EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 316

 

FEDERAL MAGISTRATES COURT AMENDMENT RULES 2009 (NO. 3)

 

 

Issued by the authority of the Federal Magistrates of the Federal Magistrates Court of Australia.

 

 

Section 81 of the Federal Magistrates Act 1999 permits the Federal Magistrates or a majority of them, to make rules of Court not inconsistent with the Act. These rules may provide for the practice and procedure to be followed in the Court and may extend to all matters incidental to any such practice or procedure that are necessary or convenient to be prescribed for the conduct of any business of the Court.

 

Under sub-section 81(3) of the Federal Magistrates Act 1999 the Legislative Instruments Act 2003 (other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in relation to rules of court made by the Court under the Federal Magistrates Act 1999 or another Act:

 

(a) as if a reference to a legislative instrument were a reference to a rule of court; and

 

(b) as if a reference to a rule-maker were a reference to the Chief Federal Magistrate acting on behalf of the Federal Magistrates of the Court; and

 

(c) subject to such further modifications or adaptations as are provided for in regulations made under section 120 Federal Magistrates Act 1999.

 

The Federal Magistrates have agreed to adopt the Federal Magistrates Court Amendment Rules 2009 No. 3 (‘the Amendment Rules’).

 

The Amendment Rules include miscellaneous amendments to the Federal Magistrates Court Rules 2001 (‘the Rules’), including amendments to the subpoena rules to reduce the number of appearances with provision for the release of documents produced for inspection and copying without the need for a listing before a judicial officer, unless there is some objection.

 

The Amendment Rules have been the subject of consultation with the Law Council of Australia, the Federal Court and the Family Court.

 

Details of the Amendment Rules are in the Attachment.

 

The Amendment Rules commence on

(a) 30 November 2009- rules 1 to 3 and Schedule 1

(b) immediately after the commencement of Schedule 1 - Schedule 2

 

 

ATTACHMENT

 

Federal Magistrates Court Amendment Rules 2009 (No. 3)

 

1 – Name of Rules

 

Rule 1 provides that the Rules are to be cited as the Federal Magistrates Court Amendment Rules 2009 (No. 3).

 

Rule 2 – Commencement

 

Rule 2 provides that the Rules will commence on

(a) 30 November 2009- rules 1 to 3 and Schedule 1

(b) immediately after the commencement of Schedule 1 - Schedule 2

 

Rule 3 – Amendment to the Federal Magistrates Court Rules 2001

 

Rule 3 provides that the Rules are amended as set out in Schedules 1 and 2

 

SCHEDULE 1

 

[1] Rules 15.21 and 15.22

 

The amendment omits subpoena rules 15.21 (production by person not a party) and 15.22 (order for inspection) as Schedule 2 amendments include new rules in relation to the release of subpoenaed documents produced for inspection and copying without the need for a listing before a judicial officer, unless there is some objection.

 

[2] Renumbering and relocation

 

A number of rules have been renumbered and relocated in light of new subpoena rules

 

 

SCHEDULE 2

 

[1] Subrule 2.07(1)

The amendment removes the mandatory requirement for the approval by an authorised Registrar of at least 1 fax number for each Registry to receive documents.

 

[2] After Part 15A, heading

 

The amendment inserts a new Division 15A.1 General in Part 15A.

 

[3] Rule 15A.01, heading

[4] Rule 15A.01

 

These machinery drafting amendments are as a consequence of the new Division 15.A.1

 

[5] Rule 15A.01, before definition of issuing party

 

The amendment inserts definitions for child welfare records, criminal records and interested persons in Rule 15A.01 before the definition of issuing party

 

[6] Rule 15A.01, after definition of issuing party

 

The amendment inserts a definition of medical record in Rule 15A.01 after the definition of issuing party

 

[7] Rule 15A.01, after definition of person subpoenaed

 

The amendment inserts a definition of police record in Rule 15A.01 after the definition of person subpoenaed

 

[8] Subrule 15A.02(4)

 

The amendment omits from the subrule thing and replaces it with thing and time and place for production

 

[9] After rule 15A.02

 

New Rule 15A.03 precludes the court from issuing a subpoena which requires the production of a document or thing in the possession of the Court or another Court. Subrules 15A.03(2)- (4) set out the process to be adopted by a party who seeks production of a document or thing in the possession of another court.

 

 

[10] Subrule 15A.04(3), including the note

 

New subrule 15A.04(3) provides that unless the Court directs otherwise, a subpoena requiring attendance must be served at least 7 days before attendance is required, and a subpoena requiring production must be served at least 10 days before production is required..

 

[11] Subrule 15A.05(1)

 

The amendment inserts a specific reference to an independent children's lawyer to clarify that the requirement for leave before requesting more than 5 subpoenas in a proceeding, applies to an independent children’s lawyer.

 

[12] Subrule 15A.06(2)

 

The amendment introduces a requirement for the issuing party to serve by ordinary service a copy of the subpoena on each other party any independent children's lawyer and also on any interested person (which term is now included in the definitions for Part 15A. The copy subpoena must be served within a reasonable time before attendance or production of the subpoena is required.

 

[13] Rule 15A.10

 

This is a machinery drafting amendment following the renumbering of the rules.

 

[14] After rule 15A.11

 

A new Division15A.2 - Production of documents and access by parties- is introduced to facilitate the release of documents otherwise than by order.

 

These amendments are aimed at reducing the number of court appearances with provision for the release of document produced for inspection and copying without the need for a listing before a judicial officer, unless there is some objection.

 

Automatic release, inspection and copying of subpoenaed documents, is contingent upon there being no objection(s). There is provision for a person subpoenaed, another party or an interested person to object. Objections will be listed before the judicial officer.

 

Child welfare, criminal, medical or police records are precluded from automatic copying if there is no objection but will be available for inspection. However, in relation to child welfare records the rule is not intended to override any restrictions from protocols in force between the relevant welfare department and the court(s).

 

 

 

Inspection of document produced before objection is only permissible in respect of a person whose medical records are subpoenaed. That person must notify the registrar before the date for production that he/she wishes to inspect the records. The person only, may inspect the document within 7 days after the date specified for production. The purpose of the inspection is to ensure that no other party may inspect such documents until the person whose medical records are subpoenaed has had the opportunity to inspect.

 

If no objection is notified or the objection is disallowed by the Court, and the requirements set out in rule 15A.13 have been met, each party and any independent children’s lawyer may, by appointment, inspect and, except in respect of child welfare, criminal, police or medical records, take copies of the document produced in compliance with the subpoena.

 

[15] After rule 15A.16

 

A new Division has been has been inserted for the rules in relation to Notices to produce.