Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act relating to Federal Magistrates, and for other purposes
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Introduced HR 24 Jun 1999

Federal Magistrates Bill 1999

1999

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

FEDERAL MAGISTRATES BILL 1999

EXPLANATORY MEMORANDUM

(Circulated by the authority of the Attorney-General,
the Honourable Daryl Williams AM QC MP)

ISBN: 0642 404720

TABLE OF CONTENTS

Page

GENERAL OUTLINE 1

FINANCIAL IMPACT STATEMENT 5

NOTES ON CLAUSES 6

PART 1-Introduction 6

PART 2-Federal Magistrates Court 7

PART 3-Jurisdiction of the Federal Magistrates Court 7

PART 4-Primary dispute resolution 10

Division 1-General 11

Division 2-Proceedings other than family law or child support proceedings 13

PART 5-Transfer of proceedings to the Federal Court or the Family Court 14

PART 6-Practice and procedure 15

Division 1-General 16

Division 2-Documents filed with the Federal Magistrates Court 17

Division 3-Conduct of proceedings 18

Division 4-Evidence 19

Division 5-Use of video links or audio links 21

Division 6-Orders and Judgments 24

Division 7-Costs 25

Division 8-Rules of Court 26

PART 7-Management of the Federal Magistrates Court 27

Division 1-Administration of the Federal Magistrates Court 27

Division 2-Chief Executive Officer 28

Division 3-Registries 29

Division 4-Other officers and staff 29

Division 5-Miscellaneous administrative matters 32

PART 8-Miscellaneous 33

Schedule 1-Personnel provisions relating to Federal Magistrates 33

Schedule 2-Personnel provisions relating to the Chief Executive Officer
of the Federal Magistrates Court 35

FEDERAL MAGISTRATES BILL 1999 GENERAL OUTLINE The Federal Magistrates Bill will establish the Federal Magistrates Court, also to be known as the Federal Magistrates Service, as a court under Chapter III of the Constitution.

The Federal Magistrates Court will be composed of Federal Magistrates, who will be justices, as required under the Constitution. Federal Magistrates will be selected for their expertise in federal matters, including family law. The jurisdiction to be exercised by the Federal Magistrates Service will generally be matters of a less complex nature that are currently dealt with by the Federal Court and the Family Court. It is intended to provide a quicker, cheaper option for litigants and to ease the workload of both the Federal Court and the Family Court.

The Federal Magistrates Service will be as informal as possible consistent with the discharge of judicial functions. It will be up to the Federal Magistrates Service itself to make its own Rules, which will largely determine issues of practice and procedure. However, the Bill includes provisions designed to assist the Federal Magistrates Service to develop procedures that are as simple and efficient as possible, aimed at reducing delay and costs to litigants. Some examples of these are:

* the Court will have the power to set time limits for witnesses and to limit the length of both written and oral submissions;

* discovery and interrogatories will be permitted only if the Court considers that they are appropriate in the interests of the administration of justice;

* if the parties consent, the Court can make a decision without an oral hearing;

* there will be more emphasis on delivering decisions orally in appropriate cases, rather than parties having to wait for reserved judgments; and

* there will be the power to make Rules to allow Federal Magistrates to give reasons in shortened form in appropriate cases.

The Federal Magistrates Service will complement the Government's initiatives aimed at encouraging people to resolve family law disputes through primary dispute resolution, rather than through litigation.

The Federal Magistrates Service will place emphasis on using a range of means to resolve disputes. There will be no automatic assumption that every matter will end in a contested hearing, and the use of conciliation, counselling and mediation will be strongly encouraged in appropriate cases. Parties will be encouraged to take responsibility for resolving their dispute themselves, where this is practical. This is more likely to result in more a enduring resolution of a dispute because the parties are more likely to accept agreed outcomes.

The National Alternative Dispute Resolution Advisory Committee[1] has provided advice on use of alternative dispute resolution in the Federal Magistrates Service. Its recommendations have been taken into account in the drafting of the Bill.

The Federal Magistrates Service will be able to use the existing counselling and mediation services of the Family Court and will also encourage the use of community-based counselling and mediation services, to provide as wide as possible a choice for clients.

The Federal Magistrates Service will be given jurisdiction by the amendments made to various Acts in the Federal Magistrates (Consequential Amendments) Bill. In matters currently dealt with by the Federal Court, the Federal Magistrates Service will have jurisdiction to hear:

* applications under the Administrative Decisions (Judicial Review) Act 1977;

* appeals from the Administrative Appeals Tribunal which are transferred by the Federal Court to the Federal Magistrates Service;

* matters arising under the Bankruptcy Act 1966;

* when the Human Rights Amendment Bill 1998 (No 1) is passed by Parliament, applications under the Human Rights and Equal Opportunity Commission Act 1986;

* matters arising under Divisions 1 and 1A of Part V of the Trade Practices Act 1974, being the consumer protection provisions; and

* matters under s127 and Part XA of the Workplace Relations Act 1996;

The main areas of family law in which the Federal Magistrates Service will have jurisdiction are:

* applications for nullity and dissolution of marriage;

* family law property disputes where the property in dispute is worth less than $300,000, or property disputes worth more than this with the consent of the parties;

* where the parties' consent to a Federal Magistrate hearing the matter, parenting orders providing for the residence of a child; and

* parenting orders providing for other matters such as contact, maintenance and specific issues, whether or not the parties consent to a Federal Magistrate hearing the matter.

The Federal Magistrates Service will also have jurisdiction under the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988.

It is intended that the Federal Magistrates Service will use the infrastructure of the existing courts to the extent practical in order to minimise costs. This will include the Registry services of the Family and Federal Courts wherever practical.

The main provisions of the Bill are set out below.

Part 2- Establishment of Federal Magistrates Court

Part 2 provides for the establishment of the Federal Magistrates Court as a federal court, which may also be known as the Federal Magistrates Service or the Federal Magistrates Court of Australia. It is to be a court of record and a court of law and equity.

Part 3- Jurisdiction of Federal Magistrates Court

Part 3 provides that Federal Magistrates Court has such jurisdiction as is conferred on it by Parliament. Clause 11 provides that its jurisdiction is to be exercised by a single Federal Magistrate.

Clause 19 provides that proceedings are not to be institu