EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 358

Issued by the Authority of the Attorney-General

 

Federal Court of Australia Act 1976

Federal Court of Australia Amendment Regulations 2009 (No. 3)

The Federal Court of Australia Act 1976 (the Act) establishes the Federal Court of Australia (the Federal Court) as a federal court under Chapter III of the Constitution.

 

Subsection 60(1) of the Act provides, in part, that the Governor-General may make regulations prescribing matters that are required or permitted by the Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The purpose of the Regulations is to provide a clear basis for the payment of remuneration and allowances to jurors and potential jurors in matters before the Federal Court.

 

The Regulations are intended to support the new indictable criminal jurisdiction to deal with serious cartel offences under the Trade Practices Act 1974. If the Court exercises that jurisdiction it will need to convene a jury. Section 80 of the Constitution requires that the trial on indictment of any offence against the Commonwealth law must be by jury. The Act has been amended by the Federal Court of Australia Amendment (Criminal Jurisdiction) Act 2009 to give the Court the procedural rules needed to run jury trials in criminal matters.

 

It is appropriate that a person who is summonsed fur jury duty or empanelled on a jury should be paid reasonable remuneration and allowances. All state and territory (state) criminal courts pay remuneration and allowances to jurors, although the rates of payment vary across the jurisdictions.

 

The Federal Court has had power since 1976 to convene juries in civil cases, but that power has never been exercised. If the power had been exercised, the jurors and potential jurors would have had rights and entitlements that applied under local state law as picked up under section 68 of the Judiciary Act 1903. The state laws were drafted to meet the needs of the state courts and it is not clear how easily they would have applied to a Federal Court juror. That issue has never been tested.

 

The Regulations would apply to both criminal and civil juries and would ensure that the rates of payments are clear, and that jurors and potential jurors have the same rights and entitlements irrespective of where the Federal Court is sitting.

 

Details of the Regulations are set out in the Attachment.

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

 

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

 

The Regulations would commence on the day after they are registered on the Federal Register of Legislative Instruments.

 

Consultations regarding these legislative instruments were held with the Federal Court. 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

 

ATTACHMENT

 

Details of the Federal Court of Australia Amendment Regulations 2009 (No. 3)

Regulation 1 – Name of Regulations

This regulation provides that the title of the Regulations is the Federal Court of Australia Amendment Regulations 2009 (No. 3).

Regulation 2 – Commencement

This regulation provides for the Regulations to commence on the day after they are registered.

Regulation 3 – Amendment of Federal Court of Australia Regulations 2004

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

Schedule 1 – Amendments

Item [1] Regulation 3, note

This item would amend the note at the end of regulation 3 of the Federal Court Regulations to note that the terms “juror” and “potential juror” are defined in section 4 of the Federal Court of Australia Act 1976. Those terms are used in the Regulations but are not separately defined.

Item [2] After Part 2

This item would add a new Part 2A to the Federal Court Regulations dealing with remuneration and allowances for jurors and potential jurors.

Regulation 15A would provide that the remuneration payable to jurors and potential jurors is set out in Schedule 4.

Remuneration would be payable for each day that a juror or potential juror attends court and for each day, up to a maximum of five days, that a juror or potential jurors is not required to attend court. That means that a person who organises their affairs on the assumption that they are required to attend court would be entitled to remuneration even if they are directed not to attend.

Subject to proposed regulation 15C, there would be a single payment of remuneration, with no additional amount to cover travel and refreshment allowances. The rate of remuneration has been set high enough to cover normal travel and refreshment costs.

Regulation 15B would provide that on each biennial anniversary of 1 July 2008 the remuneration set out in Schedule 4 increases in accordance with Schedule 5. The result would be that the rates of remuneration would be automatically updated every two years to keep pace with inflation. A similar mechanism already exists in the Federal Court Regulations to automatically update the Schedule of court fees payable under the Federal Court Regulations. The date of 1 July 2008 has been chosen so that the Schedule of jury allowances would be updated at the same time as the Schedule of court fees is updated.

Proposed regulation 15C would apply if a juror or potential juror is required to travel more than 30 kilometres to attend court, judged by the shortest practical route from his or her usual place of residence to the Court. The juror or potential juror would be able to apply to the Sheriff for reimbursement of reasonable travel costs. This would reflect that some jurors or potential jurors may incur more travel costs than others and would provide a means for ensuring that all jurors and potential jurors are treated fairly.

The Sheriff would have power to determine when a claim for reimbursement of travel costs may be submitted, the form in which it must be submitted and the supporting material that must be provided. However if the Sheriff does not make a determination, the regulation would provide that a claim for reimbursement of travel costs can be submitted within five days of the juror or potential juror incurring the relevant travel costs.

Item 3 After Schedule 3

This item would add new Schedules 4 and 5 to the Federal Court Regulations.

Schedule 4 would set out the rates or remuneration and allowances payable to jurors and potential jurors.

·        Item 1 would apply on the fist day of the trial. A juror or potential juror who attends on the first day of a trial would be entitled to half the starting daily rate if they attend for up to four hours and the full daily starting rate if they attend for more than four hours.

·        Item 2 would set the starting daily rate, which will be $90.

·        Item 3 would apply if a trial runs for more than five days. The daily rate would increase to $100.

·        Item 4 would apply if a trial runs for more than 10 days. The daily rate would increase to $110.

·        Item 5 would apply if a trial runs for more than eight hours (not counting adjournments for meals). Jurors would be entitled to an extra payment of half the daily rate if the additional period is up to four hours and the full daily rate if the additional period is over four hours.

Schedule 5 would set out the formula for the biennial increase to the rates set out in Schedule 4.

The rates in Schedule 4 would be increased automatically, on a biennial basis starting from 1 July 2008, if there has been in increase in the consumer price index (CPI) during the two-year period. The benchmarks will be the CPI number for the last March quarter of the two-year that has just ended (the “latest CPI number”) compared with the CPI number for the last Match quarter before the end of the previous two-year period (the “earlier CPI number”).

·        Item 1 would define the following terms used in Schedule 5: CPI number, March quarter, relevant period and remuneration.

·        Item 2 would set out the formula for calculating the biennial increase. The formula involves multiplying the current rate of remuneration by the latest CPI number and dividing that figure by the earlier CPI number.

·        Item 3 would require that a figure be rounded to the nearest whole dollar if the application of the formula under Item 2 produces an amount of dollars and cents. If the amount to be rounded is 50 cents, the figure would be rounded down.

·        Item 4 would apply if the Australian Statistician publishes an amended CPI number for any relevant March quarter. The amended figure would be disregarded for the purpose of Schedule 5.

·        Item 5 would apply if the Australia Statistician changes the reference base for the CPI. For the purpose of Schedule 5, regard may be had only to CPI numbers published in terms of the new reference base.