EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 189

 

Issued by the Authority of the Attorney-General

 

Federal Magistrates Act 1999

Federal Magistrates Amendment Regulations 2009 (No. 2)

 

Federal Court of Australia Act 1976

Federal Court of Australia Amendment Regulations 2009 (No. 2)

 

The Federal Magistrates Act 1999 (the Federal Magistrates Act) and the Federal Court of Australia Act 1976 (the Federal Court Act) establish the Federal Magistrates Court (the FMC) and the Federal Court of Australia (the Federal Court) respectively as federal courts under Chapter III of the Constitution.

Subsection 120(1) of the Federal Magistrates Act and subsection 60(1) of the Federal Court Act provide that the Governor‑General may make regulations prescribing matters required or permitted by those Acts to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to those Acts. In particular, subsection 120(3) of the Federal Magistrates Act and subsection 60(1) of the Federal Court Act provide for the prescribing of fees to be paid in respect of proceedings in the FMC and Federal Court respectively.

A reduced court fee structure previously applied to unlawful termination court applications under the Workplace Relations Act 1996 (the WR Act) and was prescribed under the Federal Court of Australia Regulations 2004 and the Federal Magistrates Regulations 2000 (the Regulations). The Federal Court of Australia Amendment Regulations 2009 (No. 1) and the Federal Magistrates Amendment Regulations 2009 (No. 1) amended the Regulations to continue the reduced court application arrangements under the new Fair Work Act 2009 (the FW Act).

The purpose of the amendments is to remove redundant references to the WR Act. In addition, the purpose of the regulations is to clarify that the FW Act court applications prescribed in the Regulations, which attract a reduced fee of $59.50 from 1 July 2009, are not subject to any other court fees, such as a setting-down and hearing fee.

The amendments will ensure that the reduced court applications fees under the FW Act framework will not be subject to the standard biennial adjustment of court fees. The fee for the FW Act court applications prescribed by the Regulations is set by the Fair Work Regulations 2009. This fee is adjusted annually in accordance with an indexation factor based on the consumer price index and does not need to be subject to the standard biennial adjustment prescribed under the Regulations.

Details of the Regulations are set out in the Attachment.

The Acts specify no conditions that need to be satisfied before the power to make the Regulations may be exercised.

The Regulations are legislative instruments for the purposes of the Legislative Instruments Act 2003.

The amendments will commence retrospectively from 1 July 2009. The necessary amendments should have taken effect from 1 July 2009 to coincide with the new FW Act framework to continue the similar arrangements which had existed under the WR Act. These amendments were not made before 1 July 2009 inadvertently.

The amendments will not offend subsection 12(2) of the Legislative Instruments Act 2003 as they will not affect the rights of a person so as to disadvantage that person, or impose liabilities on person in respect of anything done or omitted to be done. The amendments clarify that other court fees, such as setting-down and hearing fee, are not payable in addition to the prescribed court application fee, and clarify that the relevant court application fees are not subject to a biennial increase and an annual increase. A setting-down fee and hearing fee has not been applied to the FW Act court applications prescribed in the Regulations since 1 July 2009.

Consultations regarding these legislative instruments were held with the Federal Court and the FMC. This level of consultation is appropriate and sufficient, as these amendments are of a minor or machinery nature only and do not substantially alter existing arrangements.

 

 

Authority: Subsection 60(1) of the

Federal Court of

Australia Act 1976

Subsection 120(1) of the

Federal Magistrates

Act 1999

ATTACHMENT

 

Details of the Federal Court of Australia Amendment Regulations 2009 (No. 2)

 

Regulation 1 – Name of Regulations

This regulation provides that the title of the Regulations is the Federal Court of Australia Amendment Regulations 2009 (No. 2).

Regulation 2 – Commencement

This regulation provides for the Regulations to commence on 1 July 2009.

Regulation 3 – Amendment of Federal Court of Australia Regulations 2004

This regulation provides that the Federal Court of Australia Regulations 2004 (the Federal Court Regulations) are amended as set out in Schedule 1.

Schedule 1 – Amendment

Item [1] – Regulation 8

Regulation 8 of the Federal Court Regulations will be amended by inserting a reference to item 3A of Schedule 1. Item 3A of Schedule 1 was inserted by the Federal Court of Australia Amendment Regulations 2009 (No.1) to reflect the new FW Act framework. The fee prescribed in column 2, item 3A of Schedule 1 is set by the Fair Work Regulations 2009 and is currently adjusted annually in accordance with an indexation factor based on the CPI. Item 3A of Schedule 1 does not need to be subject to the standard biennial adjustment. This amendment will ensure that an FW Act application, as described in item 3A of Schedule 1, is not subject to both the standard biennial adjustment and the annual adjustment.

Item [2] – Schedule 1, item 1, column 2, paragraph (a)

Schedule 1, item 1, column 2, paragraph (a) to the Federal Court Regulations will be amended by inserting a reference to item 3A of Schedule 1. This will ensure, like the other FW Act application prescribed in item 3 of Schedule 1, that the court application described in item 3A of Schedule 1 is not subject to the standard filing fee but a reduced filing fee of $59.50.

Item [3] – Schedule 1, note

The note in Schedule 1 to the Federal Court Regulations will be amended by inserting a reference to item 3A of Schedule 1. This amendment follows the amendment to be made to regulation 8 and further explains that an FW Act application, as described in item 3A of Schedule 1, is not subject to the standard biennial adjustment.

Item [4] – Schedule 3, paragraph 1 (2) (b)

Schedule 3, paragraph 1 (2) (b) to the Federal Court Regulations will be substituted with a new paragraph 1 (2) (b) and paragraph 1 (2) (ba). These new paragraphs will replace the redundant reference to the WR Act and refer to the applications under the FW Act referred to in items 3 and 3A of Schedule 1. This amendment will ensure that the prescribed FW Act applications, which attract a reduced fee of $59.50 from 1 July 2009, are not subject to any other court fees such as a setting-down or hearing fee. This continues the similar reduced court fee application arrangements which existed under the WR Act.

Item [5] – Schedule 3, paragraph 1 (2) (d)

Schedule 3, paragraph 1 (2) (d) will be omitted. It is no longer needed as the paragraph refers to fees related to proceedings under the WR Act which must have been commenced over 12 years ago. This paragraph is now redundant.

Item [6] – Schedule 3, paragraph 1 (2) (e)

Schedule 3, paragraph 1 (2) (e) will be renumbered as paragraph 1 (2) (d) because of the deletion of the previous paragraph 1 (2) (d) in these regulations.

 

Details of the Federal Magistrates Amendment Regulations 2009 (No. 2)

 

Regulation 1 – Name of Regulations

This regulation provides that the title of the Regulations is the Federal Magistrates Amendment Regulations 2009 (No. 2).

Regulation 2 – Commencement

This regulation provides for the Regulations to commence on 1 July 2009.

Regulation 3 – Amendment of Federal Magistrates Regulations 2000

This regulation provides that the Federal Magistrates Regulations 2000 (the Federal Magistrates Regulations) are amended as set out in Schedule 1.

Schedule 1 – Amendment

Item [1] – Paragraph 7 (2) (g)

Paragraph 7 (2) (g) of the Federal Magistrates Regulations will be substituted with a new paragraph 7 (2) (g) and paragraph 7 (2) (h). These new paragraphs will replace the redundant reference to the WR Act and refer to the applications under the FW Act referred to in items 12 and 13 of Schedule 1. This amendment will ensure that the prescribed FW Act applications, which attract a reduced fee of $59.50 from 1 July 2009, are not subject to any other court fees such as a setting-down or hearing fee. This continues the similar reduced court fee application arrangements which existed under the WR Act.

Item [2] – Regulation 14

Regulation 14 of the Federal Magistrates Regulations will be amended by inserting a reference to item 13 of Schedule 1. Item 13 of Schedule 1 was inserted by the Federal Magistrates Amendment Regulations 2009 (No.1) to reflect the new FW Act framework. The fee prescribed in column 2, item 13 of Schedule 1 is set by the Fair Work Regulations 2009 and is currently adjusted annually in accordance with an indexation factor based on the CPI. Item 13 of Schedule 1 does not need to be subject to the standard biennial adjustment. This amendment will ensure that an FW Act application, as described in item 13 of Schedule 1, is not subject to both the standard biennial adjustment and the annual adjustment.

 

Item [3] – Schedule 1, note

The note in Schedule 1 to the Federal Magistrates Regulations will be amended by inserting a reference to item 13 of Schedule 1. This amendment follows the amendment to be made to regulation 14 and further explains that an FW Act application, as described in item 13 of Schedule 1, is not subject to the standard biennial adjustment.