicial Review) Act 1976. It is consistent with the provisions which apply to the Federal Court.