Supplementary Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)AMENDMENTS TO THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS) BILL 2019
(Government)
GENERAL OUTLINE
1. The Federal Circuit and Family Court of Australia Bill 2019 ('FCFC Bill'), together with the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 (together, the Bills), would bring the Federal Circuit Court of Australia (the Federal Circuit Court) and the Family Court of Australia (the Family Court) together into an overarching, unified administrative structure to be known as the Federal Circuit and Family Court of Australia (FCFC). The structural reforms facilitated by the Bill would create a framework in the FCFC for common leadership, common management and a comprehensive and consistent internal case management approach.
2. On 5 December 2019 the Senate referred the Bills to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report. In its report released 20 November 2020, the committee's sole recommendation was that the Bills be passed.
3. The purpose of these amendments is to provide for the Rules of Court of the FCFC Division 1 and the Rules of Court of the FCFC Division 2 to be made solely by the Chief Justice and the Chief Judge, respectively, rather than by a majority of Judges, for the first 18 months from commencement (instead of two years from commencement). The power to make Rules of Court reverts back to the Judges, or a majority of them, thereafter.
FINANCIAL IMPACT
4. None.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Amendments to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019
1. These amendments are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the amendments
2. Currently, clause 2 (table item 4) provides that Schedule 1, Part 4 commences the day after the end of the period of 2 years beginning on the day the Federal Circuit and Family Court of Australia Act 2019 commences. Schedule 1, Part 4 sets out consequential amendments to give effect to the Rules of Court of Division 1 and Division 2 reverting to being made by the Judges, or a majority of them (rather than being made solely by the Chief Justice and Chief Judge).
3. Currently Schedule 1, item 163 also adds a new note following subsection 123(1) of the Federal Circuit and Family Court of Australia Act 2019 clarifying that the power to make Rules of Court will be amended two years after the commencement of the Federal Circuit and Family Court of Australia Act 2019.
4. The amendments substitute "2 years" with "18 months". The effect of these amendments is to reduce the period of time when the Chief Justice and Chief Judge can solely make Rules of Court from two years to 18 months.
Human rights implications
5. These amendments do not engage any of the applicable rights or freedoms.
Conclusion
6. These amendments are compatible with human rights as they do not raise any human rights issues.
NOTES ON AMENDMENTS
List of abbreviations
FCFC (Division 1) Federal Circuit and Family Court of Australia (Division 1)
FCFC (Division 2) Federal Circuit and Family Court of Australia (Division 2)
Amendment: Clause 2, page 2 (table item 4)
This amendment substitutes "2 years" with "18 months" in clause 2, table item 4.
Clause 2 (table item 4) provides that Schedule 1, Part 4 commences the day after the end of the period of 2 years beginning on the day the Federal Circuit and Family Court of Australia Act 2019 commences. Schedule 1, Part 4 sets out consequential amendments to give effect to the Rules of Court of FCFC Division 1 and FCFC Division 2 reverting to being made by the Judges, or a majority of them (rather than being made solely by the Chief Justice and Chief Judge).
The effect of this amendments is to reduce the period of time during which the Chief Justice and Chief Judge can solely make Rules of Court from two years to 18 months.
Amendment: Schedule 1, item 163, page 34 (line 24)
This amendment substitutes "2 years" with "18 months" in the Note to section 123(1) of the Family Law Act 1975. This revised Note identifies that, 18 months after the commencement of the Federal Circuit and Family Court of Australia Act 2019, the power to make rules of court under section 123 will revert back to the Judges or a majority of them, and referring to Part 4 of Schedule 1 to this Bill as the source of this change.