FEDERAL MAGISTRATES COURT AMENDMENT RULES 2011 (NO. 1) (SLI NO 133 OF 2011) EXPLANATORY STATEMENT

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FEDERAL MAGISTRATES COURT AMENDMENT RULES 2011 (NO. 1) (SLI NO 133 OF 2011)

Federal Magistrates Court Amendment Rules 2011 (No. 1)

EXPLANATORY STATEMENT

Select Legislative Instrument 2011 No. 133

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 2011 (No. 1) ('the Amendment Rules').

The Amendment Rules include a number of miscellaneous amendments to the Federal Magistrates Court Rules 2001 ('the Rules'), the most significant of which include:-

Ø new requirement for documents filed to be printed with at least 12 point font and have not less than 8 mm between the lines of printing

Ø provision for amendment to the dispute resolution and industrial law rules to facilitate referrals in respect of industrial law matters to a FWA member;

Ø a new rule requiring parties to advise the Court when filing consent parenting orders, of allegations of abuse, family violence or other risk factors;

Ø a new dormant proceedings rule providing that if a party has not taken a step in a proceeding for 6 months, the Court may, on its own initiative, order that the proceedings, or a part of the proceeding, be dismissed;

Ø an amendment to the rules in relation to subpoenas to provide that unless the subpoena specifically requires the production of the original document or thing, a copy may be produced. The rule will also provide that a copy of the document or thing may be a photocopy or in PDF or in 'any other electronic form that the issuing party has indicated is acceptable';

Ø provision for orders to be signed by electronic means;

Ø amendment to the delegation powers to facilitate delegation of certain powers under the Fair Work Act 2009 and the National Credit Code. In addition, certain enforcement powers as set out in the Rules will be included in the list of powers that can be delegated to Registrars;

Ø an amendment to the family law/ child support enforcement rules to repeal the application of the Order 33 and adopt mirror enforcement rules (and forms) as currently prescribed under the Family Law Rules (Chapter 20);

Ø the enforcement rules in relation to general federal law proceedings as prescribed by the Federal Court will be relocated (with certain necessary modifications) into the body of the Rules rather than, as currently, prescribed by way of Schedule 3 Part 2 incorporation;

Ø new rules in relation to legal representation in small claims proceedings to better reflect the statutory provisions (FWA and consumer law).

Ø The introduction of a new Chapter 8 for Proceedings under the National Consumer Credit Protection Act by way of a new Part 46 which includes rules for small claims applications under this Act.

Ø Amendments to Schedule 1 - costs - to increase the amounts fixed such increases are consistent with recommendations of the Joint Costs Advisory Committee.

The amendments also introduce new rules in relation to the genuine steps requirement for certain types of proceedings as required under the Civil Dispute Resolution Act 2011. These new rules mirror those proposed by the Federal Court and are scheduled to commence on commencement of the Civil Dispute Resolution Act 2011

The Amendment Rules have been the subject of consultation with the Federal Court of Australia, the Family Court of Australia, Fair Work Australia, the Child Support Agency, the Law Council of Australia and the Family Law Section of the Law Council of Australia.

Details of the Amendment Rules are in the Attachment.

The Amendment Rules commence on 11 July except for the amendments contained in Schedule 3 which commence on the commencement of Part 2 of the Civil Dispute Resolution Act 2011

ATTACHMENT

Federal Magistrates Court Amendment Rules 2011 (No. 1)

1 Name of Rules

Rule 1 provides that the Rules are to be cited as the Federal Magistrates Court Amendment Rules 2011 (No. 1).

2 Commencement

Rule 2 provides commencement of the Rules as follows:

(a) on 11 July 2011 -- rules 1 to 3 and Schedule 1;

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

3 Amendment of Federal Magistrates Court Rules 2001

Rule 3 provides that the amendments set out in Schedules 1 to 3 amend the Federal Magistrates Court Rules 2001.

Schedule 1 Amendment commencing on 30 May 2011

[1] Rules 25B.06 to 25B.14

These are consequential renumbering amendments.

Schedule 2 Amendments commencing immediately after

commencement of Schedule 1

[1] Rule 1.05, outline

The amendment removes reference to the Human Rights and Equal Opportunity Commission Act 1986 and replaces it with a reference to the Australian Human Rights Commission Act 1986 consistent with legislative amendments to the name of the Act.

[2] Subparagraph 2.01 (f) (i)

The amendment provides for documents filed to be printed with not less than 12 point font (previously the requirement was at least 10 point font).

[3] Subparagraph 2.01 (f) (ii)

[4] After paragraph 2.01 (f)

The amendment inserts a new paragraph (g) which requires documents filed to have not less than 8 mm between the lines of printing.

[5] Subrule 2.03 (2)

[6] Paragraph 2.05 (1) (c)

[7] Subrule 2.05 (3), note

These amendments are minor drafting amendments to better reflect current processes

[8] Rule 2.06

The rule has been amended to remove reference to a review of the Registrar's decision pursuant to the Rules as there is caselaw to indicate the power being exercised is administrative in nature and not reviewable in accordance with Division 20.2.

[9] Subrule 2.07A (1)and (2)

[10] Subrule 2.07B (1)

[11] Paragraph 2.07B (1) (d)

[12] Subrules 2.07B (2)to(4)

These amendments better reflect current processes in relation to filing by electronic communication.

[13] Subrules 2.08 (1) and (2)

[14] Subrule 2.08 (3)

[15] Paragraph 2.08 (3) (d)

[16] Subrule 2.08 (5), definition of court document

These amendments mirror amendments to the comparable rule prescribed in the Family Law Rules 2004

(r 24.13), to ensure consistency between the courts in the rules relating to searching records in family law/ child support proceedings.

[17] Paragraph 4.05 (2) (c)

[18] After paragraph 4.05 (2) (c)

The amendments add a new paragraph (c) to provide that a supporting affidavit is not required if a small claims application under the National Consumer Credit Protection Act is filed.

[19] Rule 10.04, notes 1 to 4

These amendments to the notes to Rule 10.04 are intended to reflect the relevant statutory powers.

[20] Subrules 10.05 (1) and (2)

The amendment to the subrules are intended to reflect the legislative powers.

[21] Rule 11.12

The Rule is amended to include a definition for the term ' manager of the affairs of a party' which term is referred to in amendments to the rules in relation to litigation guardian consistent with the terminology as used in R 6.08A Family Law Rules 2004.

[22] After rule 13.04

A new rule 13.04A is prescribed in relation to the making of consent orders in parenting matters. The purpose of the Rule is to ensure that issues which might pose a risk to the child or children are brought to the attention of the Court. The Court will determine whether the proposed arrangements are appropriate in all the circumstances and do not expose the child to an unacceptable risk of harm.

[23] After rule 13.11

New Rule 13.12 - dormant proceedings - provides that if a party has not taken steps in a proceeding for six months, the Court may, on its own initiative, order that the proceedings, or a part of the proceedings, be dismissed.

[24] Rule 15A.15

This amendment provides that unless the subpoena specifically requires the production of the original document or thing a copy may be produced. The amendment also provides that a copy of the document or thing produced may be a photocopy or in PDF or in ' any other electronic form that the issuing party has indicated is acceptable'.

[25] After subrule 16.08 (1)

The amendment makes provision for orders to be signed by electronic means.

[26] Rule 20.00A

This amendment is a minor consequential drafting amendment

[27] Rule 20.00A, table, after item 2

The amendment inserts certain powers under the Fair Work Act 2009 to the table of delegated powers for the purposes of subsection 103(1) of the Federal Magistrates Act 1999.

[28] Rule 20.00A, table, after item 30

The amendment inserts certain enforcement rules prescribed under the Federal Magistrates Court Rules 2001 to the table of delegated powers for the purposes of subsection 103(1) of the Federal Magistrates Act 1999.

The amendment also inserts certain powers under the National Consumer Credit Protection Act 2009 and the National Credit Code to the table of delegated powers for the purposes of subsection 103(1) of the Federal Magistrates Act 1999.

[29] Rule 20.00A, note

The amendment to the note limits the scope of certain Fair Work Act delegated powers mentioned in items 2A and 2D of the table.

[30] Subrule 20.01 (1)

The amendment is a minor drafting amendment.

[31] Division 25B.2

The amendments to Division 25B.2 introduce new enforcement rules for financial orders and obligations in family law and child support proceedings. These rules mirror (with necessary modifications) the Chapter 20 enforcement rules prescribed under the Family Law Rules 2004. They replace the Order 33 enforcement rules previously prescribed by way of Schedule 5.

[32] Subrule 25B.74 (2)

The amendment removes the requirement of a sealed copy to be provided to an enforcement officer consistent with current practice.

[33] After subrule 27.01 (1)

The amendment excludes the general dispute resolution rules contained in Part 27 from applying to mediation under rule 45.13B as new rule 45.13B includes specific rules in relation to mediation for Fair Work proceedings.

[34] After Part 28

The amendment introduces a new Part 29, being enforcement rules for proceedings other than family law or child support proceedings. These rules mirror (with necessary modifications) the rules prescribed by way of Order 37 of the Federal Court Rules. Prior to this amendment Order 37 was prescribed by way of Schedule 3 Part 2 of the Rules and the amendment merely re-locates and sets out in a modified form the rules prescribed by way of Order in the body of the Rules rather than by way of incorporation in a Schedule. It is considered preferable to set out the enforcement rules of the Court in the body of the Rules rather than be incorporated by the Schedule.

[35] Subrule 41.02 (1)

The amendment deletes references to the Human Rights and Equal Opportunity Commission by replacing it with the new name of the Commission - the Australian Human Rights Commission.

[36] Subrule 41.02 (2), note

The amendment removes the term' Special Purpose Commissioner' from the notes as the term is now included in the interpretation section.

[37] Rule 45.10, heading

The amendment is a consequential amendment to the heading.

[38] Subrule 45.11 (2)

This is a minor drafting amendment to the rule in relation to small claims proceedings under the Fair Work Act to better reflect the statutory power.

[39] Rule 45.13, heading

The amendment is an amendment to the heading.

[40] Subrule 45.13 (2)

The amendment recasts the rule to better identify when a party to small claims proceedings may be represented by a lawyer consistent with subsections 548 (5) to (7) of the Fair Work Act.

[41] After rule 45.13

The amendment introduces a new rule 45.13A in relation to representation for corporations under the Fair Work Act in small claims proceedings consistent with the relevant provisions of the Fair Work Act.

[42] Before Division 45.5

The amendment introduces a new Division 45.4A - Dispute Resolution Fair Work Act proceedings - which includes provision for mediation by a FWA Member nominated by the President of Fair Work Australia.

[43] After Part 45

The amendment introduces a new Chapter 8 for Proceedings under the National Consumer Credit Protection Act which includes a new Part 46 which prescribes rules for small claims applications under this Act.

[44] Schedule 1, Part 1

The amendments increase the amount of party-party costs fixed in Schedule 1 for family law and general federal law proceedings consistent with recommendations of the Joint Costs Advisory Committee.

[45] Schedule 1, Part 2, paragraph 1 (a)

[46] Schedule 1, Part 2, paragraph 1 (b)

[47] Schedule 1, Part 2, paragraph 1 (c)

[48] Schedule 1, Part 2, paragraph 2 (a)

[49] Schedule 1, Part 2, paragraph 2 (b)

[50] Schedule 1, Part 2, paragraph 2 (c)

[51] Schedule 1, Part 2, paragraph 2 (d)

The amendments increase the amount of party-party costs fixed in Schedule 1 for migration proceedings consistent with recommendations of the Joint Costs Advisory Committee.

[52] Schedule 3, Part 2

This amendment includes the incorporation of Orders 11 and 12 of the Federal Court Rules in instances when pleadings are ordered.

[53] Schedule 3, Part 2

The amendment deletes the application of Order 37 as a consequence of the new Part 29 which sets out mirror rules to those prescribed under Order 37 of the Federal Court Rules.

[54] Schedule 5

Schedule 5 is deleted as a consequence of the amendments to new Division 25B.2 which adopts, with necessary modifications, in family law and child support proceedings, the Chapter 20 enforcement rules prescribed under the Family Law Rules 2004. These rules replace the Order 33 enforcement rules previously prescribed by way of Schedule 5.

[55] Dictionary, after definition of enter

A new definition has been included in the dictionary for Fair Work Australia which has the meaning given by section 12 of the Fair Work Act 2009.

[56] Dictionary, definition of Human Rights Act

A new definition has been included in the dictionary for Human Rights Act which reflects the new name of the Act - the Australian Human Rights Commission Act 1986.

[57] Dictionary, after definition of minor

A new definition has been included in the dictionary for parenting order which has the meaning given by subsection 64B (1) of the Family Law Act.

Schedule 3 Amendments commencing on commencement of Part 2 of Civil Dispute Resolution Act2011

[1] Part 4, heading

This is a consequential amendment to the heading.

[2] After rule 4.08

The amendment includes new Division 4.2 for proceedings if the Civil Dispute Resolution Act applies and prescribed rules for Applicants and Respondents to file a which a genuine steps statement for certain types of proceedings as required under the Civil Dispute Resolution Act 2011. These new rules mirror those proposed by the Federal Court in the Federal Court Rules and are scheduled to commence on commencement of the Civil Dispute Resolution Act 2011

[3] Dictionary, after definition of Child Support Registrar

A new definition has been included in the dictionary for Civil Dispute Resolution Act which means the Civil Dispute Resolution Act 2011.

[4] Dictionary, after definition of discovery

A new definition has been included in the dictionary for dispute resolution process which has the meaning given by section 21 of the Act.

[5] Dictionary, after definition of general federal law proceedings

A new definition has been included in the dictionary for genuine steps statement which has the meaning given by section 5 of the Civil Dispute Resolution Act.

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