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1999
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
FEDERAL MAGISTRATES (CONSEQUENTIAL AMENDMENTS) BILL 1999
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments and New Clauses to be Moved on Behalf of the Government
(Circulated by the authority of the
Attorney-General,
the Honourable Daryl Williams AM QC
MP)
ISBN: 0642 424802
AMENDMENTS TO
THE
FEDERAL MAGISTRATES (CONSEQUENTIAL
AMENDMENTS) BILL 1999
OUTLINE OF
AMENDMENTS
The Federal Magistrates Bill
establishes the Federal Magistrates Court. The Federal Magistrates
(Consequential Amendments) Bill makes consequential amendments to give the
Federal Magistrates Court concurrent jurisdiction with either the Federal Court
of Australia or the Family Court of Australia under various Acts, and makes
other minor consequential amendments to a number of other
Acts.
Amendments 1 corrects a minor drafting error.
Amendments 2 - 4 make minor amendments to the
provisions in the Child Support (Assessment) Act 1989 dealing with
appeals from the Federal Magistrates Court to the Family Court of
Australia.
Amendments 5 - 7 make minor amendments
to the provisions in the Child Support (Registration and Collection) Act 1988
dealing with appeals from the Federal Magistrates Court to the Family Court
of Australia.
Amendments 8 - 10 make minor
amendments to the provisions in the Family Law Act 1975 dealing with
appeals from the Federal Magistrates Court to the Family Court of
Australia.
Amendment 11 corrects a minor drafting
error.
Amendment 12 ensures that federal
magistrates will not be covered by the Maternity Leave (Commonwealth
Employees) Act 1973.
FINANCIAL IMPACT
STATEMENT
The amendments to the Bill will not
have any significant financial impact.
NOTES ON AMENDMENTS
Amendment 1
This amendment adds another consequential amendment to Schedule 4, amending the Administrative Decisions (Judicial Review) Act 1977. It replaces the term “Rules of Court” with the term “Federal Court Rules” in paragraph 18A(3)(f), consistent with the other amendments being made to this Act in the Bill.
Amendment 2
This amendment will allow the Family Court, when hearing an appeal from the Federal Magistrates Court under the Child Support (Assessment) Act 1989, to be able to give its reasons for decision in short form, in accordance with the rules of court made by the Family Court, if an appeal does not raise any general question of principle.
Amendments 3 and 4
These
amendments will give single Judges of the Family Court as well as the Full Court
the power to reinstate appeals deemed to be abandoned and to stay orders of the
Family Court in relation to appeals from the Federal Magistrates Court under the
Child Support (Assessment) Act 1989. A single Judge has the power to
make such orders in any such appeal, regardless of whether the Chief Justice has
decided that a particular appeal is to be heard by a single Judge or not.
Amendment 5
This amendment will allow the Family Court, when hearing an appeal from the Federal Magistrates Court under the Child Support (Registration and Collection) Act 1988, to be able to give its reasons for decision in short form, in accordance with the rules of court made by the Family Court, if an appeal does not raise any general question of principle.
Amendments 6 and 7
These
amendments will give single Judges of the Family Court as well as the Full Court
the power to reinstate appeals deemed to be abandoned and to stay orders of the
Family Court in relation to appeals from the Federal Magistrates Court under the
Child Support (Registration and Collection) Act 1988. A single Judge has
the power to make such orders in any such appeal, regardless of whether the
Chief Justice has decided that a particular appeal is to be heard by a single
Judge or not.
Amendment 8
This amendment will allow the Family Court, when hearing an appeal from the Federal Magistrates Court under the Family Law Act 1975, to be able to give its reasons for decision in short form, in accordance with the rules of court made by the Family Court, if an appeal does not raise any general question of principle.
Amendments 9 and 10
These
amendments will give single Judges of the Family Court as well as the Full Court
the power to reinstate appeals deemed to be abandoned and to stay orders of the
Family Court in relation to appeals from the Federal Magistrates Court under the
Family Law Act 1975. A single Judge has the power to make such orders in
any such appeal, regardless of whether the Chief Justice has decided that a
particular appeal is to be heard by a single Judge or not.
Amendment 11
This amendment corrects a misdescription of the paragraph of the Human Rights and Equal Opportunity Commission Act 1986 which is being amended by item 20 of Schedule 16.
Amendment 12
This amendment ensures that federal magistrates (appointed under the Federal Magistrates Bill 1999) will not be covered by the Maternity Leave (Commonwealth Employees) Act 1973. This Act provides for partly paid and partly unpaid leave. Judges of existing federal courts are not presently covered by this Act.
It would not be appropriate for this Act to apply to federal magistrates as they will be appointed as justices under section 72 of the Constitution. Paragraph 72(iii) of the Constitution provides that the remuneration of justices cannot be diminished during their continuance in office. The Solicitor-General has advised that there is a substantial risk that a provision allowing a federal magistrate to take leave without pay would be inconsistent with section 72(iii) of the Constitution. This means that any maternity leave taken by federal magistrates would have to be paid leave.
It is not, of course, intended that federal magistrates not be entitled to any maternity leave. Rather, that any leave taken by federal magistrates would be paid leave, as must be the case for justices of any of the courts established by the Commonwealth. Entitlements of federal magistrates to maternity leave will be dealt with in a determination covering their terms and conditions of appointment.