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Federal Court of Australia Act 1976

  • - C2005C00012
  • In force - Superseded Version
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Act No. 156 of 1976 as amended, taking into account amendments up to Act No. 62 of 2004
An Act to create a Federal Court of Australia and to make provision with respect to the Jurisdiction of that Court.
Administered by: Attorney-General's
Registered 06 Jan 2005
Start Date 01 Jan 2005
End Date 30 Nov 2005

Federal Court of Australia Act 1976

Act No. 156 of 1976 as amended

This compilation was prepared on 1 January 2005
taking into account amendments up to Act No. 62 of 2004

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated
may be affected by application provisions that are set out in
the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

  

  

  


Contents

Part I—Preliminary                                                                                                                1

1............ Short title [see Note 1]....................................................................... 1

2............ Commencement [see Notes 1 and 2].................................................. 1

3............ Extension to Territories...................................................................... 1

4............ Interpretation...................................................................................... 1

4A......... Application of the Criminal Code...................................................... 2

Part II—Federal Court of Australia                                                                             3

Division 1—Constitution of the Court                                                                 3

5............ Creation of Court................................................................................ 3

6............ Appointment, removal and resignation of Judges.............................. 3

7............ Acting Chief Justice............................................................................ 4

8............ Seniority............................................................................................. 4

9............ Salary and allowances of Judges......................................................... 4

10.......... Appropriation.................................................................................... 5

11.......... Oath or affirmation of office............................................................... 5

12.......... Place of sitting.................................................................................... 5

14.......... Manner in which Court may be constituted....................................... 5

15.......... Arrangement of business of Court...................................................... 6

15A....... Consultation between Chief Justice and Chief Judge of Family Court 7

16.......... Court divided in opinion..................................................................... 7

17.......... Exercise of jurisdiction in open court and in Chambers...................... 7

18.......... Powers of Court to extend to whole of Australia............................... 8

Part IIA—Management of the Court                                                                          9

Division 1—Management responsibilities of Chief Justice and Registrar          9

18A....... Management of administrative affairs of Court.................................. 9

18B....... Registrar.............................................................................................. 9

Division 2—Appointment, powers etc. of Registrar                                  10

18C....... Appointment of Registrar................................................................ 10

18D....... Powers of Registrar.......................................................................... 10

18E........ Remuneration of Registrar................................................................ 10

18F........ Terms and conditions of appointment of Registrar.......................... 11

18G....... Leave of absence............................................................................... 11

18H....... Resignation....................................................................................... 11

18J........ Outside employment of Registrar.................................................... 11

18K....... Termination of appointment............................................................ 11

18L........ Disclosure of interests by Registrar................................................. 12

18M...... Acting Registrar................................................................................ 13

Division 3—Other officers and staff of Registries                                      14

18N....... Personnel other than the Registrar.................................................... 14

18P........ Sheriff............................................................................................... 15

18Q....... Statutory Agency etc. for purposes of Public Service Act.............. 15

18R....... Engagement of consultants etc.......................................................... 15

Division 4—Miscellaneous administrative matters                                   16

18S........ Annual report................................................................................... 16

18W...... Delegation of administrative powers of Chief Justice...................... 16

18X....... Proceedings arising out of administration of Court.......................... 16

18Y....... Oath or affirmation of office............................................................. 16

Part III—Jurisdiction of the Court                                                                              18

Division 1—Original Jurisdiction                                                                         18

19.......... Original jurisdiction.......................................................................... 18

20.......... Exercise of original jurisdiction......................................................... 18

21.......... Declarations of right......................................................................... 19

22.......... Determination of matter completely and finally.............................. 20

23.......... Making of orders and issue of writs................................................. 20

Division 2—Appellate and related Jurisdiction                                            21

24.......... Appellate jurisdiction....................................................................... 21

25.......... Exercise of appellate jurisdiction...................................................... 22

26.......... Cases stated and questions reserved................................................. 23

27.......... Evidence on appeal........................................................................... 24

28.......... Form of judgment on appeal............................................................. 24

29.......... Stay of proceedings and suspension of orders................................. 25

29A....... Prison sentence not to include time on bail...................................... 26

30.......... New trials......................................................................................... 26

Division 3—General                                                                                                    27

31.......... Contempt of Court........................................................................... 27

32.......... Jurisdiction in associated matters..................................................... 27

32AA.... Proceedings not to be instituted in the Court if an associated matter is before the Federal Magistrates Court      27

32AB.... Discretionary transfer of proceedings to the Federal Magistrates Court                28

32A....... State Supreme Courts invested with jurisdiction in Chambers........ 29

Part IIIA—Trans‑Tasman market proceedings                                                  30

Division 1—Preliminary                                                                                            30

32B....... Interpretation.................................................................................... 30

Division 2—Exercise in New Zealand of jurisdiction by Federal Court                32

32C....... Federal Court sittings in New Zealand etc....................................... 32

32D....... New Zealand counsel entitled to practise in Federal Court in New Zealand           32

32E........ Australian injunction may be made in relation to New Zealand conduct etc.          32

32F........ Service of injunction in New Zealand etc......................................... 33

Division 3—Exercise in Australia of jurisdiction by High Court of New Zealand            34

32M...... High Court of New Zealand sittings in Australia etc....................... 34

32N....... Privileges, protection and immunity of participants in New Zealand proceedings 35

32P........ High Court of New Zealand may administer oath in Australia etc.. 35

32Q....... Service of New Zealand injunctions in Australia etc........................ 35

Division 4—Taking of evidence by Federal Court for High Court of New Zealand        36

32T....... Taking of evidence by Federal Court................................................ 36

32U....... Privilege of witnesses....................................................................... 36

32V....... Division not to derogate from existing Australian laws.................... 37

Division 5—Enforcement of judgments of High Court of New Zealand                38

32W...... Registration of judgment in Federal Court........................................ 38

32X....... Variation of registered judgment....................................................... 39

32Y....... Cases in which registration must be set aside................................... 40

32Z....... Stay of enforcement of registered judgment..................................... 40

32ZA.... New Zealand judgment not enforceable otherwise than under Division  41

32ZB..... Application of rules of private international law............................. 41

Division 6—Miscellaneous                                                                                      42

32ZC..... Jurisdiction of Federal Court under Part.......................................... 42

32ZE..... Contempt of High Court of New Zealand........................................ 42

32ZF..... Reciprocal arrangements for use of court facilities........................... 43

Part IV—Appeals to High Court                                                                                  44

33.......... Appeals to High Court..................................................................... 44

Part IVA—Representative proceedings                                                                  45

Division 1—Preliminary                                                                                            45

33A....... Interpretation.................................................................................... 45

33B....... Application....................................................................................... 45

Division 2—Commencement of representative proceeding                 46

33C....... Commencement of proceeding.......................................................... 46

33D....... Standing............................................................................................ 46

33E........ Is consent required to be a group member?...................................... 47

33F........ Persons under disability................................................................... 47

33G....... Representative proceeding not to be commenced in certain circumstances             47

33H....... Originating process........................................................................... 48

33J........ Right of group member to opt out.................................................... 48

33K....... Causes of action accruing after commencement of representative proceeding         48

33L........ Situation where fewer than 7 group members.................................. 49

33M...... Cost of distributing money etc. excessive........................................ 49

33N....... Order that proceeding not continue as representative proceeding where costs excessive etc. 50

33P........ Consequences of order that proceeding not continue under this Part 50

33Q....... Determination of issues where not all issues are common............... 51

33R....... Individual issues............................................................................... 51

33S........ Directions relating to commencement of further proceedings.......... 51

33T....... Adequacy of representation............................................................. 52

33U....... Stay of execution in certain circumstances....................................... 52

33V....... Settlement and discontinuance—representative proceeding............. 52

33W...... Settlement of individual claim of representative party..................... 52

Division 3—Notices                                                                                                     54

33X....... Notice to be given of certain matters................................................ 54

33Y....... Notices—ancillary provisions.......................................................... 54

Division 4—Judgment etc.                                                                                      56

33Z....... Judgment—powers of the Court...................................................... 56

33ZA.... Constitution etc. of fund.................................................................. 57

33ZB..... Effect of judgment............................................................................ 58

Division 5—Appeals                                                                                                    59

33ZC..... Appeals to the Court........................................................................ 59

33ZD.... Appeals to the High Court—extended operation of sections 33ZC and 33ZF       60

Division 6—Miscellaneous                                                                                      61

33ZE..... Suspension of limitation periods...................................................... 61

33ZF..... General power of Court to make orders........................................... 61

33ZG.... Saving of rights, powers etc.............................................................. 61

33ZH.... Special provision relating to claims under Part VI of the Trade Practices Act 1974               62

33ZJ...... Reimbursement of representative party’s costs............................... 62

Part V—Registries, officers and seal                                                                        63

34.......... Registries.......................................................................................... 63

35.......... Officers of Court.............................................................................. 63

35A....... Powers of Registrars......................................................................... 63

36.......... Seal of Court..................................................................................... 65

37.......... Writs etc........................................................................................... 65

Part VA—Assessors                                                                                                            67

37A....... Appointment of assessors................................................................ 67

37B....... Qualifications for appointment........................................................ 67

37C....... Remuneration and allowances........................................................... 67

37D....... Terms and conditions of appointment............................................. 68

37E........ Oath or affirmation of office............................................................. 68

37F........ Leave of absence............................................................................... 68

37G....... Resignation....................................................................................... 68

37H....... Termination of appointment—bankruptcy etc................................ 69

37I......... Termination of appointment—misbehaviour or incapacity............. 69

37J........ Suspension of assessors—misbehaviour or incapacity.................... 70

37K....... Outside employment........................................................................ 70

37L........ Disclosure of interests...................................................................... 71

Part VI—General                                                                                                                  72

38.......... Practice and procedure...................................................................... 72

39.......... Trial without jury............................................................................. 72

40.......... Power of Court to direct trial of issues with a jury.......................... 72

41.......... Juries................................................................................................. 72

42.......... Offences in relation to jurors............................................................ 73

43.......... Costs................................................................................................. 74

44.......... Oaths and affirmations..................................................................... 75

45.......... Swearing of affidavits....................................................................... 75

46.......... Orders and commissions for examination of witnesses.................... 76

47.......... Oral, video link, telephone and affidavit evidence............................ 77

47A....... Testimony by video link, audio link or other appropriate means.... 77

47B....... Appearances or submissions by video link, audio link or other appropriate means               78

47C....... Conditions for use of video links, audio links or other appropriate means             79

47D....... Putting documents to a person by video link, audio link or other appropriate means            81

47E........ Administration of oaths and affirmations......................................... 82

47F........ Expenses........................................................................................... 82

47G....... New Zealand proceedings................................................................. 82

48.......... Change of venue................................................................................ 82

49.......... Reserved judgments.......................................................................... 83

50.......... Prohibition of publication of evidence etc........................................ 83

51.......... Formal defects not to invalidate....................................................... 83

51A....... Interest up to judgment.................................................................... 84

52.......... Interest on judgment......................................................................... 85

53.......... Enforcement of judgment.................................................................. 85

53A....... Mediation and arbitration................................................................. 85

53AA.... Power of arbitrator to refer question of law to the Court................ 86

53AB.... Application to the Court for review of award on a question of law or for costs to be taxed  86

53B....... Admissions made to mediators......................................................... 88

53C....... Protection of mediators and arbitrators............................................ 88

54.......... Arbitration awards............................................................................ 88

55.......... Actions by or against Sheriff............................................................ 88

56.......... Security............................................................................................. 89

57.......... Receivers........................................................................................... 89

58.......... Offences by witness......................................................................... 90

Part VII—Rules of Court and regulations                                                              91

59.......... Rules of Court.................................................................................. 91

59A....... Regulations modifying or adapting the Legislative Instruments Act 2003               94

60.......... Regulations relating to fees............................................................... 94

The Schedule                                                                                                                            96

Notes                                                                                                                                            97


An Act to create a Federal Court of Australia and to make provision with respect to the Jurisdiction of that Court

Part IPreliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Federal Court of Australia Act 1976.

2  Commencement [see Notes 1 and 2]

             (1)  This Act shall come into operation on the day on which it receives the Royal Assent.

             (2)  No proceeding shall be instituted in the Court before a day to be fixed by Proclamation as the day on which the Court shall commence to exercise its jurisdiction.

3  Extension to Territories

                   This Act extends to every external Territory.

4  Interpretation

                   In this Act, unless the contrary intention appears:

audio link means facilities (for example, telephone facilities) that enable audio communication between persons in different places.

Chief Justice means the Chief Justice of the Court, and includes a Judge for the time being performing the duties and exercising the powers of Chief Justice.

commencing day means the day fixed under subsection 2(2).

Court means the Federal Court of Australia established by this Act.

Full Court means a Full Court constituted in accordance with section 14.

Judge means a Judge of the Court (including the Chief Justice) and, in the expression “the Court or a Judge”, means a Judge sitting in Chambers.

judgment means a judgment, decree or order, whether final or interlocutory, or a sentence.

proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal.

suit includes any action or original proceeding between parties.

video link means facilities (for example, closed‑circuit television facilities) that enable audio and visual communication between persons in different places.

4A  Application of the Criminal Code

                   Chapter 2 of the Criminal Code applies to all offences against this Act.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.


 

Part IIFederal Court of Australia

Division 1Constitution of the Court

5  Creation of Court

             (1)  A federal court, to be known as the Federal Court of Australia, is created by this Act.

             (2)  The Court is a superior court of record and is a court of law and equity.

             (3)  The Court consists of a Chief Justice, and such other Judges as from time to time hold office in accordance with this Act.

6  Appointment, removal and resignation of Judges

             (1)  A Judge:

                     (a)  shall be appointed by the Governor‑General by commission; and

                     (b)  shall not be removed except by the Governor‑General, on an address from both Houses of the Parliament in the same session, praying for his or her removal on the ground of proved misbehaviour or incapacity.

             (2)  A person shall not be appointed as a Judge unless he or she is or has been a Judge of a prescribed court or of a court of a State or has been enrolled as a legal practitioner of the High Court or of the Supreme Court of a State or Territory for not less than 5 years.

             (4)  A Judge may resign his or her office by writing under his or her hand delivered to the Governor‑General, and the resignation takes effect on the day on which it is received by the Governor‑General or on such later day as is specified in the writing.

             (5)  Notwithstanding anything contained in any other Act, a person may hold office at the one time as a Judge, other than the Chief Justice, of the Court and as a Judge of a prescribed court or of 2 or more prescribed courts.

             (6)  A Judge or former Judge is entitled to be styled “The Honourable”.

             (7)  In this section:

prescribed court means:

                     (a)  a court (other than the Court) created by the Parliament; or

                     (b)  the Supreme Court of the Northern Territory; or

                     (c)  the Supreme Court of the Australian Capital Territory.

7  Acting Chief Justice

                   Whenever:

                     (a)  the Chief Justice is absent from Australia or from duty; or

                     (b)  there is a vacancy in the office of Chief Justice, the next senior Judge who is in Australia and is able and willing to do so shall perform the duties;

and may exercise the powers, of the Chief Justice.

8  Seniority

                   The Chief Justice is the senior Judge of the Court and the other Judges have seniority according to the dates on which their commissions took effect or, where the commissions of 2 or more of them took effect on the same date, according to the precedence assigned to them by their commissions.

9  Salary and allowances of Judges

             (1)  The Chief Justice and each other Judge shall, receive salary, annual allowances and travelling allowances at such respective rates as are fixed from time to time by the Parliament.

             (2)  The salary and annual allowance to which a Judge is entitled under this section accrue from day to day and are payable monthly.

             (3)  The remuneration of a Judge shall not be diminished during his or her continuance in office.

10  Appropriation

                   The Consolidated Revenue Fund is appropriated to the extent necessary for payment of salaries and allowances in accordance with section 9.

11  Oath or affirmation of office

                   A Judge shall, before proceeding to discharge the duties of his or her office, take before the Governor‑General, another Judge of the Court, a Justice of the High Court or a Judge of the Supreme Court of a State or Territory an oath or affirmation in accordance with the form in the Schedule.

12  Place of sitting

                   Sittings of the Court shall be held from time to time as required at the places at which the registries of the Court are established, but the Court may sit at any place in Australia or in a Territory.

14  Manner in which Court may be constituted

             (1)  For the purposes of the exercise of the jurisdiction of the Court, the Court may be constituted by a single Judge or as a Full Court.

             (2)  A Full Court consists of 3 or more Judges sitting together or, to the extent permitted by subsection (3), of 2 Judges sitting together.

             (3)  Where, after a Full Court (including a Full Court constituted in accordance with this subsection) has commenced the hearing, or further hearing, of a proceeding and before the proceeding has been determined, one of the Judges constituting the Full Court dies, resigns his or her office or otherwise becomes unable to continue as a member of the Full Court for the purposes of the proceeding, then the hearing and determination, or the determination, of the proceeding may be completed by a Full Court constituted by the remaining Judges, if at least 3 Judges remain or, if the remaining Judges are 2 in number and the parties consent, by a Full Court constituted by the remaining Judges.

             (4)  In the application of subsection (3) in relation to an appeal from a judgment of the Supreme Court of a Territory constituted by 2 or more Judges, the reference in that subsection to 3 Judges shall be read as a reference to 5 Judges and the reference in that subsection to Judges who are 2 in number shall be read as a reference to Judges who are 4 in number.

             (5)  A Full Court constituted in accordance with subsection (3) or (4) may have regard to any evidence given or received, and arguments adduced, by or before the Full Court as previously constituted.

             (6)  The Court constituted by one or more Judges may sit and exercise the jurisdiction of the Court notwithstanding that the Court constituted by one or more other Judges is at the same time sitting and exercising the jurisdiction of the Court.

15  Arrangement of business of Court

             (1)  The Chief Justice is responsible for ensuring the orderly and expeditious discharge of the business of the Court and accordingly may subject to this Act and to such consultation with the Judges as is appropriate and practicable, make arrangements as to the Judge or Judges who is or are to constitute the Court in particular matters or classes of matters.

             (2)  Where a Judge of the Federal Court of Australia also holds office as an additional Judge of the Supreme Court of the Australian Capital Territory or of the Supreme Court of the Northern Territory of Australia, arrangements shall be made between the Chief Justice of the Federal Court of Australia and the Chief Judge or Chief Justice, as the case may be, of that Supreme Court as to the extent to which the Judge is to take part in the exercise of the jurisdiction of that Supreme Court, but the Chief Justice of the Federal Court of Australia shall consult with the Judge concerned before making any such arrangements.

             (3)  Where a Judge, other than an additional Judge, of the Supreme Court of the Australian Capital Territory or of the Supreme Court of the Northern Territory of Australia also holds office as a Judge of the Federal Court of Australia, he or she is not required to take part in the exercise of the jurisdiction of the Federal Court of Australia except in accordance with arrangements made between the Chief Justice of the Federal Court of Australia and the Chief Judge or Chief Justice, as the case may be, of that Supreme Court, but the Chief Judge or Chief Justice, as the case may be, of that Supreme Court shall consult with the Judge concerned before making any such arrangements.

15A  Consultation between Chief Justice and Chief Judge of Family Court

                   The Chief Justice and the Chief Judge of the Family Court of Australia may consult with each other in relation to the transfer of proceedings pending in the Court to the Family Court (whether generally or in relation to the transfer of particular proceedings).

16  Court divided in opinion

                   If the Judges constituting a Full Court for the purposes of any proceeding are divided in opinion as to the judgment to be pronounced, judgment shall be pronounced according to the opinion of the majority, if there is a majority, but, if the Judges are equally divided in opinion:

                     (a)  in the case of an appeal from a judgment of the Court constituted by a single Judge, or of the Supreme Court of a State or Territory—the judgment appealed from shall be affirmed; and

                     (b)  in any other case—the opinion of the Chief Justice or, if he or she is not a member of the Full Court, the opinion of the senior Judge who is a member of the Full Court, shall prevail.

17  Exercise of jurisdiction in open court and in Chambers

             (1)  Except where, as authorized by this section or another law of the Commonwealth, the jurisdiction of the Court is exercised by a Judge sitting in Chambers, the jurisdiction of the Court shall be exercised in open court.

             (2)  The jurisdiction of the Court may be exercised by a Judge sitting in Chambers in:

                     (a)  a proceeding on an application relating to the conduct of a proceeding;

                     (b)  a proceeding on an application for orders or directions as to any matter which, by this Act or any other law of the Commonwealth, is made subject to the direction of a Judge sitting in Chambers; and

                     (c)  a proceeding on any other application authorized by the Rules of Court to be made to a Judge sitting in Chambers.

             (3)  A Judge may order a proceeding in Chambers to be adjourned into court.

             (4)  The Court may order the exclusion of the public or of persons specified by the Court from a sitting of the Court where the Court is satisfied that the presence of the public or of those persons, as the case may be, would be contrary to the interests of justice.

18  Powers of Court to extend to whole of Australia

                   The process of the Court runs, and the judgments of the Court have effect and may be executed, throughout Australia and the Territories.


 

Part IIAManagement of the Court

Division 1Management responsibilities of Chief Justice and Registrar

18A  Management of administrative affairs of Court

             (1)  The Chief Justice is responsible for managing the administrative affairs of the Court.

             (2)  For that purpose, the Chief Justice has power to do all things that are necessary or convenient to be done, including, on behalf of the Commonwealth:

                     (a)  entering into contracts; and

                     (b)  acquiring or disposing of personal property.

             (3)  The powers given to the Chief Justice by subsection (2) are in addition to any powers given to the Chief Justice by any other provision of this Act or by any other Act.

             (4)  Subsection (2) does not authorise the Chief Justice to:

                     (a)  acquire any interest or right that would constitute an interest in land for the purposes of the Lands Acquisition Act 1989; or

                     (b)  enter into a contract under which the Commonwealth is to pay or receive an amount exceeding $250,000 or, if a higher amount is prescribed, that higher amount, except with the approval of the Attorney‑General.

18B  Registrar

                   In the management of the administrative affairs of the Court, the Chief Justice is assisted by the Registrar of the Court.


 

Division 2Appointment, powers etc. of Registrar

18C  Appointment of Registrar

                   The Registrar is appointed by the Governor‑General on the nomination of the Chief Justice.

18D  Powers of Registrar

             (1)  The Registrar has power to do all things necessary or convenient to be done for the purpose of assisting the Chief Justice under section 18B.

             (2)  In particular, the Registrar may act on behalf of the Chief Justice in relation to the administrative affairs of the Court.

             (3)  The Chief Justice may give the Registrar directions regarding the exercise of his or her powers under this Part.

18E  Remuneration of Registrar

             (1)  The Registrar is to be paid the remuneration and allowances determined by the Remuneration Tribunal.

             (2)  If there is no determination in force, the Registrar is to be paid such remuneration as is prescribed.

             (3)  The Registrar is to be paid such other allowances as are prescribed.

             (4)  Remuneration and allowances payable to the Registrar under this section are to be paid out of money appropriated by the Parliament for the purposes of the Court.

18F  Terms and conditions of appointment of Registrar

             (1)  The Registrar holds office for the period (not longer than 5 years) specified in the instrument of his or her appointment, but is eligible for re‑appointment.

             (4)  The Registrar holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Chief Justice.

18G  Leave of absence

             (1)  The Registrar has such recreation leave entitlements as are determined by the Remuneration Tribunal.

             (2)  The Chief Justice may grant the Registrar leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Chief Justice, with the approval of the Attorney‑General, determines.

18H  Resignation

                   The Registrar may resign by giving a signed notice of resignation to the Governor‑General.

18J  Outside employment of Registrar

             (1)  Except with the consent of the Chief Justice, the Registrar must not engage in paid employment outside the duties of his or her office.

             (2)  The reference in subsection (1) to paid employment does not include service in the Defence Force.

18K  Termination of appointment

             (1)  The Governor‑General may terminate the appointment of the Registrar for misbehaviour or physical or mental incapacity.

             (2)  The Governor‑General is required to terminate the appointment of the Registrar if the Registrar:

                     (a)  becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit; or

                     (b)  is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

                     (c)  engages in paid employment contrary to section 18J; or

                     (d)  fails, without reasonable excuse, to comply with section 18L.

             (3)  The Governor‑General may, with the consent of a Registrar who is:

                     (a)  an eligible employee for the purposes of the Superannuation Act 1976; or

                     (b)  a member of the superannuation scheme established by deed under the Superannuation Act 1990;

retire the Registrar from office on the ground of incapacity.

             (4)  In spite of anything contained in this section, if the Registrar:

                     (a)  is an eligible employee for the purposes of the Superannuation Act 1976; and

                     (b)  has not reached his or her maximum retiring age within the meaning of that Act;

he or she is not capable of being retired from office on the ground of invalidity within the meaning of Part IVA of that Act unless the Commonwealth Superannuation Board of Trustees No. 2 has given a certificate under section 54C of that Act.

             (5)  In spite of anything contained in this section, if the Registrar:

                     (a)  is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and

                     (b)  is under 60 years of age;

he or she is not capable of being retired from office on the ground of invalidity within the meaning of that Act unless the Commonwealth Superannuation Board of Trustees No. 1 has given a certificate under section 13 of that Act.

18L  Disclosure of interests by Registrar

                   The Registrar must give written notice to the Chief Justice of all direct or indirect pecuniary interests that the Registrar has or acquires in any business or in any body corporate carrying on a business.

18M  Acting Registrar

             (1)  The Chief Justice may, in writing, appoint a person to act in the office of Registrar:

                     (a)  during a vacancy in the office (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Registrar is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office.

             (2)  A person appointed to act in the office of Registrar during a vacancy may not continue to act in that office for more than 12 months.

             (3)  Anything done by or in relation to a person purporting to act under subsection (1) is not invalid on the ground that:

                     (a)  the occasion for the appointment had not arisen; or

                     (b)  there was a defect or irregularity in connection with the appointment; or

                     (c)  the appointment had ceased to have effect; or

                     (d)  the occasion for the person to act had not arisen or had ceased.


 

Division 3Other officers and staff of Registries

18N  Personnel other than the Registrar

             (1)  In addition to the Registrar, there are the following officers of the Court:

                     (a)  a District Registrar of the Court for each District Registry;

                     (b)  such Deputy Registrars and Deputy District Registrars as are necessary;

                     (c)  the Sheriff of the Court;

                     (d)  such Deputy Sheriffs as are necessary;

                     (e)  such Marshals for the purposes of the Admiralty Act 1988 as are necessary.

             (2)  The officers of the Court, other than the Registrar, have such duties, powers and functions as are given to them by this Act or by the Chief Justice.

             (3)  The officers of the Court are appointed by the Registrar.

             (4)  The officers of the Court (other than the Registrar, the Deputy Sheriffs and the Marshals) are to be persons engaged under the Public Service Act 1999.

             (5)  The Deputy Sheriffs and the Marshals may be persons engaged under the Public Service Act 1999.

             (6)  The Registrar may, on behalf of the Chief Justice, arrange with an Agency Head within the meaning of the Public Service Act 1999, or with an authority of the Commonwealth, for the services of officers or employees of the Agency or authority to be made available for the purposes of the Court.

             (7)  There are to be such staff of the Registries as are necessary.

             (8)  The staff of the Registries is to consist of persons engaged under the Public Service Act 1999.

18P  Sheriff

             (1)  The Sheriff of the Court is responsible for the service and execution of all process of the Court directed to the Sheriff.

             (2)  The Sheriff is also responsible for:

                     (a)  taking, receiving and detaining all persons committed to his or her custody by the Court; and

                     (b)  discharging such persons when so directed by the Court or otherwise required by law.

             (3)  A Deputy Sheriff may, subject to any directions of the Sheriff, exercise or perform any of the powers or functions of the Sheriff.

             (4)  The Sheriff or a Deputy Sheriff may authorise persons to assist him or her in the exercise of any of his or her powers or the performance of any of his or her functions.

18Q  Statutory Agency etc. for purposes of Public Service Act

                   For the purposes of the Public Service Act 1999:

                     (a)  the Registrar and the APS employees assisting the Registrar together constitute a Statutory Agency; and

                     (b)  the Registrar is the Head of that Statutory Agency.

18R  Engagement of consultants etc.

             (1)  The Registrar may engage persons having suitable qualifications and experience as consultants to, or to perform services for, the Registrar.

             (2)  An engagement under subsection (1) is to be made:

                     (a)  on behalf of the Commonwealth; and

                     (b)  by written agreement.


 

Division 4Miscellaneous administrative matters

18S  Annual report

             (1)  As soon as practicable after 30 June in each year, the Chief Justice must prepare and give to the Attorney‑General a report of the management of the administrative affairs of the Court during the year.

             (2)  The report must include:

                     (a)  the financial statements required by section 49 of the Financial Management and Accountability Act 1997; and

                     (b)  an audit report on those statements under section 57 of the Financial Management and Accountability Act 1997.

             (3)  The Attorney‑General must cause a copy of the report to be tabled in each House of the Parliament as soon as practicable.

18W  Delegation of administrative powers of Chief Justice

                   The Chief Justice may, in writing, delegate all or any of his or her powers under section 18A to any one or more of the Judges.

18X  Proceedings arising out of administration of Court

                   Any judicial or other proceeding relating to a matter arising out of the management of the administrative affairs of the Court under this Part, including any proceeding relating to anything done by the Registrar under this Part, may be instituted by or against the Commonwealth, as the case requires.

18Y  Oath or affirmation of office

                   The Registrar, a District Registrar, a Deputy Registrar or a Deputy District Registrar shall, before proceeding to discharge the duties of the office, take, before the Chief Justice or a Judge of the Court, an oath or affirmation in the following form:

“I,                                                 , do swear that I will well and truly serve in the office of (Registrar, District Registrar, Deputy Registrar or Deputy District Registrar, as the case may be) of the Federal Court of Australia and that I will do right to all manner of people according to law, without fear or favour, affection or illwill, So help me God.”

or

“I,                                                 , do solemnly and sincerely promise and declare that” (as above, omitting the words ‘So help me God’).”


 

Part IIIJurisdiction of the Court

Division 1Original Jurisdiction

19  Original jurisdiction

             (1)  The Court has such original jurisdiction as is vested in it by laws made by the Parliament.

             (2)  The original jurisdiction of the Court includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts.

20  Exercise of original jurisdiction

             (1)  Except as otherwise provided by this Act or any other Act, the original jurisdiction of the Court shall be exercised by a single Judge.

          (1A)  If the Chief Justice considers that a matter coming before the Court in the original jurisdiction of the Court is of sufficient importance to justify the giving of a direction under this subsection, the Chief Justice may direct that the jurisdiction of the Court in that matter, or a specified part of that matter, shall be exercised by a Full Court.

             (2)  Subject to subsections (3) and (5), the jurisdiction of the Court in a matter coming before the Court from a tribunal or authority (other than a court) while constituted by, or by members who include, a person who is a Judge of the Court or of another court created by the Parliament shall be exercised by a Full Court.

             (3)  If the matter coming before the Court as mentioned in subsection (2) is an application:

                     (a)  for leave or special leave to institute proceedings in the Court; or

                     (b)  for an extension of time within which to institute proceedings in the Court; or

                     (c)  for leave to amend the grounds of an application or appeal to the Court; or

                     (d)  to stay a decision of the tribunal or authority mentioned in subsection (2);

the matter may be heard and determined by a single Judge or by a Full Court.

             (4)  The Rules of Court may make provision enabling applications of the kind mentioned in subsection (3) to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing.

             (5)  In a matter coming before the Court as mentioned in subsection (2), a single Judge or a Full Court may:

                     (a)  join or remove a party; or

                     (b)  make an order (including an order for costs) by consent disposing of the matter; or

                     (c)  make an order that the matter be dismissed for want of prosecution; or

                     (d)  make an order that the matter be dismissed for:

                              (i)  failure to comply with a direction of the Court; or

                             (ii)  failure of the applicant to attend a hearing relating to the matter; or

                    (da)  vary or set aside an order under paragraph (c) or (d); or

                     (e)  give directions about the conduct of the matter, including directions about:

                              (i)  the use of written submissions; and

                             (ii)  limiting the time for oral argument.

             (6)  The Rules of Court may make provision enabling the powers in subsection (5) to be exercised, subject to conditions prescribed by the Rules, without an oral hearing.

21  Declarations of right

             (1)  The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.

             (2)  A suit is not open to objection on the ground that a declaratory order only is sought.

22  Determination of matter completely and finally

                   The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.

23  Making of orders and issue of writs

                   The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.


 

Division 2Appellate and related Jurisdiction

24  Appellate jurisdiction

             (1)  Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine:

                     (a)  appeals from judgments of the Court constituted by a single Judge;

                     (b)  appeals from judgments of the Supreme Court of a Territory (other than the Australian Capital Territory or the Northern Territory); and

                     (c)  in such cases as are provided by any other Act, appeals from judgments of a court (other than a Full Court of the Supreme Court) of a State, the Australian Capital Territory or the Northern Territory, exercising federal jurisdiction; and

                     (d)  appeals from judgments of the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth other than:

                              (i)  the Family Law Act 1975; or

                             (ii)  the Child Support (Assessment) Act 1989; or

                            (iii)  the Child Support (Registration and Collection) Act 1988; or

                            (iv)  regulations under an Act referred to in subparagraph (i), (ii) or (iii).

     (1AAA)  An appeal may not be brought to the Court from a judgment of the Court constituted by a single Judge exercising the appellate jurisdiction of the Court in relation to an appeal from the Federal Magistrates Court.

          (1A)  An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.

             (5)  A reference in this section to the Full Court of the Supreme Court of a State or Territory shall be read as a reference to the Supreme Court of a State or Territory when constituted by 2 or more judges, and includes the Supreme Court of a State or Territory when so constituted for the purpose of sitting as the Court of Appeal of the State or Territory.

25  Exercise of appellate jurisdiction

             (1)  The appellate jurisdiction of the Court shall, subject to this section and to the provisions of any other Act, be exercised by a Full Court.

          (1A)  The appellate jurisdiction of the Court in relation to an appeal from a judgment of the Federal Magistrates Court is to be exercised by a Full Court unless the Chief Justice considers that it is appropriate for the appellate jurisdiction of the Court in relation to the appeal to be exercised by a single Judge.

          (1B)  Subsection (1A) has effect subject to subsections (2) and (2B).

             (2)  Applications:

                     (a)  for leave or special leave to appeal to the Court; or

                     (b)  for an extension of time within which to institute an appeal to the Court; or

                     (c)  for leave to amend the grounds of an appeal to the Court; or

                     (d)  to stay an order of a Full Court;

may be heard and determined by a single Judge or by a Full Court.

          (2A)  The Rules of Court may make provision enabling applications of the kind mentioned in subsection (2) to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing.

          (2B)  A single Judge or a Full Court may:

                     (a)  join or remove a party to an appeal to the Court; or

                     (b)  make an order by consent disposing of an appeal to the Court (including an order for costs); or

                    (ba)  make an order that an appeal to the Court be dismissed for want of prosecution; or

                    (bb)  make an order that an appeal to the Court be dismissed for:

                              (i)  failure to comply with a direction of the Court; or

                             (ii)  failure of the appellant to attend a hearing relating to the appeal; or

                    (bc)  vary or set aside an order under paragraph (ba) or (bb); or

                     (c)  give directions about the conduct of an appeal to the Court, including directions about:

                              (i)  the use of written submissions; and

                             (ii)  limiting the time for oral argument.

          (2C)  The Rules of Court may make provision enabling matters of the kind mentioned in subsection (2B) to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing.

             (3)  Except where the Chief Justice considers it impracticable for the Court to be so constituted, a Full Court of the Court for the exercise of jurisdiction in an appeal from a judgment of the Supreme Court of a Territory shall include at least one Judge who holds office as a Judge of the Supreme Court of that Territory.

             (4)  The jurisdiction of the Court in an appeal from a judgment of the Supreme Court of a Territory constituted by 2 or more Judges shall be exercised by a Full Court of the Court constituted by not less than 5 Judges.

             (5)  Subject to any other Act, the jurisdiction of the Court in an appeal from a judgment of a Court of summary jurisdiction may be exercised by one Judge or by a Full Court.

             (6)  The Court constituted by a single Judge may state any case or reserve any question concerning a matter with respect to which an appeal would lie from a judgment of the Judge to a Full Court of the Court for the consideration of a Full Court and the Full Court has jurisdiction to hear and determine the case or question.

26  Cases stated and questions reserved

             (1)  A court from which appeals lie to the Court may state any case or reserve any question concerning a matter with respect to which such an appeal would lie from a judgment of the first‑mentioned court for the consideration of the Court and the Court has jurisdiction to hear and determine the case or question.

             (2)  Subject to any other Act, the jurisdiction of the Court under subsection (1):

                     (a)  if the court stating the case or reserving the question is a court of summary jurisdiction—may be exercised by one Judge or by a Full Court; or

                     (b)  if the court stating the case or reserving the question is not a court of summary jurisdiction—must be exercised by a Full Court.

             (3)  A court referred to in subsection (1) shall not state a case, or reserve or refer a question concerning a matter referred to in that subsection, to a court other than the Court.

27  Evidence on appeal

                   In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken:

                     (a)  on affidavit; or

                     (b)  by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or

                     (c)  by oral examination before the Court or a Judge; or

                     (d)  otherwise in accordance with section 46.

28  Form of judgment on appeal

             (1)  Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:

                     (a)  affirm, reverse or vary the judgment appealed from;

                     (b)  give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;

                     (c)  set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;

                     (d)  set aside a verdict or finding of a jury in a civil proceeding, and enter judgment notwithstanding any such verdict or finding;

                     (e)  set aside the verdict and judgment in a trial on indictment and order a verdict of not guilty or other appropriate verdict to be entered;

                      (f)  grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial; or

                     (g)  award execution from the Court or, in the case of an appeal from another court, award execution from the Court or remit the cause to that other court, or to a court from which a previous appeal was brought, for the execution of the judgment of the Court.

             (2)  It is the duty of a court to which a cause is remitted in accordance with paragraph (g) of subsection (1) to execute the judgment of the Court in the same manner as if it were its own judgment.

             (3)  The powers specified in subsection (1) may be exercised by the Court notwithstanding that the notice of appeal asks that part only of the decision may be reversed or varied, and may be exercised in favour of all or any of the respondents or parties, including respondents or parties who have not appealed from or complained of the decision.

             (4)  An interlocutory judgment or order from which there has been no appeal does not operate to prevent the Court, upon hearing an appeal, from giving such decision upon the appeal as is just.

             (5)  The powers of the Court under subsection (1) in an appeal (whether by the Crown or by the defendant) against a sentence in a criminal matter include the power to increase or decrease the sentence or substitute a different sentence.

29  Stay of proceedings and suspension of orders

             (1)  Where an appeal to the Court from another court has been instituted:

                     (a)  the Court or a Judge, or a judge of that other court (not being the Federal Magistrates Court or a court of summary jurisdiction), may order, on such conditions (if any) as it or he or she thinks fit, a stay of all or any proceedings under the judgment appealed from; and

                     (b)  the Court or a Judge may, by order, on such conditions (if any) as it or he or she thinks fit, suspend the operation of an injunction or other order to which the appeal, in whole or in part, relates.

             (2)  This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the stay of proceedings.

29A  Prison sentence not to include time on bail

                   Where a person who has been convicted of an offence and sentenced to a term of imprisonment appeals to the Court against the conviction or sentence, or both, any time during which the person is released on bail pending the determination of the appeal does not count as part of the term of imprisonment to which the person has been sentenced.

30  New trials

             (1)  In an appeal in which the Court grants a new trial, the Court may impose such conditions on a party, and may direct such admissions to be made by a party, for the purpose of the new trial as are just.

             (2)  Where the Court grants a new trial in a suit, the Court:

                     (a)  may grant it, either generally or on particular issues only, as it thinks just; and

                     (b)  may order that testimony of a witness examined at the former trial may be used in the new trial in the manner provided in the order.


 

Division 3General

31  Contempt of Court

             (1)  Subject to any other Act, the Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.

             (2)  The jurisdiction of the Court to punish a contempt of the Court committed in the face or hearing of the Court may be exercised by the Court as constituted at the time of the contempt.

32  Jurisdiction in associated matters

             (1)  To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked.

             (2)  The jurisdiction conferred by subsection (1) extends to jurisdiction to hear and determine an appeal from a judgment of a court so far as it relates to a matter that is associated with a matter in respect of which an appeal from that judgment, or another judgment of that court, is brought.

32AA  Proceedings not to be instituted in the Court if an associated matter is before the Federal Magistrates Court

             (1)  Proceedings must not be instituted in the Court in respect of a matter if:

                     (a)  the Federal Magistrates Court has jurisdiction in that matter; and

                     (b)  proceedings in respect of an associated matter are pending in the Federal Magistrates Court.

             (2)  If:

                     (a)  proceedings are instituted in the Court in contravention of subsection (1); and

                     (b)  the proceedings are subsequently transferred to the Federal Magistrates Court;

the proceedings are taken to be as valid as they would have been if subsection (1) had not been enacted.

32AB  Discretionary transfer of proceedings to the Federal Magistrates Court

             (1)  If a proceeding is pending in the Court, the Court may, by order, transfer the proceeding from the Court to the Federal Magistrates Court.

             (2)  The Court may transfer a proceeding under subsection (1):

                     (a)  on the application of a party to the proceeding; or

                     (b)  on its own initiative.

             (3)  The Rules of Court may make provision in relation to transfers of proceedings to the Federal Magistrates Court under subsection (1).

             (4)  In particular, the Rules of Court may set out factors that are to be taken into account by the Court in deciding whether to transfer a proceeding to the Federal Magistrates Court under subsection (1).

             (5)  Before Rules of Court are made for the purposes of subsection (3) or (4), the Court must consult the Federal Magistrates Court.

             (6)  In deciding whether to transfer a proceeding to the Federal Magistrates Court under subsection (1), the Court must have regard to:

                     (a)  any Rules of Court made for the purposes of subsection (4); and

                     (b)  whether proceedings in respect of an associated matter are pending in the Federal Magistrates Court; and

                     (c)  whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding; and

                     (d)  the interests of the administration of justice.

             (7)  If an order is made under subsection (1), the Court may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Magistrates Court.

             (8)  An appeal does not lie from a decision of the Court in relation to the transfer of a proceeding under subsection (1).

             (9)  The reference in subsection (1) to a proceeding pending in the Court includes a reference to a proceeding that was instituted in contravention of section 32AA.

           (10)  This section does not apply to proceedings of a kind specified in the regulations.

32A  State Supreme Courts invested with jurisdiction in Chambers

             (1)  In any matter pending in the Federal Court of Australia, the Supreme Court of a State is invested with federal jurisdiction, and, to the extent that the Constitution permits, jurisdiction is conferred on the Supreme Court of the Australian Capital Territory and on the Supreme Court of the Northern Territory, to hear and determine any application that may be made to a Judge of the first‑mentioned court sitting in Chambers.

             (2)  The jurisdiction under this section may be exercised by a single Judge of the Supreme Court sitting in Chambers, and the order of the Judge shall have the effect of an order of a Judge of the Federal Court of Australia sitting in Chambers and any appeal against the order, or proceedings for enforcement of the order or for contempt of court in relation to the order, shall be brought and dealt with as if the order were an order of a Judge of the Federal Court of Australia.

             (3)  The power of the Judges of the Federal Court of Australia or a majority of them under section 59 to make Rules of Court shall be deemed to extend to Rules of Court relating to the practice and procedure to be followed in applications in accordance with this section.

             (4)  This section does not apply to a proceeding that is an Australian proceeding within the meaning of Part IIIA.


 

Part IIIATrans‑Tasman market proceedings

Division 1Preliminary

32B  Interpretation

                   In this Part, unless the contrary intention appears:

Australian injunction means an injunction, whether final or interlocutory, made in an Australian proceeding.

Australian judgment means a judgment made or given in an Australian proceeding.

Australian proceeding means a proceeding in which a matter for determination arises under:

                     (a)  section 46A, 155A or 155B of the Trade Practices Act 1974; or

                     (b)  a provision of Part VI or XII of the Trade Practices Act 1974 so far as the provision relates to section 46A, 155A or 155B of that Act; or

                     (c)  this Part;

and includes a part of such a proceeding.

High Court means the High Court of New Zealand.

judgment creditor, in relation to a New Zealand judgment, means the person in whose favour the judgment was made or given, and includes a person in whom the rights under the judgment have become vested by succession, assignment or otherwise.

judgment debtor, in relation to a New Zealand judgment, means the person against whom the judgment was made or given, and includes a person against whom the judgment is enforceable under New Zealand law.

New Zealand injunction means an injunction, whether final or interlocutory, made in a New Zealand proceeding.

New Zealand judgment means a judgment made or given in a New Zealand proceeding.

New Zealand proceeding means a proceeding in which a matter for determination arises under section 36A, 98H or 99A of the Commerce Act 1986 of New Zealand, and includes a part of such a proceeding.

registered, in relation to a New Zealand judgment, means registered under Division 5.


 

Division 2Exercise in New Zealand of jurisdiction by Federal Court

32C  Federal Court sittings in New Zealand etc.

             (1)  If the Federal Court is satisfied, at any stage of an Australian proceeding, that the proceeding could be more conveniently or fairly conducted or continued in New Zealand, the Federal Court may direct that the proceeding be conducted or continued at a place in New Zealand specified in the order.

             (2)  A direction may be subject to such conditions (if any) as are specified in the order.

             (3)  Without limiting subsection (1), judgment may be given in New Zealand in an Australian proceeding.

             (5)  The Federal Court may, for the purposes of an Australian proceeding, exercise in New Zealand any of the powers that the Federal Court is permitted, under New Zealand law, to exercise in New Zealand.

32D  New Zealand counsel entitled to practise in Federal Court in New Zealand

                   A person who is entitled to practise as a barrister, solicitor or both before the High Court of New Zealand is entitled to practice as a barrister, solicitor or both in an Australian proceeding before the Federal Court sitting in New Zealand.

32E  Australian injunction may be made in relation to New Zealand conduct etc.

             (1)  The Federal Court may, in an Australian proceeding, make an order or grant an injunction restraining a person from engaging in conduct, or requiring a person to do an act or thing, in New Zealand.

             (3)  This section does not limit by implication any power that the Federal Court has apart from this section to make an order or grant an injunction.

32F  Service of injunction in New Zealand etc.

                   Subject to the Rules of Court, an Australian injunction or other Australian judgment may be served in New Zealand.


 

Division 3Exercise in Australia of jurisdiction by High Court of New Zealand

32M  High Court of New Zealand sittings in Australia etc.

             (1)  The High Court of New Zealand may conduct or continue a New Zealand proceeding in Australia.

             (2)  Without limiting subsection (1), judgment may be given in Australia in a New Zealand proceeding.

             (4)  The High Court of New Zealand may, for the purposes of a New Zealand proceeding, exercise in Australia all of the powers it has when sitting in New Zealand, except its powers:

                     (a)  to punish for contempt; and

                     (b)  to enforce or execute its judgments or process.

             (5)  Without limiting subsection (4), the High Court of New Zealand may in a New Zealand proceeding, by order:

                     (a)  direct that the proceeding be conducted or continued in private; or

                     (b)  require a person to leave the court; or

                     (c)  prohibit or restrict the publication of evidence given in the proceeding or of the name of a party to, or a witness in, the proceeding.

             (7)  Without limiting subsections (1) to (5):

                     (a)  the Judicature Act 1908 of New Zealand; and

                     (b)  the High Court Rules made by or under that Act that apply to New Zealand proceedings generally;

also apply, by force of this subsection, to the practice and procedure of the High Court of New Zealand in a proceeding that is a New Zealand proceeding for the purposes of this Part so far as the proceeding is conducted or continued in Australia.

             (8)  An order under subsection (5) must be complied with.

             (9)  Subject to the Rules of Court, an order under subsection (5) may be enforced by a Judge of the Federal Court who, for that purpose, may exercise the powers that a Judge may exercise to enforce like orders made by the Federal Court.

           (10)  Without limiting subsection (9), a person who contravenes an order under subsection (5) is in contempt of the Federal Court, and is punishable accordingly, unless the person establishes that the contravention should be excused.

32N  Privileges, protection and immunity of participants in New Zealand proceedings

             (1)  A Judge of the High Court of New Zealand has, at a sitting in Australia of the High Court in a New Zealand proceeding, the same privileges, protection and immunity as a Judge of the Federal Court.

             (2)  A person appearing as a barrister, solicitor or both in a New Zealand proceeding has, at a sitting in Australia of the High Court of New Zealand, the same protection and immunity a barrister has in appearing for a party in a proceeding before the Federal Court.

             (3)  A person appearing as a witness in a New Zealand proceeding has, at a sitting in Australia of the High Court of New Zealand, the same protection as a witness in a proceeding in the Federal Court.

32P  High Court of New Zealand may administer oath in Australia etc.

             (1)  The High Court of New Zealand may, at a sitting in Australia of the High Court in a New Zealand proceeding, administer an oath or affirmation in accordance with the practice and procedure of the High Court.

             (2)  Evidence given by a person on oath or affirmation administered by the High Court of New Zealand under subsection (1) is, for the purposes of section 35 of the Crimes Act 1914, testimony given in a judicial proceeding.

32Q  Service of New Zealand injunctions in Australia etc.

                   A New Zealand injunction or other New Zealand judgment may be served in Australia.


 

Division 4Taking of evidence by Federal Court for High Court of New Zealand

32T  Taking of evidence by Federal Court

             (1)  The High Court of New Zealand may request the Federal Court to obtain evidence in Australia for the High Court for the purposes of a New Zealand proceeding.

             (2)  The Federal Court may, by order, make any provision it considers appropriate for the purpose of obtaining the evidence.

             (3)  An order may require a specified person to take any steps the Federal Court considers appropriate for that purpose.

             (4)  Without limiting subsections (2) and (3), an order may, in particular, make provision:

                     (a)  for the examination of witnesses, either orally or in writing; or

                     (b)  for the production of documents or things; or

                     (c)  for the inspection, photographing, preservation, custody or detention of any property; or

                     (d)  for taking samples of any property and carrying out any experiments on or with any property.

             (5)  Subsection (4) does not prevent the Federal Court from making an order requiring a person to give testimony (either orally or in writing) otherwise than on oath or affirmation if the High Court of New Zealand requests it to do so.

             (6)  A person who is required by an order to attend at any place is entitled to the same amount of conduct money and payment for expenses and loss of time as the person would be entitled on attendance as a witness before the Federal Court.

32U  Privilege of witnesses

             (1)  An order under section 32T must not compel a person to give evidence that the person could not be compelled to give in the New Zealand proceeding concerned.

             (2)  In subsection (1):

give evidence includes:

                     (a)  answer a question; and

                     (b)  produce a document or thing.

32V  Division not to derogate from existing Australian laws

                   This Division is in addition to, and not in derogation of, any other law in force in Australia.


 

Division 5Enforcement of judgments of High Court of New Zealand

32W  Registration of judgment in Federal Court

             (1)  A judgment creditor under a New Zealand judgment may apply to the Federal Court to have the judgment registered in the Federal Court.

             (2)  Subject to this section, the Federal Court must order the judgment to be registered.

             (3)  A New Zealand judgment must not be registered if on the day on which the application is made:

                     (a)  the judgment has been wholly satisfied; or

                     (b)  the judgment could not be enforced in New Zealand.

             (4)  Subject to sections 32X, 32Y and 32Z:

                     (a)  a registered judgment is, for the purposes of enforcement, of the same force and effect; and

                     (b)  proceedings may be brought on the judgment; and

                     (c)  the amount (if any) for which the judgment is registered carries interest; and

                     (d)  the Federal Court has the same control over the enforcement in Australia of the judgment;

as if the judgment had been a judgment originally made or given by the Federal Court acting within its jurisdiction and entered on the day of registration.

             (5)  Subject to subsection (6), if an amount payable under a New Zealand judgment that is to be registered is expressed in New Zealand currency, the judgment is to be registered:

                     (a)  if the judgment creditor has stated in the application that the judgment creditor wishes the judgment to be registered in New Zealand currency—in that currency; or

                     (b)  in any other case—as if it were for an equivalent amount in Australian currency, based on the rate of exchange prevailing on the second business day (the conversion day) before the day on which the application for registration is made.

          (5A)  For the purposes of paragraph (5)(b), the rate of exchange prevailing on the conversion day is the average of the rates at which Australian dollars may be bought in New Zealand currency at:

                     (a)  11 am; or

                     (b)  if another time is prescribed for the purposes of this subsection—that other time;

on that day from 3 authorised foreign exchange dealers selected by the judgment creditor.

          (5B)  The reference in paragraph (5)(b) to a business day is a reference to a day on which the authorised foreign exchange dealers selected by the judgment creditor as mentioned in subsection (5A) publish rates at which Australian dollars may be bought in New Zealand currency.

             (6)  If, on the day of application for registration of a New Zealand judgment under which an amount is payable, the judgment has been partly satisfied, the judgment must not be registered for the whole amount payable under the judgment, but only for the balance remaining payable on that day.

             (7)  In addition to any amount payable under a New Zealand judgment (including any interest that under New Zealand law is due under the judgment up to the time of registration), the judgment is to be registered for the reasonable costs of and incidental to registration, including the costs of obtaining a certified copy of the judgment from the High Court of New Zealand and the costs of obtaining from foreign exchange dealers evidence of the rates at which Australian dollars may be bought in New Zealand currency.

             (8)  In this section:

authorised foreign exchange dealer means a person authorised by a general authority issued by the Reserve Bank of Australia under regulation 38A of the Banking (Foreign Exchange) Regulations to buy and sell foreign currency.

32X  Variation of registered judgment

             (1)  Every judgment of the High Court of New Zealand that varies a registered New Zealand judgment must be registered in the Federal Court and, on registration, this Division applies to the judgment as varied.

             (2)  A registered New Zealand judgment that has been varied by a judgment of the High Court of New Zealand may not be executed, and proceedings may not be taken to enforce such a registered judgment, without the leave of the Federal Court until the varying judgment is registered in the Federal Court.

32Y  Cases in which registration must be set aside

                   The Federal Court must set aside the registration of a judgment, on the application of the judgment debtor, if the Federal Court is satisfied:

                     (a)  that the judgment has been discharged or can no longer be enforced in New Zealand; or

                     (b)  that the judgment has been wholly satisfied; or

                     (c)  that the judgment was not registrable under this Division or was not properly registered; or

                     (d)  that the judgment has been reversed on appeal or otherwise set aside; or

                     (e)  that the judgment relates to a claim for relief for a contravention, or 2 or more contraventions, of section 36A of the Commerce Act 1986 of New Zealand (whether or not it also relates to other claims for relief) and the claim for relief for the contravention has been, or all of those contraventions have been, finally dismissed.

32Z  Stay of enforcement of registered judgment

             (1)  If the Federal Court is satisfied that a judgment debtor under a registered New Zealand judgment:

                     (a)  has applied, or intends to apply, to have the judgment set aside; or

                     (b)  has appealed, or intends to appeal, against the judgment;

the Federal Court may order that enforcement of the judgment in Australia be stayed pending the final determination of the application or appeal, until a specified day or for a specified period.

             (2)  If the Federal Court makes an order on the ground:

                     (a)  that a person intends to apply to have a judgment set aside; or

                     (b)  that a person intends to appeal against a judgment;

the Federal Court must require the person, as a condition of the order, to make the application or bring the appeal by a specified day or within a specified period.

             (3)  Every order is to be made on the condition that the judgment debtor pursues the application or appeal in an expeditious manner.

             (4)  An order may be made on such other conditions, including conditions relating to giving security, as the Federal Court thinks fit.

32ZA  New Zealand judgment not enforceable otherwise than under Division

                   A New Zealand judgment may not be enforced in Australia otherwise than under this Division.

32ZB  Application of rules of private international law

                   This Division has effect in relation to the execution and enforcement of judgments despite any rule of law relating to the jurisdiction of the courts of foreign countries or to public policy.


 

Division 6Miscellaneous

32ZC  Jurisdiction of Federal Court under Part

             (1)  Jurisdiction is conferred on the Federal Court in any matter arising under this Part.

             (2)  Without limiting subsection (1), jurisdiction is conferred on the Federal Court to hear and determine prosecutions for offences against this Part.

             (3)  The jurisdiction conferred on the Federal Court by this section is exclusive of the jurisdiction of any other court.

             (4)  Without limiting subsection (3), prosecutions for offences against this Part may be brought only in the Federal Court.

             (5)  This section has effect subject to section 75 of the Constitution.

             (6)  This section has effect despite anything in any other law of the Commonwealth.

32ZE  Contempt of High Court of New Zealand

                   A person must not, at a sitting of the High Court of New Zealand in Australia:

                     (a)  assault, threaten, intimidate or intentionally insult:

                              (i)  a Judge of the High Court; or

                             (ii)  a Master, Registrar, Deputy Registrar or another officer of the High Court; or

                            (iii) a person appearing as a barrister, a solicitor or both; or

                            (iv)  a witness in the proceedings; or

                     (b)  intentionally interrupt or obstruct the proceedings; or

                     (c)  intentionally disobey an order or direction of the High Court.

Penalty:  Imprisonment for 3 months.

32ZF  Reciprocal arrangements for use of court facilities

             (1)  The Chief Justice of the Federal Court may make arrangements with the Chief Justice of New Zealand for the purposes of giving effect to this Part.

             (2)  Without limiting subsection (1), arrangements may be made:

                     (a)  to enable the Federal Court to sit in New Zealand, for the purposes of Australian proceedings, in court rooms of the High Court of New Zealand or in other places in New Zealand; or

                     (b)  to enable the High Court of New Zealand to sit in Australia, for the purposes of New Zealand proceedings, in court rooms of the Federal Court or in other places in Australia; or

                     (d)  to provide registry facilities and court staff for the purposes of Australian proceedings or New Zealand proceedings.


 

Part IVAppeals to High Court

  

33  Appeals to High Court

             (1)  The jurisdiction of the High Court to hear and determine appeals from judgments of the Court, whether in civil or criminal matters, is subject to the exceptions and regulations prescribed by this section.

             (2)  Except as otherwise provided by another Act, an appeal shall not be brought to the High Court from a judgment of the Court constituted by a single Judge.

However, this subsection does not apply to a judgment of the Court constituted by a single Judge exercising the appellate jurisdiction of the Court in relation to an appeal from a judgment of the Federal Magistrates Court.

             (3)  Except as otherwise provided by another Act, an appeal shall not be brought from a judgment of a Full Court of the Court unless the High Court gives special leave to appeal.

             (4)  An appeal must not be brought from a judgment of the Court constituted by a single Judge exercising the appellate jurisdiction of the Court in relation to an appeal from a judgment of the Federal Magistrates Court unless the High Court gives special leave to appeal.

             (6)  The jurisdiction of the High Court to hear and determine an appeal in accordance with this section shall be exercised by a Full Court of the High Court consisting of not less than 3 Justices.


 

Part IVARepresentative proceedings

Division 1Preliminary

33A  Interpretation

                   In this Part, unless the contrary intention appears:

group member means a member of a group of persons on whose behalf a representative proceeding has been commenced.

representative party means a person who commences a representative proceeding.

representative proceeding means a proceeding commenced under section 33C.

respondent means a person against whom relief is sought in a representative proceeding.

sub‑group member means a person included in a sub‑group established under section 33Q.

sub‑group representative party means a person appointed to be a sub‑group representative party under section 33Q.

33B  Application

                   A proceeding may only be brought under this Part in respect of a cause of action arising after the commencement of the Federal Court of Australia Amendment Act 1991.


 

Division 2Commencement of representative proceeding

33C  Commencement of proceeding

             (1)  Subject to this Part, where:

                     (a)  7 or more persons have claims against the same person; and

                     (b)  the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and

                     (c)  the claims of all those persons give rise to a substantial common issue of law or fact;

a proceeding may be commenced by one or more of those persons as representing some or all of them.

             (2)  A representative proceeding may be commenced:

                     (a)  whether or not the relief sought:

                              (i)  is, or includes, equitable relief; or

                             (ii)  consists of, or includes, damages; or

                            (iii)  includes claims for damages that would require individual assessment; or

                            (iv)  is the same for each person represented; and

                     (b)  whether or not the proceeding:

                              (i)  is concerned with separate contracts or transactions between the respondent in the proceeding and individual group members; or

                             (ii)  involves separate acts or omissions of the respondent done or omitted to be done in relation to individual group members.

33D  Standing

             (1)  A person referred to in paragraph 33C(1)(a) who has a sufficient interest to commence a proceeding on his or her own behalf against another person has a sufficient interest to commence a representative proceeding against that other person on behalf of other persons referred to in that paragraph.

             (2)  Where a person has commenced a representative proceeding, the person retains a sufficient interest:

                     (a)  to continue that proceeding; and

                     (b)  to bring an appeal from a judgment in that proceeding;

even though the person ceases to have a claim against the respondent.

33E  Is consent required to be a group member?

             (1)  The consent of a person to be a group member in a representative proceeding is not required unless subsection (2) applies to the person.

             (2)  None of the following persons is a group member in a representative proceeding unless the person gives written consent to being so:

                     (a)  the Commonwealth, a State or a Territory;

                     (b)  a Minister or a Minister of a State or Territory;

                     (c)  a body corporate established for a public purpose by a law of the Commonwealth, of a State or of a Territory, other than an incorporated company or association; or

                     (d)  an officer of the Commonwealth, of a State or of a Territory, in his or her capacity as such an officer.

33F  Persons under disability

             (1)  It is not necessary for a person under disability to have a next friend or committee merely in order to be a group member.

             (2)  A group member who is under disability may only take a step in the representative proceeding, or conduct part of the proceeding, by his or her next friend or committee, as the case requires.

33G  Representative proceeding not to be commenced in certain circumstances

                   A representative proceeding may not be commenced if the proceeding would be concerned only with claims in respect of which the Court has jurisdiction solely by virtue of the Jurisdiction of Courts (Cross‑vesting) Act 1987 or a corresponding law of a State or Territory.

33H  Originating process

             (1)  An application commencing a representative proceeding, or a document filed in support of such an application, must, in addition to any other matters required to be included:

                     (a)  describe or otherwise identify the group members to whom the proceeding relates; and

                     (b)  specify the nature of the claims made on behalf of the group members and the relief claimed; and

                     (c)  specify the questions of law or fact common to the claims of the group members.

             (2)  In describing or otherwise identifying group members for the purposes of subsection (1), it is not necessary to name, or specify the number of, the group members.

33J  Right of group member to opt out

             (1)  The Court must fix a date before which a group member may opt out of a representative proceeding.

             (2)  A group member may opt out of the representative proceeding by written notice given under the Rules of Court before the date so fixed.

             (3)  The Court, on the application of a group member, the representative party or the respondent in the proceeding, may fix another date so as to extend the period during which a group member may opt out of the representative proceeding.

             (4)  Except with the leave of the Court, the hearing of a representative proceeding must not commence earlier than the date before which a group member may opt out of the proceeding.

33K  Causes of action accruing after commencement of representative proceeding

             (1)  The Court may at any stage of a representative proceeding, on application made by the representative party, give leave to amend the application commencing the representative proceeding so as to alter the description of the group.

             (2)  The description of the group may be altered so as to include a person:

                     (a)  whose cause of action accrued after the commencement of the representative proceeding but before such date as the Court fixes when giving leave; and

                     (b)  who would have been included in the group, or, with the consent of the person would have been included in the group, if the cause of action had accrued before the commencement of the proceeding.

             (3)  The date mentioned in paragraph (2)(a) may be the date on which leave is given or another date before or after that date.

             (4)  Where the Court gives leave under subsection (1), it may also make any other orders it thinks just, including an order relating to the giving of notice to persons who, as a result of the amendment, will be included in the group and the date before which such persons may opt out of the proceeding.

33L  Situation where fewer than 7 group members

                   If, at any stage of a representative proceeding, it appears likely to the Court that there are fewer than 7 group members, the Court may, on such conditions (if any) as it thinks fit:

                     (a)  order that the proceeding continue under this Part; or

                     (b)  order that the proceeding no longer continue under this Part.

33M  Cost of distributing money etc. excessive

                   Where:

                     (a)  the relief claimed in a representative proceeding is or includes payment of money to group members (otherwise than in respect of costs); and

                     (b)  on application by the respondent, the Court concludes that it is likely that, if judgment were to be given in favour of the representative party, the cost to the respondent of identifying the group members and distributing to them the amounts ordered to be paid to them would be excessive having regard to the likely total of those amounts;

the Court may, by order:

                     (c)  direct that the proceeding no longer continue under this Part; or

                     (d)  stay the proceeding so far as it relates to relief of the kind mentioned in paragraph (a).

33N  Order that proceeding not continue as representative proceeding where costs excessive etc.

             (1)  The Court may, on application by the respondent or of its own motion, order that a proceeding no longer continue under this Part where it is satisfied that it is in the interests of justice to do so because:

                     (a)  the costs that would be incurred if the proceeding were to continue as a representative proceeding are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding; or

                     (b)  all the relief sought can be obtained by means of a proceeding other than a representative proceeding under this Part; or

                     (c)  the representative proceeding will not provide an efficient and effective means of dealing with the claims of group members; or

                     (d)  it is otherwise inappropriate that the claims be pursued by means of a representative proceeding.

             (2)  If the Court dismisses an application under this section, the Court may order that no further application under this section be made by the respondent except with the leave of the Court.

             (3)  Leave for the purposes of subsection (2) may be granted subject to such conditions as to costs as the Court considers just.

33P  Consequences of order that proceeding not continue under this Part

                   Where the Court makes an order under section 33L, 33M or 33N that a proceeding no longer continue under this Part:

                     (a)  the proceeding may be continued as a proceeding by the representative party on his or her own behalf against the respondent; and

                     (b)  on the application of a person who was a group member for the purposes of the proceeding, the Court may order that the person be joined as an applicant in the proceeding.

33Q  Determination of issues where not all issues are common

             (1)  If it appears to the Court that determination of the issue or issues common to all group members will not finally determine the claims of all group members, the Court may give directions in relation to the determination of the remaining issues.

             (2)  In the case of issues common to the claims of some only of the group members, the directions given by the Court may include directions establishing a sub‑group consisting of those group members and appointing a person to be the sub‑group representative party on behalf of the sub‑group members.

             (3)  Where the Court appoints a person other than the representative party to be a sub‑group representative party, that person, and not the representative party, is liable for costs associated with the determination of the issue or issues common to the sub‑group members.

33R  Individual issues

             (1)  In giving directions under section 33Q, the Court may permit an individual group member to appear in the proceeding for the purpose of determining an issue that relates only to the claims of that member.

             (2)  In such a case, the individual group member, and not the representative party, is liable for costs associated with the determination of the issue.

33S  Directions relating to commencement of further proceedings

                   Where an issue cannot properly or conveniently be dealt with under section 33Q or 33R, the Court may:

                     (a)  if the issue concerns only the claim of a particular member—give directions relating to the commencement and conduct of a separate proceeding by that member; or

                     (b)  if the issue is common to the claims of all members of a sub‑group—give directions relating to the commencement and conduct of a representative proceeding in relation to the claims of those members.

33T  Adequacy of representation

             (1)  If, on an application by a group member, it appears to the Court that a representative party is not able adequately to represent the interests of the group members, the Court may substitute another group member as representative party and may make such other orders as it thinks fit.

             (2)  If, on an application by a sub‑group member, it appears to the Court that a sub‑group representative party is not able adequately to represent the interests of the sub‑group members, the Court may substitute another person as sub‑group representative party and may make such other orders as it thinks fit.

33U  Stay of execution in certain circumstances

                   Where a respondent in a representative proceeding commences a proceeding in the Court against a group member, the Court may order a stay of execution in respect of any relief awarded to the group member in the representative proceeding until the other proceeding is determined.

33V  Settlement and discontinuance—representative proceeding

             (1)  A representative proceeding may not be settled or discontinued without the approval of the Court.

             (2)  If the Court gives such an approval, it may make such orders as are just with respect to the distribution of any money paid under a settlement or paid into the Court.

33W  Settlement of individual claim of representative party

             (1)  A representative party may, with leave of the Court, settle his or her individual claim in whole or in part at any stage of the representative proceeding.

             (2)  A representative party who is seeking leave to settle, or who has settled, his or her individual claim may, with leave of the Court, withdraw as representative party.

             (3)  Where a person has sought leave to withdraw as representative party under subsection (2), the Court may, on the application of a group member, make an order for the substitution of another group member as representative party and may make such other orders as it thinks fit.

             (4)  Before granting a person leave to withdraw as a representative party:

                     (a)  the Court must be satisfied that notice of the application has been given to group members in accordance with subsection 33X(1) and in sufficient time for them to apply to have another person substituted as the representative party; and

                     (b)  any application for the substitution of another group member as a representative party has been determined.

             (5)  The Court may grant leave to a person to withdraw as representative party subject to such conditions as to costs as the Court considers just.


 

Division 3Notices

33X  Notice to be given of certain matters

             (1)  Notice must be given to group members of the following matters in relation to a representative proceeding:

                     (a)  the commencement of the proceeding and the right of the group members to opt out of the proceeding before a specified date, being the date fixed under subsection 33J(1);

                     (b)  an application by the respondent in the proceeding for the dismissal of the proceeding on the ground of want of prosecution;

                     (c)  an application by a representative party seeking leave to withdraw under section 33W as representative party.

             (2)  The Court may dispense with compliance with any or all of the requirements of subsection (1) where the relief sought in a proceeding does not include any claim for damages.

             (3)  If the Court so orders, notice must be given to group members of the bringing into Court of money in answer to a cause of action on which a claim in the representative proceeding is founded.

             (4)  Unless the Court is satisfied that it is just to do so, an application for approval of a settlement under section 33V must not be determined unless notice has been given to group members.

             (5)  The Court may, at any stage, order that notice of any matter be given to a group member or group members.

             (6)  Notice under this section must be given as soon as practicable after the happening of the event to which the notice relates.

33Y  Notices—ancillary provisions

             (1)  This section is concerned with notices under section 33X.

             (2)  The form and content of a notice must be as approved by the Court.

             (3)  The Court must, by order, specify:

                     (a)  who is to give the notice; and

                     (b)  the way in which the notice is to be given;

and the order may include provision:

                     (c)  directing a party to provide information relevant to the giving of the notice; and

                     (d)  relating to the costs of notice.

             (4)  An order under subsection (3) may require that notice be given by means of press advertisement, radio or television broadcast, or by any other means.

             (5)  The Court may not order that notice be given personally to each group member unless it is satisfied that it is reasonably practicable, and not unduly expensive, to do so.

             (6)  A notice that concerns a matter for which the Court’s leave or approval is required must specify the period within which a group member or other person may apply to the Court, or take some other step, in relation to the matter.

             (7)  A notice that includes or concerns conditions must specify the conditions and the period, if any, for compliance.

             (8)  The failure of a group member to receive or respond to a notice does not affect a step taken, an order made, or a judgment given, in a proceeding.


 

Division 4Judgment etc.

33Z  Judgment—powers of the Court

             (1)  The Court may, in determining a matter in a representative proceeding, do any one or more of the following:

                     (a)  determine an issue of law;

                     (b)  determine an issue of fact;

                     (c)  make a declaration of liability;

                     (d)  grant any equitable relief;

                     (e)  make an award of damages for group members, sub‑group members or individual group members, being damages consisting of specified amounts or amounts worked out in such manner as the Court specifies;

                      (f)  award damages in an aggregate amount without specifying amounts awarded in respect of individual group members;

                     (g)  make such other order as the Court thinks just.

             (2)  In making an order for an award of damages, the Court must make provision for the payment or distribution of the money to the group members entitled.

             (3)  Subject to section 33V, the Court is not to make an award of damages under paragraph (1)(f) unless a reasonably accurate assessment can be made of the total amount to which group members will be entitled under the judgment.

             (4)  Where the Court has made an order for the award of damages, the Court may give such directions (if any) as it thinks just in relation to:

                     (a)  the manner in which a group member is to establish his or her entitlement to share in the damages; and

                     (b)  the manner in which any dispute regarding the entitlement of a group member to share in the damages is to be determined.

33ZA  Constitution etc. of fund

             (1)  Without limiting the operation of subsection 33Z(2), in making provision for the distribution of money to group members, the Court may provide for:

                     (a)  the constitution and administration of a fund consisting of the money to be distributed; and

                     (b)  either:

                              (i)  the payment by the respondent of a fixed sum of money into the fund; or

                             (ii)  the payment by the respondent into the fund of such instalments, on such terms, as the Court directs to meet the claims of group members; and

                     (c)  entitlements to interest earned on the money in the fund.

             (2)  The costs of administering a fund are to be borne by the fund, or by the respondent in the representative proceeding, as the Court directs.

             (3)  Where the Court orders the constitution of a fund mentioned in subsection (1), the order must:

                     (a)  require notice to be given to group members in such manner as is specified in the order; and

                     (b)  specify the manner in which a group member is to make a claim for payment out of the fund and establish his or her entitlement to the payment; and

                     (c)  specify a day (which is 6 months or more after the day on which the order is made) on or before which the group members are to make a claim for payment out of the fund; and

                     (d)  make provision in relation to the day before which the fund is to be distributed to group members who have established an entitlement to be paid out of the fund.

             (4)  The Court may allow a group member to make a claim after the day fixed under paragraph (3)(c) if:

                     (a)  the fund has not already been fully distributed; and

                     (b)  it is just to do so.

             (5)  On application by the respondent in the representative proceeding after the day fixed under paragraph (3)(d), the Court may make such orders as are just for the payment from the fund to the respondent of the money remaining in the fund.

33ZB  Effect of judgment

                   A judgment given in a representative proceeding:

                     (a)  must describe or otherwise identify the group members who will be affected by it; and

                     (b)  binds all such persons other than any person who has opted out of the proceeding under section 33J.


 

Division 5Appeals

33ZC  Appeals to the Court

             (1)  The following appeals under Division 2 of Part III from a judgment of the Court in a representative proceeding may themselves be brought as representative proceedings:

                     (a)  an appeal by the representative party on behalf of group members and in respect of the judgment to the extent that it relates to issues common to the claims of group members;

                     (b)  an appeal by a sub‑group representative party on behalf of sub‑group members in respect of the judgment to the extent that it relates to issues common to the claims of sub‑group members.

             (2)  The parties to an appeal referred to in paragraph (1)(a) are the representative party, as the representative of the group members, and the respondent.

             (3)  The parties to an appeal referred to in paragraph (1)(b) are the sub‑group representative party, as the representative of the sub‑group members, and the respondent.

             (4)  On an appeal by the respondent in a representative proceeding, other than an appeal referred to in subsection (5), the parties to the appeal are:

                     (a)  in the case of an appeal in respect of the judgment generally—the respondent and the representative party as the representative of the group members; and

                     (b)  in the case of an appeal in respect of the judgment to the extent that it relates to issues common to the claims of sub‑group members—the respondent and the sub‑group representative party as the representative of the sub‑group members.

             (5)  The parties to an appeal in respect of the determination of an issue that relates only to a claim of an individual group member are that group member and the respondent.

             (6)  If the representative party or the sub‑group representative party does not bring an appeal within the time provided for instituting appeals, another member of the group or sub‑group may, within a further 21 days, bring an appeal as representing the group members or sub‑group members, as the case may be.

             (7)  Where an appeal is brought from a judgment of the Court in a representative proceeding, the Court may direct that notice of the appeal be given to such person or persons, and in such manner, as the Court thinks appropriate.

             (8)  Section 33J does not apply to an appeal proceeding.

             (9)  The notice instituting an appeal in relation to issues that are common to the claims of group members or sub‑group members must describe or otherwise identify the group members or sub‑group members, as the case may be, but need not specify the names or number of those members.

33ZD  Appeals to the High Court—extended operation of sections 33ZC and 33ZF

             (1)  Sections 33ZC and 33ZF apply in relation to appeals to the High Court from judgments of the Court in representative proceedings in the same way as they apply to appeals to the Court from such judgments.

             (2)  Nothing in subsection (1) limits the operation of section 33 whether in relation to appeals from judgments of the Court in representative proceedings or otherwise.


 

Division 6Miscellaneous

33ZE  Suspension of limitation periods

             (1)  Upon the commencement of a representative proceeding, the running of any limitation period that applies to the claim of a group member to which the proceeding relates is suspended.

             (2)  The limitation period does not begin to run again unless either the member opts out of the proceeding under section 33J or the proceeding, and any appeals arising from the proceeding, are determined without finally disposing of the group member’s claim.

33ZF  General power of Court to make orders

             (1)  In any proceeding (including an appeal) conducted under this Part, the Court may, of its own motion or on application by a party or a group member, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding.

             (2)  Subsection (1) does not limit the operation of section 22.

33ZG  Saving of rights, powers etc.

                   Except as otherwise provided by this Part, nothing in this Part affects:

                     (a)  the commencement or continuance of any action of a representative character commenced otherwise than under this Part; or

                     (b)  the Court’s powers under provisions other than this Part, for example, its powers in relation to a proceeding in which no reasonable cause of action is disclosed or that is oppressive, vexatious, frivolous or an abuse of the process of the Court; or

                     (c)  the operation of any law relating to:

                              (i)  vexatious litigants (however described); or

                             (ii)  proceedings of a representative character; or

                            (iii)  joinder of parties; or

                            (iv)  consolidation of proceedings; or

                             (v)  security for costs.

33ZH  Special provision relating to claims under Part VI of the Trade Practices Act 1974

             (1)  For the purposes of subsection 87(1) of the Trade Practices Act 1974, a group member in a representative proceeding is to be taken to be a party to the proceeding.

             (2)  An application under subsection 87(1A) of the Trade Practices Act 1974 by a representative party in a representative proceeding is to be taken to be an application by the representative party and all the group members.

33ZJ  Reimbursement of representative party’s costs

             (1)  Where the Court has made an award of damages in a representative proceeding, the representative party or a sub‑group representative party, or a person who has been such a party, may apply to the Court for an order under this section.

             (2)  If, on an application under this section, the Court is satisfied that the costs reasonably incurred in relation to the representative proceeding by the person making the application are likely to exceed the costs recoverable by the person from the respondent, the Court may order that an amount equal to the whole or a part of the excess be paid to that person out of the damages awarded.

             (3)  On an application under this section, the Court may also make any other order it thinks just.


 

Part VRegistries, officers and seal

  

34  Registries  

             (1)  The Governor‑General shall cause such Registries of the Court to be established as he or she thinks fit, but so that at least one Registry shall be established in each State, in the Australian Capital Territory and in the Northern Territory.

             (2)  The Governor‑General shall designate one of the Registries as the Principal Registry, and each other Registry shall be a District Registry in respect of such District as the Governor‑General specifies.

35  Officers of Court

                   In relation to a proceeding under this Act, the officers of the Court have such duties, powers and functions as are given by this Act or the Rules of Court or by the Chief Justice.

35A  Powers of Registrars

             (1)  Subject to subsection (2), the following powers of the Court may, if the Court or a Judge so directs, be exercised by a Registrar:

                     (a)  the power to dispense with the service of any process of the Court;

                     (b)  the power to make orders in relation to substituted service;

                     (c)  the power to make orders in relation to discovery, inspection and production of documents in the possession, power or custody of a party to proceedings in the Court or of any other person;

                     (d)  the power to make orders in relation to interrogatories;

                     (e)  the power, in proceedings in the Court, to make an order adjourning the hearing of the proceedings;

                      (f)  the power to make an order as to costs;

                     (g)  the power to make an order exempting a party to proceedings in the Court from compliance with a provision of the Rules of Court;

                     (h)  a power of the Court prescribed by Rules of Court.

             (2)  A Registrar shall not exercise the powers referred to in paragraph (1)(f) except in relation to costs of or in connection with an application heard by a Registrar.

             (3)  The provisions of this Act and the Rules of Court that relate to the exercise by the Court of a power that is, by virtue of subsection (1), exercisable by a Registrar apply in relation to an exercise of the power by a Registrar under this section as if references in those provisions to the Court were references to the Registrar.

             (4)  Notwithstanding any other provision of this Act and any provision of the Public Service Act 1999 or of any other law, a Registrar is not subject to the direction or control of any person or body in relation to the manner in which he or she exercises powers pursuant to subsection (1).

             (5)  A party to proceedings in which a Registrar has exercised any of the powers of the Court under subsection (1) may, within the time prescribed by the Rules of Court, or within any further time allowed in accordance with the Rules of Court, apply to the Court to review that exercise of power.

             (6)  The Court may, on application under subsection (5) or of its own motion, review an exercise of power by a Registrar pursuant to this section and may make such order or orders as it thinks fit with respect to the matter with respect to which the power was exercised.

             (7)  Where an application for the exercise of a power referred to in subsection (1) is being heard by a Registrar and:

                     (a)  the Registrar considers that it is not appropriate for the application to be determined by a Registrar acting under this section; or

                     (b)  an application is made to the Registrar to arrange for the first‑mentioned application to be determined by the Court;

he or she shall not hear, or continue to hear, the application and shall make appropriate arrangements for the application to be heard by the Court.

             (8)  In this section, Registrar means the Registrar, a Deputy Registrar, a District Registrar or a Deputy District Registrar of the Court.

36  Seal of Court

             (1)  The Court shall have a seal, the design of which shall be determined by the Attorney‑General.

             (2)  The seal of the Court shall be kept at the Principal Registry in such custody as the Chief Justice directs.

             (3)  The Registrar shall have in his or her custody a stamp the design of which shall, as nearly as practicable, be the same as the design of the seal of the Court, with the addition of the words “Principal Registry”.

             (4)  The District Registrar in respect of each District Registry shall have in his or her custody a stamp the design of which shall, as nearly as practicable, be the same as the design of the seal of the Court, with the addition of such words as the Chief Justice directs for the purpose of relating the stamp to that District Registry.

             (5)  A document or a copy of a document marked with a stamp referred to in subsection (3) or (4) is as valid and effectual as if it had been sealed with the seal of the Court.

             (6)  The seal of the Court and the stamps referred to in this section shall be affixed to documents as provided by this or any other Act or by the Rules of Court.

37  Writs etc.

             (1)  All writs, commissions and process issued from the Court shall be:

                     (a)  under the seal of the Court; and

                     (b)  signed (including by way of electronic signature) by the Registrar, a District Registrar or an officer acting with the authority of the Registrar or a District Registrar.

             (2)  For the purposes of paragraph (1)(b), a document is taken to be signed by the Registrar if the electronic signature of the Registrar is applied to the document by an officer acting with the authority of the Registrar.

             (3)  In this section:

electronic signature of a person means the person’s unique identification in an electronic form that is approved by the Registrar.


 

Part VAAssessors

  

37A  Appointment of assessors

             (1)  There are to be assessors to assist the Court in the exercise of its jurisdiction under the Native Title Act 1993.

             (2)  The assessors are to be appointed by the Governor‑General.

             (3)  An assessor must be appointed either as a full‑time assessor or as a part‑time assessor.

             (4)  As far as is practicable, persons appointed as assessors are to be selected from Aboriginal peoples or Torres Strait Islanders.

37B  Qualifications for appointment

                   A person is not to be appointed as an assessor unless the person has, in the opinion of the Governor‑General, special knowledge in relation to:

                     (a)  Aboriginal or Torres Strait Islander societies; or

                     (b)  land management; or

                     (c)  dispute resolution; or

                     (d)  any other class of matters considered by the Governor‑General to have substantial relevance to the duties of an assessor.

37C  Remuneration and allowances

             (1)  An assessor is to be paid the remuneration determined by the Remuneration Tribunal. If there is no determination in force, the assessor is to be paid such remuneration as is prescribed.

             (2)  An assessor is to be paid such allowances as are prescribed.

             (3)  Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973.

37D  Terms and conditions of appointment

             (1)  An assessor is appointed for the period (not longer than 5 years) specified in the instrument of appointment, but is eligible for reappointment.

             (3)  An assessor holds office on such terms and conditions (if any) in relation to matters not provided for by this Act as are prescribed.

37E  Oath or affirmation of office

                   A person who is appointed or re‑appointed as an assessor must, before beginning to discharge the duties of the office, take, before the Chief Justice or a Judge of the Court, an oath or affirmation in the following form:

“I, ...................................................................... , do swear that I will well and truly serve in the office of assessor and that I will do right to all manner of people according to law, without fear or favour, affection or ill will, So Help Me God!”

Or

“I, ...................................................................... , do solemnly and sincerely promise and declare that (as above, omitting the words ‘So Help Me God’).”.

37F  Leave of absence

             (1)  A full‑time assessor has the recreation leave entitlements determined by the Remuneration Tribunal.

             (2)  The Minister may grant a full‑time assessor leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.

37G  Resignation

                   An assessor may resign by giving a signed notice of resignation to the Governor‑General.

37H  Termination of appointment—bankruptcy etc.

                   The Governor‑General must terminate the appointment of an assessor if the assessor:

                     (a)  becomes bankrupt; or

                     (b)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                     (c)  compounds with his or her creditors; or

                     (d)  makes an assignment of his or her remuneration for the benefit of his or her creditors.

37I  Termination of appointment—misbehaviour or incapacity

             (1)  The Governor‑General may terminate the appointment of an assessor if an address praying for the termination of the assessor’s appointment, on the ground of proved misbehaviour or of physical or mental incapacity, is presented to the Governor‑General by each House of the Parliament in the same session of the Parliament.

             (2)  The Governor‑General may, with the consent of an assessor who is:

                     (a)  an eligible employee for the purposes of the Superannuation Act 1976; or

                     (b)  a member of the superannuation scheme established by deed under the Superannuation Act 1990;

retire the assessor from office on the ground of incapacity.

             (3)  In spite of anything contained in this Act, an assessor who:

                     (a)  is an eligible employee for the purposes of the Superannuation Act 1976; and

                     (b)  has not reached his or her retiring age within the meaning of that Act;

is not capable of being retired from office on the ground of invalidity within the meaning of Part IVA of that Act unless the Commonwealth Superannuation Board of Trustees No. 2 has given a certificate under section 54C of that Act.

             (4)  In spite of anything contained in this Act, an assessor who:

                     (a)  is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and

                     (b)  is under 60 years of age;

is not capable of being retired from office on the ground of invalidity within the meaning of that Act unless the Commonwealth Superannuation Board of Trustees No. 1 has given a certificate under section 13 of that Act.

37J  Suspension of assessors—misbehaviour or incapacity

             (1)  The Governor‑General may suspend an assessor from office on the ground of misbehaviour or of physical or mental incapacity.

             (2)  If the Governor‑General suspends an assessor from office, the Minister must cause a statement of the ground of the suspension to be laid before each House of the Parliament within 7 sitting days of that House after the suspension.

             (3)  If such a statement is laid before a House of the Parliament, that House may, within 15 sitting days of that House after the day on which the statement is laid before it, by resolution, declare that the assessor’s appointment should be terminated.

             (4)  If each House of the Parliament passes the resolution in that way, the Governor‑General must terminate the assessor’s appointment.

             (5)  If, at the end of 15 sitting days of a House of the Parliament after the day on which the statement is laid before that House, that House has not passed the resolution, the suspension terminates.

             (6)  The suspension of an assessor from office under this section does not affect any entitlement of the assessor to be paid remuneration and allowances.

37K  Outside employment

             (1)  Except with the consent of the Minister, a full‑time assessor must not engage in paid employment outside the duties of his or her office.

             (2)  The reference in subsection (1) to paid employment does not include service in the Defence Force.

Note:          An assessor will be taken to be performing the functions of his or her office as assessor if he or she is performing the functions of a member of the National Native Title Tribunal.

37L  Disclosure of interests

             (1)  An assessor who has a conflict of interest in relation to proceedings must disclose the matters giving rise to that conflict to the Chief Justice and the parties.

             (2)  The assessor must not take part in the proceedings or exercise any powers in relation to the proceedings unless the Chief Justice consents.

             (3)  For the purposes of this section, an assessor has a conflict of interest in relation to proceedings if the assessor has any interest, pecuniary or otherwise, that could conflict with the proper performance of the assessor’s functions in relation to the proceedings.


 

Part VIGeneral 

  

38  Practice and procedure

             (1)  Subject to any provision made by or under this or any other Act with respect to practice and procedure, the practice and procedure of the Court shall be in accordance with Rules of Court made under this Act.

             (2)  In so far as the provisions for the time being applicable in accordance with subsection (1) are insufficient, the Rules of the High Court, as in force for the time being, apply, mutatis mutandis, so far as they are capable of application and subject to any directions of the Court or a Judge, to the practice and procedure of the Court.

             (3)  In this section, practice and procedure includes all matters in relation to which Rules of Court may be made under this Act.

39  Trial without jury

                   In every suit in the Court, unless the Court or a Judge otherwise orders, the trial shall be by a Judge without a jury.

40  Power of Court to direct trial of issues with a jury

                   The Court or a Judge may, in any suit in which the ends of justice appear to render it expedient to do so, direct the trial with a jury of the suit or of an issue of fact, and may for that purpose make all such orders, issue all such writs and cause all such proceedings to be had and taken as the Court or Judge thinks necessary, and upon the finding of the jury the Court may give such decision and pronounce such judgment as the case requires.

41  Juries

             (1)  Subject to this section and to any other law of the Commonwealth, the laws in force in a State or Territory relating to:

                     (a)  the qualification of jurors;

                     (b)  the preparation of jury panels;

                     (c)  the summoning, attendance and impanelling of juries;

                     (d)  the number of jurors;

                     (e)  the right of challenge;

                      (f)  the discharge of juries;

                     (g)  the disagreement of jurors;

                     (h)  the remuneration of jurors; and

                      (i)  other matters concerning jurors after they have been summoned, appointed or sworn;

that apply for the purposes of the trial of civil proceedings in the Supreme Court of that State or Territory extend and shall be applied in civil proceedings in which a trial is had with a jury in the Court in that State or Territory, and for the purposes of such a trial the lists of jurors made for the purposes of the Supreme Court of the State or Territory shall be deemed to have been made as well for the purposes of the Court.

             (2)  The precept for a jury shall be issued by the Registrar or such other officer of the Court as the Court or a Judge directs, and the Sheriff shall prepare the jury panels and summon jurors.

             (3)  The amounts required for the remuneration of jurors in accordance with this section are payable out of moneys provided by the Parliament.

42  Offences in relation to jurors

             (1)  A person who has been served with a summons to attend as a juror or otherwise lawfully appointed to serve as a juror shall not:

                     (a)  fail to attend in accordance with the summons or appointment; or

                     (b)  having attended in accordance with the summons or appointment, withdraw himself or herself from the presence of the Court, without the permission of the Sheriff, before being discharged or excused by a Judge or the Sheriff.

Penalty:  $200 or imprisonment for 1 month.

          (1A)  Subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

          (1B)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1B) (see subsection 13.3(3) of the Criminal Code).

             (2)  A person shall not personate a juror with the intention of sitting as that person on a jury.

Penalty:  $1,000 or imprisonment for 3 months.

             (3)  A person shall not:

                     (a)  corrupt a juror;

                     (b)  except in accordance with this Act, make or promise a payment to a juror, or confer or promise to confer any other benefit on a juror, in relation to his or her service as a juror, other than a payment of the ordinary remuneration of the juror’s employment; or

                     (c)  being a juror, accept such a payment or benefit.

Penalty: Imprisonment for 5 years.

             (4)  In this section, juror includes a person whose name is on a jury panel.

43  Costs

             (1)  Subject to subsection (1A), the Court or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs shall not be awarded.

          (1A)  In a representative proceeding commenced under Part IVA or a proceeding of a representative character commenced under any other Act that authorises the commencement of a proceeding of that character, the Court or Judge may not award costs against a person on whose behalf the proceeding has been commenced (other than a party to the proceeding who is representing such a person) except as authorised by:

                     (a)  in the case of a representative proceeding commenced under Part IVA—section 33Q or 33R; or

                     (b)  in the case of a proceeding of a representative character commenced under another Act—any provision in that Act.

             (2)  Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge.

44  Oaths and affirmations

             (1)  A Judge may require and administer all necessary oaths and affirmations.

             (2)  The Registrar may, by writing signed by him or her, authorise:

                     (a)  a Deputy Registrar, a District Registrar or a Deputy District Registrar of the Court; or

                     (b)  a member of the Staff of a Registry of the Court;

to administer oaths and affirmations for the purposes of the Court.

45  Swearing of affidavits

             (1)  An affidavit to be used in a proceeding in the Court may be sworn within the Commonwealth or a Territory before:

                     (a)  a Judge of the Court, the Registrar, a Deputy Registrar, a District Registrar, a justice of the peace, a commissioner for affidavits or a commissioner for declarations; or

                     (b)  a person not mentioned in paragraph (a) who is authorised to administer oaths for the purposes of the Court or for the purposes of the High Court or the Supreme Court of a State or Territory.

             (2)  An affidavit to be used in a proceeding in the Court may be sworn at a place outside the Commonwealth and the Territories before:

                     (a)  a Commissioner of the High Court authorized to administer oaths in that place for the purposes of the High Court; or

                     (b)  a commissioner of the Supreme Court of a State or Territory for taking affidavits empowered and authorized to act in that place; or

                     (c)  an Australian Diplomatic Officer or an Australian Consular Officer, as defined by the Consular Fees Act 1955, exercising his or her function in that place; or

                    (ca)  an employee of the Commonwealth who is:

                              (i)  authorised under paragraph 3(c) of the Consular Fees Act 1955; and

                             (ii)  exercising his or her function in that place; or

                    (cb)  an employee of the Australian Trade Commission who is:

                              (i)  authorised under paragraph 3(d) of the Consular Fees Act 1955; and

                             (ii)  exercising his or her function in that place; or

                     (d)  a notary public exercising his or her function in that place; or

                     (e)  a person qualified to administer an oath in that place, being a person certified by the person mentioned in any of paragraphs (b), (c), (ca), (cb) and (d), or by the superior court of that place to be so qualified.

             (3)  An affidavit sworn outside the Commonwealth and the Territories otherwise than before a person referred to in subsection (2) may be used in a proceeding in the Court in circumstances provided by the Rules of Court.

46  Orders and commissions for examination of witnesses

                   The Court or a Judge may, for the purposes of any proceeding before it or him or her:

                     (a)  order the examination of a person upon oath before the Court, a Judge, an officer of the Court or other person, at any place within Australia; or

                     (b)  order that a commission issue to a person, either within or beyond Australia, authorizing him or her to take the testimony on oath of a person;

and the Court or a Judge may:

                     (c)  by the same or a subsequent order, give any necessary directions concerning the time, place and manner of the examination; and

                     (d)  empower any party to the proceeding to give in evidence in the proceeding the testimony so taken on such terms (if any) as the Court or Judge directs.

47  Oral, video link, telephone and affidavit evidence

             (1)  In a proceeding, not being the trial of a cause, testimony shall be given by affidavit or as otherwise directed or allowed by the Court or a Judge.

Note:          For testimony etc. by video link, audio link or other appropriate means, see sections 47A to 47F.

             (2)  At the trial of a cause, proof may be given by affidavit of the service of a document in or incidental to the proceedings in the cause or of the signature of a party to the cause or of his or her solicitor to such a document.

             (3)  The Court or a Judge may at any time, for sufficient reason and on such conditions (if any) as the Court or Judge thinks necessary in the interests of justice, direct or allow proof by affidavit at the trial of a cause to such extent as the Court or Judge thinks fit.

             (4)  Notwithstanding any order under subsection (3), if a party to a cause desires in good faith that the maker of an affidavit (other than an affidavit referred to in subsection (2)) proposed to be used in the cause be cross‑examined with respect to the matters in the affidavit, the affidavit may not be used in the cause unless that person appears as a witness for such cross‑examination or the Court, in its discretion, permits the affidavit to be used without the person so appearing.

             (5)  If the parties to a cause so agree and the Court does not otherwise order, testimony at the trial of the cause may be given by affidavit.

             (6)  Subject to this section and section 47A and without prejudice to any other law that would, if this subsection had not been enacted, expressly permit any testimony to be otherwise given, testimony at the trial of causes shall be given orally in court.

Note:          For testimony etc. by video link, audio link or other appropriate means, see sections 47A to 47F.

47A  Testimony by video link, audio link or other appropriate means

             (1)  The Court or a Judge may, for the purposes of any proceeding, direct or allow testimony to be given by video link, audio link or other appropriate means.

Note:          See also section 47C.

             (2)  The testimony must be given on oath or affirmation unless:

                     (a)  the person giving the testimony is in a foreign country; and

                     (b)  either:

                              (i)  the law in force in that country does not permit the person to give testimony on oath or affirmation for the purposes of the proceeding; or

                             (ii)  the law in force in that country would make it inconvenient for the person to give testimony on oath or affirmation for the purposes of the proceeding; and

                     (c)  the Court or the Judge is satisfied that it is appropriate for the testimony to be given otherwise than on oath or affirmation.

             (3)  If the testimony is given otherwise than on oath or affirmation, the Court or the Judge is to give the testimony such weight as the Court or the Judge thinks fit in the circumstances.

             (4)  The power conferred on the Court or a Judge by subsection (1) may be exercised:

                     (a)  on the application of a party to the proceedings; or

                     (b)  on the Court’s or Judge’s own initiative.

             (5)  This section applies whether the person giving testimony is in or outside Australia, but does not apply if the person giving testimony is in New Zealand.

Note:          See the Evidence and Procedure (New Zealand) Act 1994.

47B  Appearances or submissions by video link, audio link or other appropriate means

             (1)  The Court or a Judge may, for the purposes of any proceeding, direct or allow a person:

                     (a)  to appear before the Court or the Judge; or

                     (b)  to make a submission to the Court or the Judge;

by way of video link, audio link or other appropriate means.

Note:          See also section 47C.

             (2)  The power conferred on the Court or a Judge by subsection (1) may be exercised:

                     (a)  on the application of a party to the proceedings; or

                     (b)  on the Court’s or Judge’s own initiative.

             (3)  This section applies whether the person appearing or making the submission is in or outside Australia, but does not apply if the person appearing or making the submission is in New Zealand.

Note:          See the Evidence and Procedure (New Zealand) Act 1994.

47C  Conditions for use of video links, audio links or other appropriate means

Video link

             (1)  The Court or a Judge must not exercise the power conferred by subsection 47A(1) or section 47B in relation to a video link unless the Court or the Judge is satisfied that the following conditions are met in relation to the video link:

                     (a)  the courtroom or other place where the Court or the Judge is sitting is equipped with facilities (for example, television monitors) that enable all eligible persons present in that courtroom or place to see and hear the person (the remote person) who is:

                              (i)  giving the testimony; or

                             (ii)  appearing; or

                            (iii)  making the submission;

                            by way of the video link;

                     (b)  the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom or other place where the Court or the Judge is sitting;

                     (c)  such other conditions (if any) as are prescribed by the Rules of Court in relation to the video link;

                     (d)  such other conditions (if any) as are imposed by the Court or the Judge.

             (2)  The conditions that may be prescribed by the Rules of Court in accordance with paragraph (1)(c) include conditions relating to:

                     (a)  the form of the video link; and

                     (b)  the equipment, or class of equipment, used to establish the link; and

                     (c)  the layout of cameras; and

                     (d)  the standard of transmission; and

                     (e)  the speed of transmission; and

                      (f)  the quality of communication.

Audio link

             (3)  The Court or a Judge must not exercise the power conferred by subsection 47A(1) or section 47B in relation to an audio link unless the Court or the Judge is satisfied that the following conditions are met in relation to the audio link:

                     (a)  the courtroom or other place where the Court or the Judge is sitting is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that courtroom or place to hear the person (the remote person) who is:

                              (i)  giving the testimony; or

                             (ii)  appearing; or

                            (iii)  making the submission;

                            by way of the audio link;

                     (b)  the place at which the remote person is located is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that place to hear each eligible person who is present in the courtroom or other place where the Court or the Judge is sitting;

                     (c)  such other conditions (if any) as are prescribed by the Rules of Court in relation to the audio link;

                     (d)  such other conditions (if any) as are imposed by the Court or the Judge.

             (4)  The conditions that may be prescribed by the Rules of Court in accordance with paragraph (3)(c) include conditions relating to:

                     (a)  the form of the audio link; and

                     (b)  the equipment, or class of equipment, used to establish the audio link; and

                     (c)  the standard of transmission; and

                     (d)  the speed of transmission; and

                     (e)  the quality of communication.

Other appropriate means

             (5)  The Court or a Judge must not exercise the power conferred by subsection 47A(1) or section 47B in relation to an appropriate means other than video link or audio link unless the Court or the Judge is satisfied that the following conditions are met in relation to that means:

                     (a)  the conditions (if any) as are prescribed by the Rules of Court in relation to that means;

                     (b)  such other conditions (if any) as are imposed by the Court or the Judge.

Eligible persons

             (6)  For the purposes of the application of this section to a particular proceeding, eligible persons are such persons as the Court or a Judge considers should be treated as eligible persons for the purposes of that proceeding.

47D  Putting documents to a person by video link, audio link or other appropriate means

                   If, in the course of an examination or appearance of a person by video link, audio link or other appropriate means in accordance with this Part, it is necessary to put a document to the person, the Court or a Judge may direct or allow the document to be put to the person:

                     (a)  if the document is physically present in the courtroom or other place where the Court or the Judge is sitting:

                              (i)  by causing a copy of the document to be transmitted to the place where the person is located; and

                             (ii)  by causing the transmitted copy to be put to the person; or

                     (b)  if the document is physically present in the place where the person is located:

                              (i)  by causing the document to be put to the person; and

                             (ii)  by causing a copy of the document to be transmitted to the courtroom or other place where the Court or the Judge is sitting.

47E  Administration of oaths and affirmations

                   An oath to be sworn, or an affirmation to be made, by a person (the remote person) who is to give testimony by video link, audio link or other appropriate means in accordance with this Part may be administered:

                     (a)  by means of the video link, audio link or other appropriate means in a way that, as nearly as practicable, corresponds to the way in which the oath or affirmation would be administered if the remote person were to give testimony in the courtroom or other place where the Court or the Judge is sitting; or

                     (b)  if the Court or the Judge allows another person who is present at the place where the remote person is located to administer the oath or affirmation—by that other person.

47F  Expenses

             (1)  The Court or a Judge may make such orders as the Court or the Judge thinks just for the payment of expenses incurred in connection with:

                     (a)  the giving of testimony by video link, audio link or other appropriate means in accordance with this Part; or

                     (b)  the appearance of a person by video link, audio link or other appropriate means in accordance with this Part; or

                     (c)  the making of submissions by video link, audio link or other appropriate means in accordance with this Part.

             (2)  Subsection (1) has effect subject to the regulations.

47G  New Zealand proceedings

                   Sections 47A to 47F do not affect the operation of the Evidence and Procedure (New Zealand) Act 1994.

48  Change of venue

                   The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes.

49  Reserved judgments

             (1)  When any proceeding, after being fully heard before a Full Court of the Court, is ordered to stand for judgment, it shall not be necessary that all the Judges before whom it was heard shall be present together in Court to declare their opinions thereon, but the opinion of any one of them may be reduced to writing and may be made public by any other of them at any subsequent sitting of the Court at which judgment in the proceeding is appointed to be delivered.

             (2)  In any such case the question shall be decided in the same manner, and the judgment of the Court shall have the same force and effect, as if the Judge whose opinion is so made public had been present in Court and declared his or her opinion in person.

50  Prohibition of publication of evidence etc.

                   The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.

51  Formal defects not to invalidate

             (1)  No proceedings in the Court are invalidated by a formal defect or an irregularity, unless the Court is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of the Court.

             (2)  The Court or a Judge may, on such conditions (if any) as the Court or Judge thinks fit, make an order declaring that the proceeding is not invalid by reason of a defect that it or he or she considers to be formal, or by reason of an irregularity.

51A  Interest up to judgment

             (1)  In any proceedings for the recovery of any money (including any debt or damages or the value of any goods) in respect of a cause of action that arises after the commencement of this section, the Court or a Judge shall, upon application, unless good cause is shown to the contrary, either:

                     (a)  order that there be included in the sum for which judgment is given interest at such rate as the Court or the Judge, as the case may be, thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date as of which judgment is entered; or

                     (b)  without proceeding to calculate interest in accordance with paragraph (a), order that there be included in the sum for which judgment is given a lump sum in lieu of any such interest.

             (2)  Subsection (1) does not:

                     (a)  authorize the giving of interest upon interest or of a sum in lieu of such interest;

                     (b)  apply in relation to any debt upon which interest is payable as of right whether by virtue of an agreement or otherwise;

                     (c)  affect the damages recoverable for the dishonour of a bill of exchange;

                     (d)  limit the operation of any enactment or rule of law which, apart from this section, provides for the award of interest; or

                     (e)  authorize the giving of interest, or a sum in lieu of interest, otherwise than by consent, upon any sum for which judgment is given by consent.

             (3)  Where the sum for which judgment is given (in this subsection referred to as the relevant sum) includes, or where the Court in its absolute discretion, or a Judge in that Judge’s absolute discretion, determines that the relevant sum includes, any amount for:

                     (a)  compensation in respect of liabilities incurred which do not carry interest as against the person claiming interest or claiming a sum in lieu of interest;

                     (b)  compensation for loss or damage to be incurred or suffered after the date on which judgment is given; or

                     (c)  exemplary or punitive damages;

interest, or a sum in lieu of interest, shall not be given under subsection (1) in respect of any such amount or in respect of so much of the relevant sum as in the opinion of the Court or the Judge represents any such amount.

             (4)  Subsection (3) shall not be taken to preclude interest or a sum in lieu of interest being given, pursuant to this section, upon compensation in respect of a liability of the kind referred to in paragraph (3)(a) where that liability has been met by the applicant, as from the date upon which that liability was so met.

52  Interest on judgment

             (1)  A judgment debt under a judgment of the Court carries interest from the date as of which the judgment is entered.

             (2)  Interest is payable:

                     (a)  at such rate as is fixed by the Rules of Court; or

                     (b)  if the Court, in a particular case, thinks that justice so requires—at such lower rate as the Court determines.

53  Enforcement of judgment

             (1)  Subject to the Rules of Court, a person in whose favour a judgment of the Court is given is entitled to the same remedies for enforcement of the judgment in a State or Territory, by execution or otherwise, as are allowed in like cases by the laws of that State or Territory to persons in whose favour a judgment of the Supreme Court of that State or Territory is given.

             (2)  This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for the execution and enforcement of judgments of the Court.

53A  Mediation and arbitration

             (1)  Subject to the Rules of Court, the Court may by order refer the proceedings in the Court, or any part of them or any matter arising out of them, to a mediator or an arbitrator for mediation or arbitration, as the case may be, in accordance with the Rules of Court.

          (1A)  Referrals under subsection (1) to a mediator may be made with or without the consent of the parties to the proceedings. However, referrals to an arbitrator may be made only with the consent of the parties.

             (2)  The Rules of Court may make provision for the registration of awards made in an arbitration carried out under an order made under subsection (1).

53AA  Power of arbitrator to refer question of law to the Court

             (1)  If:

                     (a)  any proceedings in the Court, or any part of them or any matter arising out of them, has been referred under subsection 53A(1) to an arbitrator for arbitration; and

                     (b)  the arbitrator has not made an award in respect of the arbitration; and

                     (c)  a party to the arbitration has requested the arbitrator to apply to the Court for leave to refer to the Court a question of law arising in the arbitration;

the arbitrator may apply to the Court or a Judge for leave to refer the question to the Court.

             (2)  If the Chief Justice considers that the matter to which the application for leave relates is of sufficient importance to justify the giving of a direction under this subsection, the Chief Justice may direct that the jurisdiction of the Court in that matter is to be exercised by a Full Court.

             (3)  The Court or Judge must not grant leave unless satisfied that the determination of the question of law by the Court might result in substantial savings in costs to the parties to the arbitration.

53AB  Application to the Court for review of award on a question of law or for costs to be taxed

             (1)  If:

                     (a)  any proceedings in the Court, or any part of them or any matter arising out of them, has been referred under subsection 53A(1) to an arbitrator for arbitration; and

                     (b)  the arbitrator has made an award in respect of the arbitration; and

                     (c)  the award has been registered with the Court under the Rules of Court:

the following provisions of this section apply.

             (2)  A party to the award may apply to the Court for a review, on a question of law, of the award.

             (3)  If the Chief Justice considers that the matter to which an application made under subsection (2) relates is of sufficient importance to justify the giving of a direction under this subsection, the Chief Justice may direct that the jurisdiction of the Court in that matter is to be exercised by a Full Court.

             (4)  On a review of an award on a question of law, the Court may:

                     (a)  determine the question of law; and

                     (b)  make such orders as it thinks appropriate, including:

                              (i)  an order affirming the award; or

                             (ii)  an order varying the award; or

                            (iii)  an order setting aside the award and remitting the award to the arbitrator for reconsideration in accordance with the directions of the Court; or

                            (iv)  an order setting aside the award and determining the matter to which the award related.

             (5)  A party to the award may apply to the Court or a Judge for an order that the costs payable by the party in respect of the arbitration be taxed in accordance with the Rules of Court.

             (6)  The person who made the application is not liable to pay in respect of the costs of the arbitration an amount that is more than the amount of the costs as taxed under an order made under subsection (5).

53B  Admissions made to mediators

                   Evidence of anything said, or of any admission made, at a conference conducted by a mediator in the course of mediating anything referred under section 53A is not admissible:

                     (a)  in any court (whether exercising federal jurisdiction or not); or

                     (b)  in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence.

53C  Protection of mediators and arbitrators

                   A mediator or an arbitrator has, in mediating or arbitrating anything referred under section 53A, the same protection and immunity as a Judge has in performing the functions of a Judge.

54  Arbitration awards

             (1)  The Court may, upon application by a party to an award made in an arbitration (whether carried out under an order made under section 53A or otherwise) in relation to a matter in which the Court has original jurisdiction, make an order in the terms of the award.

          (1A)  Subsection (1) does not apply to an award made in an arbitration carried out under an order made under subsection 53A(1) unless the award has been registered with the Court under the Rules of Court.

             (2)  Subject to subsection (3), an order so made is enforceable in the same manner as if it had been made in an action in the Court.

             (3)  A writ of attachment shall not be issued to enforce payment of moneys under an order made in accordance with this section.

55  Actions by or against Sheriff

                   If the Sheriff or a Deputy Sheriff is a party to a proceeding in the Court, all writs, summonses, orders, warrants, precepts, process and commands in the proceeding which should, in the ordinary course, be directed to the Sheriff shall be directed to such disinterested person as the Court or a Judge, appoints and the person so appointed may execute and return them.

56  Security

             (1)  The Court or a Judge may order an applicant in a proceeding in the Court or an appellant in an appeal to the Court to give security for the payment of costs that may be awarded against him or her.

             (2)  The security shall be of such amount, and given at such time and in such manner and form, as the Court or Judge directs.

             (3)  The Court or a Judge may reduce or increase the amount of security ordered to be given and may vary the time at which, or manner or form in which, the security is to be given.

             (4)  If security, or further security, is not given in accordance with an order under this section, the Court or a Judge may order that the proceeding or appeal be dismissed.

             (5)  This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the furnishing of security.

57  Receivers

             (1)  The Court may, at any stage of a proceeding on such terms and conditions as the Court thinks fit, appoint a receiver by interlocutory order in any case in which it appears to the Court to be just or convenient so to do.

             (2)  A receiver of any property appointed by the Court may, without the previous leave of the Court, be sued in respect of an act or transaction done or entered into by him or her in carrying on the business connected with the property.

             (3)  When in any cause pending in the Court a receiver appointed by the Court is in possession of property, the receiver shall manage and deal with the property according to the requirements of the laws of the State or Territory in which the property is situated, in the same manner as that in which the owner or possessor of the property would be bound to do if in possession of the property.

58  Offences by witness

             (1)  A person duly served with a summons to appear as a witness before the Court shall not:

                     (a)  fail to attend as required by the summons; or

                     (b)  fail to appear and report himself or herself from day to day unless excused, or released from further attendance, by the Court.

Penalty:  Imprisonment for 6 months.

          (1A)  Subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (2)  A person appearing as a witness before the Court shall not:

                     (a)  refuse or fail to be sworn or to make an affirmation;

                     (b)  refuse or fail to answer a question that he or she is required by the Court to answer; or

                     (c)  refuse or fail to produce a book or document that he or she is required by the Court or by a summons issued from the Court to produce.

Penalty:  Imprisonment for 6 months.

          (2A)  Subsections (1) and (2) do not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

             (3)  Nothing in this section limits the power of the Court to punish persons for contempt of the Court, but a person shall not be punished under this section and for contempt of the Court in respect of the same act or omission.


 

Part VIIRules of Court and regulations

  

59  Rules of Court

             (1)  The Judges of the Court or a majority of them may make Rules of Court, not inconsistent with this Act, making provision for or in relation to the practice and procedure to be followed in the Court (including the practice and procedure to be followed in Registries of the Court) and for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Court.

             (2)  In particular, the Rules of Court may make provision for or in relation to:

                     (a)  pleading; and

                     (b)  appearance under protest; and

                     (c)  interrogatories and discovery, production and inspection of documents; and

                     (d)  the attendance of witnesses; and

                     (e)  the administration of oaths and affirmations; and

                      (f)  the custody of convicted persons; and

                     (g)  the service and execution of the process of the Court, including the manner in which and the extent to which the process of the Court, or notice of any such process, may be served out of the jurisdiction of the Court; and

                     (h)  the issue by the Court of letters of request for the service in another country of any process of the Court; and

                      (i)  the service by officers of the Court, in the Commonwealth or in a Territory, of the process of a court of another country or of a part of another country, in accordance with a request of that court or of an authority of that country or of that part of that country, or in accordance with an arrangement in force between Australia and the government of that other country or of that part of that other country; and

                      (j)  the enforcement and execution of judgments of the Court; and

                     (k)  the stay of proceedings in, or under judgments of, the Court or another court; and

                      (l)  the prevention or termination of vexatious proceedings; and

                    (m)  the death of parties; and

                     (n)  the furnishing of security; and

                     (o)  the costs of proceedings in the Court; and

                     (p)  the means by which particular facts may be proved and the mode in which evidence of particular facts may be given; and

                     (q)  the forms to be used for the purposes of proceedings in the Court; and

                      (r)  the time and manner of instituting appeals to the Court; and

                      (s)  the duties of officers of the Court; and

                      (t)  the fees to be charged by practitioners practising in the Court for the work done by them in relation to proceedings in the Court and the taxation of their bills of costs, either as between party and party or as between solicitor and client; and

                    (ta)  the administration of oaths and affirmations in respect of testimony to be given by video link, audio link or other appropriate means; and

                    (tb)  the making or receipt of submissions by video link, audio link or other appropriate means; and

                     (u)  the reception from New Zealand of copies of instruments, documents and things reproduced by facsimile telegraphy; and

                     (v)  the reception from New Zealand of evidence or submissions by video link or audio link; and

                    (w)  issuing subpoenas for service in New Zealand and the service of such subpoenas; and

                     (x)  the form to accompany a subpoena for service in New Zealand; and

                     (y)  the Court’s sittings in New Zealand under Part IIIA; and

                    (za)  the enforcement of orders under subsection 32M(5); and

                    (zb)  the registration and enforcement, and the setting aside of the registration, of judgments under Part IIIA; and

                    (zc)  the transmission of documents to the High Court of New Zealand; and

                    (zd)  taking evidence under section 32T; and

                    (ze)  the exercise in Chambers of the Court’s jurisdiction under Part IIIA; and

                    (zf)  the referral of any proceedings in the Court, or any part of such proceedings or any matters arising out of such proceedings, to a mediator or an arbitrator for mediation or arbitration, as the case may be; and

                    (zg)  the procedures to be followed by a mediator or an arbitrator in mediating or arbitrating anything referred for mediation or arbitration under this Act; and

                    (zh)  the attendance by persons at conferences conducted by mediators or arbitrators for the purposes of mediating or arbitrating anything so referred; and

                     (zi)  the procedure when any such mediation or arbitration ends, both where it has resulted in an agreement or award and where it has not; and

                     (zj)  the practice and procedure of the Court in relation to any matter arising under the Native Title Act 1993; and

                    (zk)  the notification of determinations of native title to the Registrar of the National Native Title Tribunal; and

                     (zl)  the duties of assessors appointed under Part VA of this Act.

          (2A)  In particular, the Rules of Court may make further provision in relation to the taking or receipt of evidence, where:

                     (a)  the evidence is given by video link, audio link or other appropriate means; and

                     (b)  the Court or a Judge is authorised to receive the evidence under another provision of this Act or another law of the Commonwealth.

          (2B)  The Rules of Court may make provision for:

                     (a)  the amendment of a document in a proceeding; or

                     (b)  leave to amend a document in a proceeding;

even if the effect of the amendment would be to allow a person to seek a remedy in respect of a legal or equitable claim that would have been barred because of the expiry of a period of limitation if the remedy had originally been sought at the time of the amendment.

             (3)  Rules of Court under this Act have effect subject to any provision made by another Act, or by rules or regulations under another Act, with respect to the practice and procedure in particular matters.

             (4)  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 this Act 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 Justice acting on behalf of the Judges of the Court; and

                     (c)  subject to such further modifications or adaptations as are provided for in regulations made under section 59A of this Act.

             (5)  Despite the fact that section 16 of the Legislative Instruments Act 2003 does not apply in relation to rules of court made by the Court under this Act or another Act, the Department may provide assistance in the drafting of any of those Rules if the Chief Justice so desires.

59A  Regulations modifying or adapting the Legislative Instruments Act 2003

                   The Governor‑General may make regulations for the purpose of subsection 59(4) modifying or adapting the provisions of the Legislative Instruments Act 2003 (other than provisions of Part 5 of that Act or any other provisions whose modification or adaptation would affect the operation of that Part) in their application to the Court.

60  Regulations relating to fees

             (1)  The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act;

and, in particular, prescribing the fees to be paid in respect of proceedings in the Court or the service or execution of the process of the Court by officers of the Court.

             (2)  This section does not prevent the making of rules or regulations under another Act with respect to a matter referred to in this section, or affect the operation of any such rules or regulations so far as they are not inconsistent with regulations under this section.


The Schedule  

Section 11

I,                        , do swear that I will bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, that I will well and truly serve Her in the Office of Chief Justice [or Judge] of the Federal Court of Australia and that I will do right to all manner of people according to law without fear or favour, affection or ill‑will. So help me God!

or

I,                        , do solemnly and sincerely promise and declare that [as above, omitting the words “So help me God!].


Notes to the Federal Court of Australia Act 1976

Note 1

The Federal Court of Australia Act 1976 as shown in this compilation comprises Act No. 156, 1976 amended as indicated in the Tables below.

All relevant information pertaining to application, saving or transitional provisions prior to 25 November 1996 is not included in this compilation. For subsequent information see Table A.

Table of Acts

Act

Number
and year

Date
of Assent

Date of commencement

Application, saving or transitional provisions

Federal Court of Australia Act 1976

156, 1976

9 Dec 1976

9 Dec 1976

 

Jurisdiction of Courts (Miscellaneous Amendments) Act 1979

19, 1979

28 Mar 1979

Parts II–XVII (ss. 
3–123): 15 May 1979 (see Gazette 1979, No. S86)
Remainder: Royal Assent

S. 124

Federal Court of Australia Amendment Act 1979

87, 1979

31 Aug 1979

1 Oct 1979 (see
 
s. 2 and Gazette 1979, No. S187,
p. 17)

Statute Law Revision Act 1981

61, 1981

12 June 1981

S. 115: Royal Assent (a)

Statute Law (Miscellaneous Amendments) Act
(No. 1) 1982

26, 1982

7 May 1982

Part XXIII (ss. 154, 155): 4 June 1982 (b)

Statute Law (Miscellaneous Provisions) Act (No. 2) 1983

91, 1983

22 Nov 1983

S. 3: 20 Dec 1983 (c)

S. 6(1)

Federal Court of Australia Amendment Act 1984

11, 1984

10 Apr 1984

1 June 1984 (see s. 2 and Gazette 1984, No. S153)

S. 3(2)

Statute Law (Miscellaneous Provisions) Act (No. 1) 1984

72, 1984

25 June 1984

S. 3: 23 July 1984 (d)

S. 5(1) and (6)

Statute Law (Miscellaneous Provisions) Act (No. 2) 1984

165, 1984

25 Oct 1984

S. 3: 22 Nov 1984 (e)

S. 6(1)

Statute Law (Miscellaneous Provisions) Act (No. 1) 1985

65, 1985

5 June 1985

S. 3: 1 Mar 1986 (see Gazette 1986, No. S67) (f)

S. 8

Statute Law (Miscellaneous Provisions) Act (No. 2) 1985

193, 1985

16 Dec 1985

S. 3: Royal Assent (g)

S. 16

Statute Law (Miscellaneous Provisions) Act (No. 1) 1986

76, 1986

24 June 1986

S. 3: Royal Assent (h)

S. 9

Statute Law (Miscellaneous Provisions) Act 1987

141, 1987

18 Dec 1987

S. 3: Royal Assent (i)

S. 5(1)

Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988

8, 1988

5 Apr 1988

Ss. 1–11, 12(b), (c), (e), (f), 13–21, 27, 29 and 30: Royal Assent
S. 12(a) and (d): 1 Jan 1990
Remainder: 1 July 1988 (see Gazette 1988, No. S191)

as amended by

 

 

 

 

Law and Justice Legislation Amendment Act 1988

120, 1988

14 Dec 1988

Part XI (ss. 34, 35): 5 Apr 1988 (j)

Statutory Instruments (Tabling and Disallowance) Legislation Amendment Act 1988

99, 1988

2 Dec 1988

2 Dec 1988

Courts and Tribunals Administration Amendment Act 1989

157, 1989

5 Dec 1989

Part 1 (ss. 1, 2) and Part 6 (ss. 17, 18): Royal Assent
Remainder: 1 Jan 1990 (see Gazette 1989, No. S398)

S. 24

Law and Justice Legislation Amendment Act 1989

11, 1990

17 Jan 1990

Part 12
(ss. 35–37): 14 Feb 1990 (k)

Trade Practices (Misuse of Trans‑Tasman Market Power) Act 1990

70, 1990

16 June 1990

1 July 1990 (see Gazette 1990, No. S172)

Law and Justice Legislation Amendment Act 1990

115, 1990

21 Dec 1990

S. 49: Royal Assent (l)

Foreign Judgments Act 1991

112, 1991

27 June 1991

S. 21: 27 Oct 1991
Remainder: Royal Assent

Courts (Mediation and Arbitration) Act 1991

113, 1991

27 June 1991

Ss. 3–13: 27 Dec 1991
Remainder: Royal Assent

Industrial Relations Legislation Amendment Act 1991

122, 1991

27 June 1991

Ss. 4(1), 10(b) and 15–20: 1 Dec 1988
Ss. 28(b)–(e), 30 and 31: 10 Dec 1991 (see Gazette 1991, No. S332)
Remainder: Royal Assent

S. 31(2)

Law and Justice Legislation Amendment Act 1991

136, 1991

12 Sept 1991

Schedule: 10 Oct 1991 (m)

Federal Court of Australia Amendment Act 1991

181, 1991

4 Dec 1991

4 Mar 1992

A.C.T. Supreme Court (Transfer) Act 1992

49, 1992

17 June 1992

1 July 1992

Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 1992

94, 1992

30 June 1992

S. 3: 1 July 1990
Remainder: Royal Assent

Law and Justice Legislation Amendment Act (No. 4) 1992

143, 1992

7 Dec 1992

S. 3: Royal Assent (n)

Native Title Act 1993

110, 1993

24 Dec 1993

Ss. 216–219: 1 Jan 1994 (see Gazette 1993, No. S402) (o)

S. 216

Law and Justice Legislation Amendment Act 1994

84, 1994

23 June 1994

Ss. 36–44: Royal Assent (p)

Ss. 37, 39 and 43

Evidence and Procedure (New Zealand) (Transitional Provisions and Consequential Amendments) Act 1994

112, 1994

16 Sept 1994

Ss. 1 and 2: Royal Assent
Remainder: 1 Apr 1995 (see s. 2(2) and Gazette 1995, GN8)

S. 3

Evidence (Transitional Provisions and Consequential Amendments) Act 1995

3, 1995

23 Feb 1995

Ss. 21 and 22: 18 Apr 1995 (q)

S. 14

Law and Justice Legislation Amendment Act (No. 1) 1995

175, 1995

16 Dec 1995

16 Dec 1995

Statute Law Revision Act 1996

43, 1996

25 Oct 1996

Schedule 2 (item 56): (r)
Schedule 5 (items 55–58): Royal Assent (r)

Workplace Relations and Other Legislation Amendment Act 1996

60, 1996

25 Nov 1996

Schedule 16 (items 4–28, 62–89): 25 May 1997 (s)
Schedule 16 (item 90): Royal Assent (s)

Sch. 16 (items
62–74,
76–90) [see Table A]
S. 2(2) and  (6) (am. by 77, 1996, Sch. 3 [items 1, 2])
Sch. 16 (item 75) (am. by 34, 1997, Sch. 17) [see Table A]

as amended by

 

 

 

 

Workplace Relations and Other Legislation Amendment Act (No. 2) 1996

77, 1996

19 Dec 1996

Schedule 3 (items 1, 2): (t)

Law and Justice Legislation Amendment Act 1997

34, 1997

17 Apr 1997

Schedule 17: (u)

Law and Justice Legislation Amendment Act 1999

125, 1999

13 Oct 1999

Schedule 14 (item 1): 25 May 1997 (ua)

Law and Justice Legislation Amendment Act 1997

34, 1997

17 Apr 1997

Schedule 8 (items 1–4): (v)
Schedule 8 (items 5–19): Royal Assent (v)

Audit (Transitional and Miscellaneous) Amendment Act 1997

152, 1997

24 Oct 1997

Schedule 2 (item 780): 1 Jan 1998 (see Gazette 1997, No. GN49) (w)

Native Title Amendment Act 1998

97, 1998

27 July 1998

Schedule 2 (items 102, 103): 30 Sept 1998 (see Gazette 1998, No. S428) (x)

Law and Justice Legislation Amendment Act 1999

125, 1999

13 Oct 1999

Schedule 7:
Royal Assent (y)

Human Rights Legislation Amendment Act (No. 1) 1999

133, 1999

13 Oct 1999

Ss. 1–3 and 21: Royal Assent
S. 22 and Schedule 1 (items 53, 60): 10 Dec 1999 (see Gazette 1999, No. S598)
Remainder: 13 Apr 2000

Public Employment (Consequential and Transitional) Amendment Act 1999

146, 1999

11 Nov 1999

Schedule 1 (items 462–471): 5 Dec 1999 (see Gazette 1999, No. S584) (z)

Federal Magistrates (Consequential Amendments) Act 1999

194, 1999

23 Dec 1999

Schedule 12: 23 Dec 1999 (za)

Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001

24, 2001

6 Apr 2001

S. 4(1), (2) and Schedule 28: (zb)

S. 4(1) and (2) [see Table A]

Abolition of Compulsory Age Retirement (Statutory Officeholders) Act 2001

159, 2001

1 Oct 2001

29 Oct 2001

Sch. 1 (item 97) [see Table A]

Jurisdiction of Courts Legislation Amendment Act 2002

70, 2002

3 Sept 2002

Schedules 1 and 2: 14 Oct 2002 (see Gazette 2002, No. GN40)
Remainder: Royal Assent

Sch. 1 (items
12–15) and Sch. 2
(item 25) [see Table A]

Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003

140, 2003

17 Dec 2003

S. 4 and Schedule 1 (items 23, 24): (zc)

S. 4 [see Table A]

Law and Justice Legislation Amendment Act 2004

62, 2004

26 May 2004

Schedule 1 (items 18–20): 27 May 2004

Sch. 1 (item 20) [see Table A]


(a)     The Federal Court of Australia Act 1976 was amended by section 115 only of the Statute Law Revision Act 1981, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act shall come into operation on the day on which it receives the Royal Assent.

(b)    The Federal Court of Australia Act 1976 was amended by Part XXIII (sections 154 and 155) only of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982, subsection 2(12) of which provides as follows:

               (12)   The remaining provisions of this Act shall come into operation on the twenty‑eighth day after the day on which this Act receives the Royal Assent.

(c)     The Federal Court of Australia Act 1976 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 2) 1983, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act shall come into operation on the twenty‑eighth day after the day on which it receives the Royal Assent.

(d)     The Federal Court of Australia Act 1976 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 1) 1984, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act shall come into operation on the twenty‑eighth day after the day on which it receives the Royal Assent.

(e)     The Federal Court of Australia Act 1976 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 2) 1984, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act shall come into operation on the twenty‑eighth day after the day on which it receives the Royal Assent.

(f)      The Federal Court of Australia Act 1976 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 1) 1985, subsection 2(20) of which provides as follows:

               (20)   The amendment of the Federal Court of Australia Act 1976 made by this Act shall come into operation on a day to be fixed by Proclamation.

(g)     The Federal Court of Australia Act 1976 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 2) 1985, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act shall come into operation on the day on which it receives the Royal Assent.

(h)     The Federal Court of Australia Act 1976 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 1) 1986, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act shall come into operation on the day on which it receives the Royal Assent.

(i)      The Federal Court of Australia Act 1976 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act 1987, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act shall come into operation on the day on which it receives the Royal Assent.

(j)      The Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988 was amended by Part XI (sections 34 and 35) only of the Law and Justice Legislation Amendment Act 1988, subsection 2(6) of which provides as follows:

                 (6)   Part XI shall be taken to have commenced on 5 April 1988.

(k)     The Federal Court of Australia Act 1976 was amended by Part 12 (sections 35–37) only of the Law and Justice Legislation Amendment Act 1989, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences on the 28th day after the day on which it receives the Royal Assent.

(l)      The Federal Court of Australia Act 1976 was amended by section 49 only of the Law and Justice Legislation Amendment Act 1990, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(m)    The Federal Court of Australia Act 1976 was amended by the Schedule only of the Law and Justice Legislation Amendment Act 1991, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences on the 28th day after the day on which it receives the Royal Assent.

(n)     The Federal Court of Australia Act 1976 was amended by section 3 only of the Law and Justice Legislation Amendment Act (No. 4) 1992, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(o)     The Federal Court of Australia Act 1976 was amended by sections 216–219 only of the Native Title Act 1993, subsection 2(2) of which provides as follows:

                 (2)   Subject to subsection (3), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.

(p)     The Federal Court of Australia Act 1976 was amended by sections 36–44 only of the Law and Justice Legislation Amendment Act 1994, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(q)     The Federal Court of Australia Act 1976 was amended by sections 21 and 22 only of the Evidence (Transitional Provisions and Consequential Amendments) Act 1995, subsections 2(10) and (11) of which provide as follows:

               (10)   Sections 21, 23 and 24 of this Act commence on the day on which section 21 of the Evidence Act 1995 commences.

               (11)   Section 22 of this Act commences on the day on which those provisions of Part VA of the Evidence Act 1905 that may be repealed under subsection 3(1) of this Act are so repealed.

         Sections 21 and 22 commenced on 18 April 1995.

(r)     The Federal Court of Australia Act 1976 was amended by Schedule 2 (item 56) and Schedule 5 (items 55–58) only of the Statute Law Revision Act 1996, subsections 2(1) and (2) of which provide as follows:

                 (1)   Subject to subsections (2) and (3), this Act commences on the day on which it receives the Royal Assent.

                 (2)   Each item in Schedule 2 commences or is taken to have commenced (as the case requires) at the time specified in the note at the end of the item.

         Item 56 is taken to have commenced immediately after the commencement of the Schedule to the Evidence and Procedure (New Zealand) (Transitional Provisions and Consequential Amendments) Act 1994.

         The Schedule commenced on 1 April 1995 (see Gazette 1995, No. GN8).

(s)     The Federal Court of Australia Act 1976 was amended by Schedule 16 (items 4–28 and
62–90) only of the Workplace Relations and Other Legislation Amendment Act 1996, subsections 2(1)–(3) of which provide as follows:

                 (1)   Subject to this section, this Act commences on the day on which it receives the Royal Assent.

                 (2)   Subject to subsection (3), the items of the Schedules, other than Schedule 5, item 1 of Schedule 9, items 2 and 3 of Schedule 12, item 90 of Schedule 16 and the items of Schedule 19, commence on a day or days to be fixed by Proclamation.

                 (3)   If an item of a Schedule does not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

(t)      The Workplace Relations and Other Legislation Amendment Act 1996 was amended by Schedule 3 (items 1 and 2) only of the Workplace Relations and Other Legislation Amendment Act (No. 2) 1996, subsection 2(4) of which provides as follows:

                 (4)   The items of Schedule 3 are taken to have commenced immediately after the Workplace Relations and Other Legislation Amendment Act 1996 received the Royal Assent.

         The Workplace Relations and Other Legislation Amendment Act 1996 received the Royal Assent on 25 November 1996.

(u)     The Workplace Relations and Other Legislation Amendment Act 1996 was amended by Schedule 17 only of the Law and Justice Legislation Amendment Act 1997, subsection 2(5) of which provides as follows:

                 (5)   Schedule 17 commences immediately after the commencement of item 75 of Schedule 16 to the Workplace Relations and Other Legislation Amendment Act 1996.

         Item 75 of Schedule 16 commenced on the 25 May 1997.

(ua)   The Workplace Relations and Other Legislation Amendment Act 1996 was amended by Schedule 14 (item 1) only of the Law and Justice Legislation Amendment Act 1999, subsection 2(7) of which provides as follows:

                 (7)   Item 1 of Schedule 14 is taken to have commenced on 25 May 1997, immediately after the commencement of item 28 of Schedule 16 to the Workplace Relations and Other Legislation Amendment Act 1996.

(v)     The Federal Court of Australia Act 1976 was amended by Schedule 8 only of the Law and Justice Legislation Amendment Act 1997, subsections 2(1) and (4) of which provide as follows:

                 (1)   Subject to this section, this Act commences on the day on which it receives the Royal Assent.

                 (4)   Items 1 to 4 of Schedule 8 commence immediately after the commencement of item 19 of Schedule 16 to the Workplace Relations and Other Legislation Amendment Act 1996.

         Item 19 of Schedule 16 commenced on the 25 May 1997.

(w)    The Federal Court of Australia Act 1976 was amended by Schedule 2 (item 780) only of the Audit (Transitional and Miscellaneous) Amendment Act 1997, subsection 2(2) of which provides as follows:

                 (2)   Schedules 1, 2 and 4 commence on the same day as the Financial Management and Accountability Act 1997.

(x)     The Federal Court of Australia Act 1976 was amended by Schedule 2 (items 102 and 103) only of the Native Title Amendment Act 1998, subsection 2(5) of which provides as follows:

                 (5)   Subject to subsection (6), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.

(y)     The Federal Court of Australia Act 1976 was amended by Schedule 7 only of the Law and Justice Legislation Amendment Act 1999, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(z)     The Federal Court of Australia Act 1976 was amended by Schedule 1 (items 462–471) only of the Public Employment (Consequential and Transitional) Amendment Act 1999, subsections 2(1) and (2) of which provide as follows:

                 (1)   In this Act, commencing time means the time when the Public Service Act 1999 commences.

                 (2)   Subject to this section, this Act commences at the commencing time.

(za)   The Federal Court of Australia Act 1976 was amended by Schedule 12 only of the Federal Magistrates (Consequential Amendments) Act 1999, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences on the commencement of the Federal Magistrates Act 1999.

(zb)  The Federal Court of Australia Act 1976 was amended by Schedule 28 only of the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001, subsection 2(1)(a) of which provides as follows:

                 (1)   Subject to this section, this Act commences at the later of the following times:

                              (a)   immediately after the commencement of item 15 of Schedule 1 to the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000;

         Item 15 commenced on 24 May 2001.

(zc)   Subsection 2(1) (items 2 and 3) of the Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 provide as follows:

                 (1)   Each provision of this Act specified in column 1 of the table commences on the day or at the time specified in column 2 of the table.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

2.  Sections 4 and 5

Immediately after the commencement of sections 3 to 62 of the Legislative Instruments Act 2003

1 January 2005

3.  Schedule 1

Immediately after the commencement of sections 3 to 62 of the Legislative Instruments Act 2003

1 January 2005

 


Table of Amendments

ad. = added or inserted    am. = amended    rep. = repealed    rs. = repealed and substituted

Provision affected

How affected

Part I

 

S. 4 .....................................

am. No. 60, 1996; No. 70, 2002

S. 4A ..................................

ad. No. 24, 2001

Part II

 

Heading to Part II ................

rs. No. 60, 1996

Division 1

 

Heading to Div. 1 of Part II ..

ad. No. 60, 1996

S. 5 .....................................

am. No. 141, 1987; No. 60, 1996

S. 6 .....................................

am. No. 87, 1979; No. 49, 1992; No. 43, 1996; No. 60, 1996

Heading to s. 7 ...................

am. No. 60, 1996

Ss. 7, 8 ...............................

am. No. 60, 1996

S. 9 .....................................

am. No. 43, 1996; No. 60, 1996

S. 11 ...................................

am. No. 43, 1996

S. 13 ...................................

am. No. 61, 1981; No. 43, 1996

 

rep. No. 60, 1996

S. 14 ...................................

am. No. 61, 1981; Nos. 43 and 60, 1996

S. 15 ...................................

am. No. 87, 1979; No. 43, 1996; No. 60, 1996 (as am. by
No. 125, 1999)

Heading to s. 15A ..............

am. No. 60, 1996

S. 15A ................................

ad. No. 8, 1988

 

am. No. 60, 1996

S. 16 ...................................

am. No. 43, 1996; No. 60, 1996

Div. 2 of Part II ....................

ad. No. 60, 1996
rep. No. 70, 2002

S. 18AA .............................

ad. No. 60, 1996

 

rep. No. 70, 2002

S. 18AB...............................

ad. No. 60, 1996

 

am. No. 34, 1997; No. 97, 1998; No. 133, 1999

 

rep. No. 70, 2002

Ss. 18AC–18AH..................

ad. No. 60, 1996

 

rep. No. 70, 2002

S. 18AI................................

ad. No. 60, 1996

 

am. No. 146, 1999

 

rep. No. 70, 2002

S. 18AJ–18AM....................

ad. No. 60, 1996

 

rep. No. 70, 2002

Part IIA

 

Part IIA ................................

ad. No. 157, 1989

Division 1

 

Heading to Div. 1 of Part IIA ........................................

am. No. 60, 1996

Ss. 18A, 18B ......................

ad. No. 157, 1989

 

am. No. 60, 1996

Division 2

 

Ss. 18C, 18D ......................

ad. No. 157, 1989

 

am. No. 60, 1996

S. 18E .................................

ad. No. 157, 1989

S. 18F .................................

ad. No. 157, 1989

 

am. No. 60, 1996; No. 159, 2001

S. 18G ................................

ad. No. 157, 1989

 

rs. No. 122, 1991

 

am. No. 60, 1996; No. 146, 1999

S. 18H ................................

ad. No. 157, 1989

S. 18J .................................

ad. No. 157, 1989

 

am. No. 60, 1996

S. 18K ................................

ad. No. 157, 1989

 

am. No. 122, 1991; No. 94, 1992

Ss. 18L, 18M ......................

ad. No. 157, 1989

 

am. No. 60, 1996

Division 3

 

S. 18N ................................

ad. No. 157, 1989

 

am. No. 60, 1996; No. 34, 1997; No. 146, 1999; No. 70, 2002

S. 18P .................................

ad. No. 157, 1989

S. 18Q ................................

ad. No. 157, 1989

 

rs. No. 146, 1999

S. 18R ................................

ad. No. 157, 1989

Division 4

 

S. 18S.................................

ad. No. 157, 1989

 

am. No. 60, 1996

 

rs. No. 152, 1997

Ss. 18T, 18U.......................

ad. No. 157, 1989

 

am. No. 60, 1996

 

rep. No. 152, 1997

S. 18V ................................

ad. No. 157, 1989

 

rep. No. 136, 1991

Heading to s. 18W ..............

am. No. 60, 1996

S. 18W ...............................

ad. No. 157, 1989

 

am. No. 60, 1996

S. 18X ................................

ad. No. 157, 1989

S. 18Y ................................

ad. No. 143, 1992

 

am. No. 60, 1996

Part III

 

Division 1

 

S. 19 ...................................

am. No. 91, 1983

S. 20 ...................................

am. No. 19, 1979; No. 76, 1986; No. 60, 1996; No. 70, 2002; No. 62, 2004

S. 22 ...................................

am. No. 43, 1996

Division 2

 

S. 24 ...................................

am. No. 72, 1984; No. 65, 1985; No. 34, 1997; No. 194, 1999; No. 70, 2002

S. 25 ...................................

am. No. 72, 1984; No. 115, 1990; No. 84, 1994; No. 60, 1996, 1999; Nos. 125 and 194, 1999; No. 70, 2002;
No. 62, 2004

S. 26 ...................................

am. No. 60, 1996

S. 27 ...................................

am. No. 84, 1994; No. 70, 2002

S. 29 ...................................

am. No. 43, 1996; No. 194, 1999

S. 29A ................................

ad. No. 115, 1990

S. 30A ................................

ad. No. 11, 1990

 

am. No. 34, 1997

 

rep. No. 70, 2002

Division 3

 

S. 31 ...................................

am. No. 60, 1996

Ss. 32AA, 32AB ................

ad. No. 194, 1999

S. 32A ................................

ad. No. 19, 1979

 

am. No. 193, 1985; No. 70, 1990; No. 60, 1996; No. 70, 2002

Part IIIA

 

Part IIIA ...............................

ad. No. 70, 1990

Division 1

 

S. 32B ................................

ad. No. 70, 1990

 

am. No. 112, 1994

Division 2

 

S. 32C ................................

ad. No. 70, 1990

 

am. No. 112, 1994

S. 32D ................................

ad. No. 70, 1990

 

rs. No. 112, 1994

Ss. 32E, 32F .......................

ad. No. 70, 1990

 

am. No. 112, 1994

Ss. 32G–32L ......................

ad. No. 70, 1990

 

rep. No. 112, 1994

Division 3

 

S. 32M ................................

ad. No. 70, 1990

 

am. No. 112, 1994

S. 32N ................................

ad. No. 70, 1990

 

rs. No. 112, 1994

Ss. 32P, 32Q ......................

ad. No. 70, 1990

 

am. No. 112, 1994

Ss. 32R, 32S ......................

ad. No. 70, 1990

 

rep. No. 112, 1994

Division 4

 

Ss. 32T–32V ......................

ad. No. 70, 1990

Division 5

 

S. 32W ...............................

ad. No. 70, 1990

 

am. No. 112, 1991; No. 34, 1997

Ss. 32X–32Z ......................

ad. No. 70, 1990

Ss. 32ZA, 32ZB .................

ad. No. 70, 1990

Division 6

 

S. 32ZC ..............................

ad. No. 70, 1990

S. 32ZD ..............................

ad. No. 70, 1990

 

rep. No. 112, 1994

S. 32ZE ..............................

ad. No. 70, 1990

 

am. No. 24, 2001

S. 32ZF ..............................

ad. No. 70, 1990

 

am. No. 112, 1994; No. 43, 1996; No. 60, 1996

Part IV

 

S. 33 ...................................

am. No. 11, 1984; No. 194, 1999

Part IVA

 

Part IVA ..............................

ad. No. 181, 1991

Division 1

 

Ss. 33A, 33ZB ...................

ad. No. 181, 1991

Division 2

 

Ss. 33C–33W .....................

ad. No. 181, 1991

Division 3

 

Ss. 33X, 33Y ......................

ad. No. 181, 1991

Division 4

 

Ss. 33Z, 33ZA, 33ZB .........

ad. No. 181, 1991

Division 5

 

Ss. 33ZC, 33ZD .................

ad. No. 181, 1991

Division 6

 

Ss. 33ZE–33ZJ ..................

ad. No. 181, 1991

Part V

 

S. 34 ...................................

am. Nos. 43 and 60, 1996

S. 35 ...................................

rs. No. 157, 1989

 

am. No. 60, 1996

S. 35A ................................

ad. No. 72, 1984

 

am. No. 43, 1996; No. 146, 1999

S. 36 ...................................

am. No. 43, 1996; No. 60, 1996

S. 37 ...................................

rs. No. 19, 1979

 

am. No. 70, 2002

Part VA

 

Part VA ..............................

ad. No. 110, 1993

Ss. 37A–37C ......................

ad. No. 110, 1993

S. 37D ................................

ad. No. 110, 1993

 

am. No. 159, 2001

S. 37E .................................

ad. No. 110, 1993

 

am. No. 60, 1996

S. 37F .................................

ad. No. 110, 1993

 

am. No. 146, 1999

Ss. 37G–37K ......................

ad. No. 110, 1993

S. 37L .................................

ad. No. 110, 1993

 

am. No. 60, 1996

Part VI

 

S. 42 ...................................

am. No. 43, 1996; No. 24, 2001

S. 43 ...................................

am. No. 143, 1992

S. 44 ...................................

am. No. 3, 1995; No. 125, 1999

S. 45 ...................................

am. No. 61, 1981; No. 43, 1996; No. 125, 1999; No. 70, 2002

S. 46 ...................................

am. No. 43, 1996

S. 47 ...................................

am. No. 19, 1979; No. 84, 1994; No. 43, 1996; No. 70, 2002

Note to s. 47(1) ..................

ad. No. 70, 2002

Note to s. 47(6) ..................

ad. No. 70, 2002

Ss. 47A–47G .....................

ad. No. 70, 2002

S. 49 ...................................

am. No. 19, 1979; No. 61, 1981; No. 43, 1996

S. 51 ...................................

am. No. 43, 1996

S. 51A ................................

ad. No. 165, 1984

 

am. No. 115, 1990

S. 52 ...................................

am. No. 115, 1990

S. 53A ................................

ad. No. 113, 1991

 

am. No. 175, 1995; No. 34, 1997

Ss. 53AA, 53AB ................

ad. No. 175, 1995

 

am. No. 60, 1996

Ss. 53B, 53C ......................

ad. No. 113, 1991

S. 54 ...................................

am. No. 113, 1991; No. 175, 1995

S. 56 ...................................

am. No. 115, 1990; No. 43, 1996

S. 57 ...................................

am. No. 43, 1996

S. 58 ...................................

am. No. 43, 1996; No. 194, 1999; No. 24, 2001

Part VII

 

S. 59 ...................................

am. No. 26, 1982; No. 99, 1988; Nos. 11 and 70, 1990; No. 113, 1991; No. 110, 1993; Nos. 84 and 112, 1994; No. 3, 1995; No. 60, 1996; No. 70, 2002; No. 140, 2003

S. 59A ................................

ad. No. 140, 2003

S. 60 ...................................

am. No. 125, 1999

The Schedule

 

The Schedule .....................

am. No. 60, 1996


Note 2

Subsection 2(2)—The date fixed was 1 February 1977 (see Gazette 1977, No. S3).


Table A

Application, saving or transitional provisions

Workplace Relations and Other Legislation Amendment Act 1996  (No. 60, 1996)

Schedule 16

Part 3—Transitional and saving provisions

62  Definitions

In this Part:

completion day means the day, on or after which the Industrial Relations Court has disposed of all the proceedings in that Court, that is fixed by Proclamation to be the day on which Part 2 of this Schedule commences.

Federal Court means the Federal Court of Australia.

Industrial Relations Court means the Industrial Relations Court of Australia.

proceeding means a proceeding in a court, whether or not between parties, and includes:

                     (a)  an incidental proceeding in the course of, or in connection with, a proceeding; and

                     (b)  an appeal.

transfer day means the day on which the Federal Court is invested with jurisdiction under Division 2 of this Part, being the day on which Part 1 of this Schedule commences.

63  Transfer of jurisdiction

(1)        This item applies to jurisdiction and powers vested in or exercisable by the Industrial Relations Court or a Judge of that Court immediately before the transfer day in relation to an act or omission occurring before the transfer day, except in relation to matters for which:

                     (a)  the Industrial Relations Court had begun the substantive hearing in proceedings in that Court; or

                     (b)  proceedings had been completed in the Industrial Relations Court before that day.

(2)        On and after the transfer day, the jurisdiction and powers to which this item applies:

                     (a)  cease to be vested in or exercisable by the Industrial Relations Court or a Judge of that Court; and

                     (b)  are, subject to subitem (3), vested in the Federal Court.

(3)        In spite of subitem (2), the Federal Court has jurisdiction in relation to a matter that was remitted by the High Court to the Industrial Relations Court before the transfer day only if a Judge of the High Court has further remitted the matter to the Federal Court under item 65.

64  Transfer of proceedings

(1)        Subject to subitem (4), this item applies to proceedings commenced in the Industrial Relations Court but in respect of which the Industrial Relations Court had not begun the substantive hearing before the transfer day.

(2)        On the transfer day, proceedings to which this item applies are transferred to the Federal Court.

(3)        If proceedings to which this item applies are transferred under subitem (2):

                     (a)  all documents filed in the Industrial Relations Court in relation to the proceedings are to be transmitted to the Federal Court; and

                     (b)  any money lodged with the Industrial Relations Court in relation to the proceedings is to be transferred to the Federal Court and is taken to be money lodged with the Federal Court in relation to the proceedings; and

                     (c)  everything done in or in relation to the proceedings in the Industrial Relations Court is taken to have been done in the Federal Court.

(4)        This item does not affect a matter that was remitted by the High Court to the Industrial Relations Court before the transfer day under section 44 of the Judiciary Act 1903.

65  Matters remitted under the Judiciary Act 1903

If:

                     (a)  a matter had been remitted by the High Court to the Industrial Relations Court under section 44 of the Judiciary Act 1903 before the transfer day; and

                     (b)  the Industrial Relations Court had not begun the substantive hearing in respect of the matter;

then:

                     (c)  a party may apply to a Judge of the High Court sitting in Chambers for a direction that the matter be remitted instead to the Federal Court; or

                     (d)  in any case, a Judge of the High Court may direct that the matter be remitted instead to the Federal Court.

66  New trials ordered by Federal Court

For the avoidance of doubt, if, in an appeal from a decision of the Industrial Relations Court to the Federal Court (whether that decision is made before or after the transfer day), the Federal Court grants a new trial, that new trial is to be a new trial in the Federal Court.

67  Rules of Court

(1)        The Rules of the Industrial Relations Court as in force under section 486 of the Workplace Relations Act in force immediately before the transfer day are to be taken, on and after that day, also to be Rules of the Federal Court made under section 59 of the Federal Court of Australia Act 1976, and, as so included, may be amended or revoked under the last‑mentioned section.

(2)        This item does not affect the operation of item 71.

68  Industrial Relations Court remains in existence

(1)        In spite of the amendment of the Workplace Relations Act by this Schedule, the Industrial Relations Court continues in existence as if Part XIV of that Act as in force immediately before the commencement of this Schedule continued to be in force on and after that commencement.

(2)        Subitem (1) has effect subject to the other provisions in this Part.

69  Limited jurisdiction of the Industrial Relations Court

(1)        This item applies to proceedings commenced in the Industrial Relations Court in respect of which the Industrial Relations Court had begun the substantive hearing before the transfer day.

(2)        On and after the transfer day:

                     (a)  the Industrial Relations Court continues to have jurisdiction to deal with the proceedings to which this item applies as if this Act had not been enacted; and

                     (b)  subject to subitem (3), the Workplace Relations Act as in force immediately before the transfer day continues to have effect in relation to the Industrial Relations Court’s exercise of its jurisdiction in relation to the proceedings.

(3)        For the purposes of this item, section 428 of the Workplace Relations Act as in force under paragraph (2)(b) of this item has effect as if the following subsections were added at the end of that section:

             (3)  In an appeal from a court of a State or Territory to the Court, the Court may grant a new trial under this section only in the Federal Court of Australia or a court of that State or Territory.

             (4)  In an appeal from a single Judge of the Court, the Court may grant a new trial under this section only in the Federal Court of Australia.

70  Orders of the Industrial Relations Court

(1)        The Federal Court has the same powers in respect of an order of the Industrial Relations Court (whether made before or after the transfer day) as if it were an order of the Federal Court.

(2)        Subitem (1) does not apply to an order while the order is the subject of proceedings to which item 69 applies.

71  Rules of Court

            In spite of the repeal of section 486 of the Workplace Relations Act by this Schedule, Rules of Court under that section as in force immediately before the transfer day continue to be in force on and after that day as if that section had not been repealed.

72  Terms and conditions of appointment of Judges of the Industrial Relations Court

(1)        The Chief Justice and other Judges of the Industrial Relations Court continue to hold office as Judges of that Court, on and after the transfer day, as if sections 361, 362, 363, 364, 365, 366, 367 and 408 of the Workplace Relations Act as in force immediately before that day had not been repealed.

(2)        Section 363 of the Workplace Relations Act as continued in force under subitem (1) ceases to be so in force on and after the completion day.

73  Judicial Registrars of Industrial Relations Court taken to be appointed to Federal Court

            A person appointed as a Judicial Registrar of the Industrial Relations Court is taken, by force of this item, to have been appointed by the Governor‑General under section 18AA of the Federal Court of Australia Act 1976 as a Judicial Registrar of the Federal Court:

             (a)  for the balance of the term of that person’s appointment as a Judicial Registrar of the Industrial Relations Court; and

             (b)  on the same terms and conditions as attached to that last‑mentioned appointment.

74  Judicial Registrars of the Industrial Relations Court to continue to hold that office

(1)        Despite the repeal of Division 3 of Part XIV of the Workplace Relations Act:

                     (a)  a Judicial Registrar of the Industrial Relations Court immediately before that repeal continues to hold that office for the balance of the term of his or her appointment or until the completion day, whichever first occurs, on the terms and conditions (other than terms and conditions relating to remuneration and allowances) originally attaching to that appointment; and

                     (b)  the provisions of that Division continue to apply in relation to the performance by that person of his or her functions as a Judicial Registrar of the Industrial Relations Court for so long as he or she continues to hold that office;

            as if that Division had not been repealed.

(2)        In calculating the remuneration and allowances payable to a Judicial Registrar of the Industrial Relations Court, all duties of the Judicial Registrar performed on or after the transfer day by the Judicial Registrar in his or her capacity as Judicial Registrar of the Industrial Relations Court are to be treated as if they were duties performed by the Judicial Registrar in his or her capacity as Judicial Registrar of the Federal Court.

75  Registrar of Industrial Relations Court taken to be appointed to Federal Court

(1)        The person holding the office of Registrar of the Industrial Relations Court immediately before the transfer day is taken, by force of this item, to have been duly appointed under section 18N of the Federal Court of Australia Act 1976 as a Deputy Registrar of the Federal Court:

                     (a)  for the balance of that person’s appointment as the Registrar of the Industrial Relations Court; and

                     (b)  on:

                              (i)  the same terms and conditions (other than terms and conditions relating to remuneration and allowances) as attached to the last‑mentioned appointment and as varied by the Chief Judge of the Federal Court with the agreement of that person from time to time; and

                             (ii)  the same terms and conditions relating to remuneration and allowances applicable to the Industrial Registrar of the Australian Industrial Relations Commission from time to time.

(2)        Despite subsection 18N(4) of the Federal Court of Australia Act 1976, the person taken to have been appointed as a Deputy Registrar under subitem (1) is not taken to have been so appointed under the Public Service Act 1922.

(3)        The Registrar of the Federal Court may issue any necessary directions concerning the performance by that person of functions of a Deputy Registrar of the Federal Court.

(4)        Nothing in this item enables the Registrar of the Federal Court to terminate the appointment of that person as a Deputy Registrar of the Federal Court under section 18N of the Federal Court of Australia Act 1976.

76  Registrar of Industrial Relations Court to continue to hold that office

(1)        Despite the repeal of sections 390 to 392 and sections 394 to 399 of the Workplace Relations Act:

                     (a)  the person holding office as Registrar of the Industrial Relations Court immediately before the repeal of those sections continues to hold that office for the balance of the term of his or her appointment or until the completion day, whichever first occurs, on the terms and conditions (other than terms and conditions relating to remuneration and allowances) originally attaching to his or her appointment; and

                     (b)  those sections continue to apply in relation to the performance by that person of his or her functions as Registrar of the Industrial Relations Court for so long as he or she continue to hold that office;

            as if those sections had not been repealed.

(2)        In calculating the remuneration and allowances payable to the Registrar of the Industrial Relations Court, all duties performed on or after the transfer day by the Registrar in his or her capacity as Registrar of the Industrial Relations Court are to be treated as if they were duties performed by the Registrar in his or her capacity as Deputy Registrar of the Federal Court.

77  Transfer of personnel from the Industrial Relations Court to the Federal Court

(1)        Subject to this item, persons appointed or employed under the Public Service Act 1922 whether as officers of the Industrial Relations Court or as other registry staff are, by force of this item, transferred, on the transfer day, to the Federal Court to perform such duties as the Registrar of the Federal Court directs.

(2)        Persons appointed as Deputy Sheriffs of the Industrial Relations Court are taken to hold office (until the Registrar of the Federal Court otherwise directs) as Deputy Sheriffs of the Federal Court and, for that purpose, in addition to any other powers and functions, continue to have, in relation to the exercise of the industrial relations jurisdiction of the Federal Court, the powers and functions conferred on them, or exercisable by them, in their capacity as officers of the Industrial Relations Court.

(3)        In this item:

industrial relations jurisdiction, in relation to the Federal Court, means the jurisdiction vested in the Court under item 63 of this Schedule or under Part XIV of the Workplace Relations Act.

78  Chief Justice of Industrial Relations Court to continue to be responsible for management of that Court

            Despite the repeal of sections 363 and 389 of the Workplace Relations Act, the Chief Justice, or in the circumstances identified in section 363, the acting Chief Justice of the Industrial Relations Court, continues to have, until the completion day, the responsibility imposed, and the powers conferred, by those sections in relation to the management of the administrative affairs of the Industrial Relations Court as if those sections had not been repealed.

79  Places of sitting, constitution and conduct of business of the Industrial Relations Court

            Despite the repeal of sections 369 to 374 of the Workplace Relations Act, those sections continue to apply, until the completion day, in relation to the places of sitting of the Industrial Relations Court, the manner of its constitution for the purpose of exercising its jurisdiction in respect of matters still to be dealt with by the Court and the conduct of its business, as if those sections had not be repealed.

80  Powers of other officers and staff may be performed by officers and staff of Federal Court

            Despite the repeal of sections 401 and 402 of the Workplace Relations Act, the functions of the Industrial Relations Court ordinarily performed by District Registrars, Deputy Registrars and Deputy District Registrars, Sheriffs, Deputy Sheriffs and other staff of the Industrial Relations Court may be performed by officers and staff of the Federal Court made available for the purpose.

81  Provision of resources by the Federal Court

            On and after the transfer day, the Chief Judge of the Federal Court may arrange with the Chief Justice of the Industrial Relations Court for staff, facilities and any other necessary support to be made available to the Industrial Relations Court for the purposes of the Industrial Relations Court.

82  Sections 405 and 406 to continue in force in respect of part year to completion day

            Despite the repeal of sections 405, 406 and 407 of the Workplace Relations Act, those sections continue to be in force in respect of the part of the financial year in which the completion day occurs that precedes that day as if that part of the year had been a whole financial year and those sections had not been repealed.

83  Delegations of administrative powers of Chief Justice

            The Chief Justice of the Industrial Relations Court may, in writing, delegate to any one or more of the Judges of that Court all or any of his or her powers under section 389 of the Workplace Relations Act as continued in force under this Act, and any delegation made under section 408 of that Act has effect, on and after the repeal of that section, as if it were a delegation under this item.

84  Abolition of the Industrial Relations Court

            On the day fixed by Proclamation, being a day on which no person holds office as a Judge of the Industrial Relations Court, that Court is abolished by force of this item.

85  Instrument of appointment

            The instrument appointing the present Chief Judge of the Federal Court of Australia to that office has effect on and after the day on which Part 1 of this Schedule commences, as if it were an instrument duly appointing that person to the office of Chief Justice of that Court.

86  Acts or things done

            Any act or thing done by the Chief Judge of the Federal Court of Australia before the day on which Part 1 of this Schedule commences has effect, on and after that day, as if it were an act or thing done by the Chief Justice of that Court.

87  Instruments made or issued

(1)        Any order, determination or other instrument (however described) made or issued by the Chief Judge of the Federal Court of Australia before the day on which Part 1 of this Schedule commences has effect, on and after that day, as if it were an order, determination or other instrument made or issued by the Chief Justice of that Court.

(2)        Any reference in a determination or other instrument made in relation to the Chief Judge of the Federal Court of Australia before the day on which Part 1 of this Schedule commences has effect, on and after that day, as if it were a reference to the Chief Justice of that Court.

88  Applications and proceedings

            Any application (however described) made to, or any proceedings begun against, the Chief Judge of the Federal Court of Australia before the day on which Part 1 of this Schedule commences has effect, on and after that day, as if it were an application made to, or proceedings begun against the Chief Justice of that Court.

89  Reference to Chief Judge in other Acts

            Any reference in an Act:

                     (a)  that refers to the Chief Judge of the Federal Court of Australia; and

                     (b)  that is not expressly amended by this Act;

            is to be taken, on and after the day on which Part 1 of this Schedule commences, to be a reference to the Chief Justice of that Court.

Part 4—Contingent amendments of the Federal Court of Australia Act 1976 concerning Judicial Registrars

90  Consequences of certain prior amendments of Federal Court of Australia Act 1976

            If, on any day before item 19 of this Schedule commences, the Federal Court of Australia Act 1976 is amended by any Act inserting a new section 18AA providing for the appointment of Judicial Registrars of the Federal Court of Australia and a new section 18AB allowing those Judicial Registrars to exercise specified powers, then, with effect from that day or the day this Act receives the Royal Assent, whichever last occurs, items 19 and 27 are omitted from this Schedule and the following items are substituted for item 19:

19  After subsection 18AB(1)

Insert:

          (1A)  The Rules of Court may also delegate to the Judicial Registrars, either generally or as otherwise provided by the Rules, all or any of the Court’s powers in relation to proceedings in the Court that involve:

                     (a)  a claim under the Workplace Relations Act 1996 for an amount of not more than the amount specified in the Rules; or

                     (b)  a claim under the Workplace Relations Act 1996 that the termination of an employee’s employment was unlawful, or that the proposed termination of an employee’s employment would be unlawful, under any law (including an unwritten law) of the Commonwealth or of a State or Territory; or

                     (c)  an application under section 170JC of the Workplace Relations Act 1996 for enforcement of an order of the Australian Industrial Relations Commission.

          (1B)  For the purposes of paragraph (1A)(a), the Rules may specify an amount of not more than:

                     (a)  $10,000; or

                     (b)  such greater amount as the regulations prescribe.

19A  Subsections 18AB(2), (5) and (6)

After “subsection (1)” (wherever occurring), insert “or (1A)”.

19B  Subsection 18AI(2)

Omit “Judge” (wherever occurring), substitute “Justice”.

 

Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (No. 24, 2001)

4  Application of amendments

             (1)  Subject to subsection (3), each amendment made by this Act applies to acts and omissions that take place after the amendment commences.

             (2)  For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.

 

Abolition of Compulsory Age Retirement (Statutory Officeholders) Act 2001 (No. 159, 2001)

Schedule 1

97  Application of amendments

The amendments made by this Schedule do not apply to an appointment if the term of the appointment began before the commencement of this item.

 

Jurisdiction of Courts Legislation Amendment Act 2002 (No. 70, 2002)

Schedule 1

12  Definitions

In this Part:

ACT Supreme Court means the Supreme Court of the Australian Capital Territory.

Federal Court means the Federal Court of Australia.

13  Application of amendments

(1)        The amendment made by item 1 applies in relation to:

                     (a)  appeals instituted on or after the commencement of that item; and

                     (b)  appeals instituted before the commencement of that item but in respect of which the Federal Court has not begun a substantive hearing before that commencement; and

                     (c)  cases stated or questions reserved under section 26 of the Federal Court of Australia Act 1976 on or after the commencement of that item.

(2)        The amendment made by item 2 applies in relation to:

                     (a)  appeals from judgments of a court given on or after the commencement of that item; and

                     (b)  cases stated or questions reserved under section 26 of the Federal Court of Australia Act 1976 on or after the commencement of that item.

(3)        The amendment made by item 7 applies in relation to matters pending in the Federal Court on or after the commencement of that item.

14  Transfer of certain matters to the ACT Supreme Court

(1)        If an appeal was instituted in the Federal Court and the Federal Court had not begun the substantive hearing of the appeal before the day on which item 1 commences, then the appeal is transferred to the ACT Supreme Court on that day.

(2)        If a case was stated or a question was reserved for the consideration of the Federal Court under section 26 of the Federal Court of Australia Act 1976 and the Federal Court had not begun the substantive hearing of the case or question before the day on which item 1 commences, then the case or question is transferred to the ACT Supreme Court on that day.

(3)        If a question was submitted for determination of a Full Court of the Federal Court under section 30A of the Federal Court of Australia Act 1976 and the Federal Court had not begun the substantive hearing of the question before the day on which item 6 commences, then the question is transferred to the ACT Supreme Court on that day.

(4)        If an appeal, case or question is transferred to the ACT Supreme Court under this item, then:

                     (a)  all documents filed in the Federal Court in relation to the appeal, case or question are to be transferred to the ACT Supreme Court; and

                     (b)  any money lodged with the Federal Court in relation to the appeal, case or question is to be transferred to the ACT Supreme Court and is taken to be money lodged with the ACT Supreme Court in relation to the appeal, case or question; and

                     (c)  everything done in or in relation to the appeal, case or question in the Federal Court is taken to have been done in the ACT Supreme Court.

15  Regulations

(1)        The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by this Schedule to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Schedule.

(2)        In particular, regulations may be made for matters of a transitional or saving nature arising from the amendments made by this Schedule.

Schedule 2

25  Application of amendments

(1)        The amendment made by item 6 applies in relation to matters coming before the Court before, on or after the commencement of this item.

(2)        The amendments made by items 7, 8 and 9 apply in relation to matters coming before the Court after the commencement of this item.

(4)        The amendment made by item 11 applies in relation to appeals to the Court brought after the commencement of this item.

(5)        The amendments made by items 13 and 14 apply in relation to documents issued from the Court after the commencement of this item.

(6)        The amendments made by items 1, 2, 12, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 apply in relation to proceedings instituted in the Court before, on or after the commencement of this item.

 

Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 (No. 140, 2003)

4  Transitional provisions

             (1)  If legislation introduced into the Parliament before the commencing day but commencing on or after that day:

                     (a)  authorises an instrument to be made in the exercise of a power delegated by the Parliament; and

                     (b)  is expressed to require that instrument to be published as a statutory rule under the Statutory Rules Publication Act 1903;

any instrument so made is taken to be an instrument referred to in paragraph 6(b) of the Legislative Instruments Act 2003 despite the repeal by this Act of the Statutory Rules Publication Act 1903.

             (2)  If legislation introduced into the Parliament before the commencing day but commencing on or after that day:

                     (a)  authorises an instrument to be made in the exercise of a power delegated by the Parliament; and

                     (b)  is expressed to declare that instrument to be a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901;

any instrument so made is taken to be an instrument referred to in subparagraph 6(d)(i) of the Legislative Instruments Act 2003 despite the repeal by this Act of section 46A of the Acts Interpretation Act 1901.

             (3)  If legislation that is in force immediately before the commencing day or that is introduced into the Parliament before that day but that commences on or after that day:

                     (a)  authorised or authorises an instrument to be made in the exercise of a power delegated by the Parliament that adversely affects the rights of a person, or results in the imposition of liabilities on a person; and

                     (b)  provided or provides that the instrument has effect, to the extent that it adversely affects those rights or results in the imposition of those liabilities, despite subsection 48(2) of the Acts Interpretation Act 1901, before the date of its notification in the Gazette;

that legislation is to be construed, on and after the commencing day or the day of its commencement, whichever last occurs, as if it had provided instead that the instrument, to the extent that it adversely affects those rights or results in the imposition of those liabilities, has effect, despite subsection 12(2) of the Legislative Instruments Act 2003, before its registration under that Act.

             (4)  If:

                     (a)  legislation (the enabling legislation) in force immediately before the commencing day:

                              (i)  authorises the making of an instrument; and

                             (ii)  does not declare such an instrument to be a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 but nonetheless makes provision for its disallowance by the application, with or without modification, of the provisions of Part XII of that Act; and

                     (b)  an instrument is made in the exercise of that authority on or after the commencing day; and

                     (c)  the instrument is not a legislative instrument for the purposes of the Legislative Instruments Act 2003 or otherwise;

the enabling legislation has effect, on and after the commencing day, as if:

                     (d)  it had declared such instruments to be disallowable instruments for the purposes of section 46B of the Acts Interpretation Act 1901; and

                     (e)  it had provided for such modifications of the operation of that section as are necessary to ensure that the effect of the applied provisions of Part XII of the Acts Interpretation Act 1901 is preserved.

             (5)  In this section:

commencing day means the commencing day within the meaning of the Legislative Instruments Act 2003.

 

Law and Justice Legislation Amendment Act 2004 (No. 62, 2004)

Schedule 1

20  Application of items 18 and 19

(1)        The amendment made by item 18 applies to matters commenced on or after the day on which that item commences.

(2)        The amendment made by item 19 applies to appeals commenced on or after the day on which that item commences.