Federal Register of Legislation - Australian Government

Primary content

Rules/Court & Tribunal Rules as made
These rules amend the Federal Court Rules 2011 to make changes consequential to the enactment of the Federal Court (Criminal Proceedings) Rules 2016.
Administered by: Attorney-General's
Registered 09 Nov 2016
Tabling HistoryDate
Tabled HR10-Nov-2016
Tabled Senate21-Nov-2016
Date of repeal 10 May 2017
Repealed by Self Repealing

EXPLANATORY STATEMENT

 

 

 

Issued by the authority of the

Judges of the Federal Court of Australia

 

 

Federal Court Legislation Amendment (Criminal Proceedings) Rules 2016

 

 

Authority for Federal Court Rules

Section 59 of the Federal Court of Australia Act 1976 permits the Judges of the Court, or a majority of them, to make Rules of Court not inconsistent with that Act.  These rules may provide for the practice and procedure to be followed in the Court and in Registries of the Court.  They may extend to all matters incidental to any such practice or procedure that are necessary or convenient to be prescribed for the conduct of any business of the Court.

 

Under sub-section 59(4) of the Federal Court of Australia Act 1976, the Legislation Act 2003 (other than sections 8, 9, 10 and 16 of that Act) applies in relation to rules of court made by the Court under the Federal Court of Australia Act 1976 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 the Federal Court of Australia Act 1976.

 

Purpose

 

These Rules are consequential to the enactment of the Federal Court (Criminal Proceedings) Rules 2016.

 

The Rules will repeal the Federal Court (Criminal Proceedings) (Interim) Rules 2016, which will not be needed when the Federal Court (Criminal Proceedings) Rules 2016 come into force.

 

The Rules will also amend the Federal Court Rules 2011 to make changes consequential to the enactment of the Federal Court (Criminal Proceedings) Rules 2016.   In particular the Rules will repeal provisions in the Federal Court Rules 2011 which deal with summary prosecutions and criminal appeals.  Those topics will be covered by the Federal Court (Criminal Proceedings) Rules 2016.

 

The Rules include transitional provisions to preserve the operation of all the repealed Rules to proceedings commenced while they were in force.

Commencement

 

The Federal Court Legislation Amendment (Criminal Proceedings) Rules 2016 will come into operation on the same day as the Federal Court (Criminal Proceedings) Rules 2016.  Those Rules will come into operation the day after they are registered.

 

Human Rights Scrutiny

 

Subsection 8(8) of the Legislation Act provides that Rules of Court made for the Federal Court are not legislative instruments for the purposes of that Act.  As a result the Human Rights (Parliamentary Scrutiny) Act 2011 does not apply to any such Rules of Court and no statement of compatibility for the purposes of that latter Act is included in this Explanatory Statement.

 

Attachment

 

The Federal Court Legislation Amendment (Criminal Proceedings) Rules 2016 are explained in the Attachment.

 

The Federal Court (Criminal Proceedings) Rules 2016 are explained in the Explanatory Statement for those Rules.

 


 

ATTACHMENT

 

 

Federal Court Legislation Amendment (Criminal Proceedings) Rules

 

Item 1 provides that the Rules will be the Federal Court Legislation Amendment (Criminal Proceedings) Rules 2016.

 

Item 2 provides that the whole of the Rules will commence at the same time as the Federal Court (Criminal Proceedings) Rules 2016.

 

Item 3 notes that the Rules are made under the authority of the Federal Court of Australia Act 1976.

 

Item 4 provides that the Rules will be repealed after six months.  By that time any criminal proceedings before the Federal Court that were commenced before the Federal Court (Criminal Proceedings) Rules 2016 came into force will have been finalised.

 

Item 5 provides that each instrument specified in the Schedule to the Rules will be amended or repealed as set out in the Schedule.

 

Schedule 1 - Repeals

 

Part 1 - Repeals

 

·         Item 1 will repeal the Federal Court (Criminal Proceedings) (Interim) Rules 2016.

 

Part 2 – Transitional provisions

 

·         Item 2 will preserve the operation of the Federal Court (Criminal Proceedings) (Interim) Rules 2016 to any proceedings commenced while they were in force.

 

Schedule 2 – Other amendments

 

·         Item 1 will add a note referring to Federal Court (Criminal Proceedings) Rules 2016 at the end of Rule 1.04 of the Federal Court Rules 2011.

 

·         Item 2 will add a note referring to Rule 1.10 of Federal Court (Criminal Proceedings) Rules 2016 to Rule 3.01 of the Federal Court Rules 2011.

 

·         Item 3 will repeal Division 34.2 of the Federal Court Rules 2011, which deals with summary criminal proceedings.  Rules for summary criminal proceedings will appear in Part 2 of the Federal Court (Criminal Proceedings) Rules 2016.

 

·         Item 4 will delete a reference to subrule 34.14 from subrule 35.32 of the Federal Court Rules 2011.  Subrule 34.14 is part of Division 34.2, which will be repealed under Item 3 of this Schedule.

 

·         Item 5 will repeal Part 37 of the Federal Court Rules 2011, which deals with criminal appeals from the Supreme Court of a Territory.  Rules for criminal appeals will appear in Part 4 of the Federal Court (Criminal Proceedings) Rules 2016.

 

·         Item 6 will add two transitional Rules to the Federal Court Rules 2011.

 

·           New Rule 43.01 will preserve the operation of the repealed provisions of the Federal Court Rules 2011 for any proceedings that are on foot when the provisions are repealed.

 

·           New Rule 43.02 will repeal the two transitional Rules after six months.  By that time any relevant proceedings before the Federal Court that were commenced before the Federal Court (Criminal Proceedings) Rules 2016 came into force will have been finalised.

 

 

---------