EXPLANATORY STATEMENT

Select Legislative Instrument 2009 No. 167

Issued by the Authority of the Attorney-General

 

Federal Magistrates Act 1999

Federal Magistrates Amendment Regulations 2010 (No. 1)

 

The Federal Magistrates Act 1999 (the Act) establishes the Federal Magistrates Court (the Court) as a federal court under Chapter III of the Constitution.

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

The Federal Magistrates Regulations 2000 (the Principal Regulations) prescribe certain fees in relation to court proceedings and make provisions in relation to the payment of those fees.

The purpose of the Regulations is to introduce a hearing fee for each day of hearing, other than the first day of hearing. The fees listed in Schedule 1 of the Principal Regulations will also increase. 

These changes are part of a suite of measures the government is implementing as part of its access to justice framework in the 2010-11 budget.  The framework is based on principles of accessibility, appropriateness, equity, efficiency and effectiveness.  The access to justice measures in the 2010-11 budget are focussed on directing people away from high-cost litigation to early intervention services, which help people resolve disputes before they escalate to larger problems.

The Regulations also incorporate biennial increases in fees as required by Regulation 8 of the Principal Regulations. The increases are calculated in accordance with the formula specified in Schedule 2 of the Principal Regulations. Regulation 8 of the Principal Regulations requires the increases to take place on each biennial anniversary of 1 July 1996. The next increase is to take place on 1 July 2010.

The fee amounts listed in the Principal Regulations are not up-to-date, due to the effect of past biennial increases that have not been recorded in the Principal Regulations. The fee amounts listed in the Commonwealth Government Notices Gazette, No. GN 21, 28 May 2008 are the actual fees in force until 1 July 2010. The fee increases have therefore been applied to the gazetted fee amounts, rather than the fee amounts in the Principal Regulations.

The Fair Work Act 2009 implements small claims procedures in the Federal Magistrates Court for various matters up to a value of $20,000. On 1 January 2010 the small claims procedures came into full operation. The procedures are available for some transitional matters under the Workplace Relations Act and also for claims for a breach of the National Employment Standards, a term of a Modern Award, an enterprise agreement, a workplace determination, a national minimum wage order, an equal remuneration order or a safety net contractual entitlement. Currently, the ordinary filing fee applies for these applications ($745 for corporations and $374 for non-corporations). This fee is considerably higher than the fees applicable in State and Territory courts. To facilitate access to the Federal Magistrates Court to resolve small claims matters, the amendments will implement a reduced application fee of $150 for claims of less than $10 000 and $250 for claims between $10 000 and $20 000.

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 proposed Regulations may be exercised.

 

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

 

The Regulations commence on 1 July 2010.

 

The Federal Magistrates Court has been consulted in relation to these amendments.

 

 

 

 

Authority: Subsection 120(1) of the Federal Magistrates Act 1999

 

ATTACHMENT

 

Details of the proposed Federal Magistrates Amendment Regulations 2010 (No. 1)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Federal Magistrates Amendment Regulations 2010 (No. 1).

 

Regulation 2 – Commencement

 

This regulation provides that the Regulations will commence on 1 July 2010.

 

Regulation 3 – Amendment of Federal Magistrates Regulations 2000

 

This regulation provides for the amendment of the Federal Magistrates Regulations 2000 (the Principal Regulations) as set out in Schedule 1.

 

Schedule 1 – Amendments

 

Item [1] – Regulation 3, definition of enforcement fee

 

This item will make regulation 3 consistent with the numbering changes made to Schedule 1 to the Regulations by item [16] below.

 

Item [2] – Regulation 3, after definition of financial matter

 

This item will make regulation 3 consistent with the numbering changes made to Schedule 1 to the Regulations by item [16] below.

 

Item [3] – Regulation 3, definition of mediation fee

 

This item will make regulation 3 consistent with the numbering changes made to Schedule 1 to the Principal Regulations by item [16] below.

 

Item [4] – Regulation 3, definition of setting-down fee

 

This item will make regulation 3 consistent with the numbering changes made to Schedule 1 to the Principal Regulations by item [16] below.

 

Item [5] – After subregulation 5(2)

 

This item will provide a time for payment of the proposed new hearing fee, which would be introduced by item [16] below. Payment should occur at the time that the document is filed, where the hearing is set down for a day earlier than 2 working days after the document initiating the proceeding is filed. Alternatively, if the hearing day is two or more working days after the document initiating the proceeding is filed, payment should occur not later than two working days before the next hearing day. Alternatively, if the hearing day is the next working day after an earlier scheduled hearing day, payment should occur no later than 9.30 am on the later hearing day. This item will provide that the time for payment of hearing fees will be consistent with the time for payment of hearing fees in the Federal Court of Australia Regulations 2004 (the Federal Court Regulations).

Item [6] – After subregulation 5(4), including the note

 

This item will insert new subregulation 5(5) to provide a definition of ‘working day’ specifying when payment of a hearing fee should occur. A ‘working day’ should refer to a day that is not a Saturday or a Sunday or a public holiday in the place where the hearing is to take place. This item will provide that the definition of ‘working day’ will be consistent with the definition of ‘working day’ in the Federal Court Regulations.

 

Item [7] – Paragraph 7(2)(g)

 

This item will make paragraph 7(2)(g) consistent with the numbering changes made to Schedule 1 to the Principal Regulations by item [16] below.

 

Item [8] Paragraph 7(2)(h)

 

This item will make paragraph 7(2)(h) consistent with the numbering changes made to Schedule 1 to the Principal Regulations by item [16] below.

 

Item [9] After regulation 8B

 

This item will insert new Regulation 8C to set out circumstances where the proposed hearing fees that would be implemented by item 16, would not be payable. Hearing fees would not be payable where a matter is remitted by the High Court, in the exercise of its inherent jurisdiction, for re-hearing by the Federal Court under section 44 of the Judiciary Act 1903 (the Judiciary Act), then transferred to the Federal Magistrates Court under section 32AB of the Federal Court of Australia Act 1976. Hearing fees would also not be payable where a matter is remitted by the High Court, in the exercise of its appellate jurisdiction, for rehearing by the Federal Magistrates Court under section 44 of the Judiciary Act. Ensuring hearing fees are not payable in these circumstances would be consistent with regulation 8B of the Principal Regulations, which provides that setting down fees are not payable in these circumstances.

 

Item [10] Subregulation 11(2)

 

This item will insert a reference to ‘hearing fee’ in subregulation 11(2) to correspond with the new hearing fee that will be implemented by item [16] below.

 

Item [11] Subregulation 11(2), note

 

This item will provide a note to provide a guidance reference to refer to subregulation 5(2A) to determine when a hearing fee will be payable.

 

Item [12] Subregulation 12(1)

 

This item will insert a reference to ‘hearing fee’ in subregulation 12(1) to correspond with the new hearing fee that will be implemented by item [16] below.

 

Item [13] Subregulation 12(2)

 

This item will insert a reference to ‘hearing fee’ in subregulation 12(2) to correspond with the new hearing fee that will be implemented by item [16] below.

 

Item [14] – Regulation 14

 

This item will make regulation 14 consistent with the numbering changes made to Schedule 1 to the Regulations by item [16] below. In addition, new regulation 14 will exempt new items 7 and 20 of Schedule 1 to the proposed Regulations from a biennial fee increase until 1 July 2012. This is because it would not be consistent with current practice to make the biennial increase apply to fees that do not exist prior to the day of the increase.

 

Item [15] Subregulation 15(1), definition of fee

 

This item will make regulation 15 consistent with the numbering changes made to Schedule 1 to the proposed Regulations at Item [16] below.

 

This item will also clarify that the biennial increases in fees are not to apply in relation to items 18 and 19 of Schedule 1 to the proposed Regulations, within item [16] of the proposed Regulations. This will make the items listed in subregulation 15(1) consistent with the items listed in regulation 14.

 

Item [16] Schedule 1, table

 

This item will implement the new hearing fees for days other than the first day of hearing. This item will also increase the fees listed in Schedule 1 of the Principal Regulations. These changes are part of a suite of measures the government is implementing as part of its access to justice framework in the 2010-11 Budget.  The framework is based on principles of accessibility, appropriateness, equity, efficiency and effectiveness.  The access to justice measures in the 2010-11 Budget are focussed on directing people away from high-cost litigation to early intervention services, which help people resolve disputes before they escalate to larger problems.

This item will also implement the biennial increase in fees. This item will also implement the new fees for Fair Work small claims matters. This item will also renumber items referred to in the second column of the table to be consistent with the changes to the item numbers in the first column of the table.