PART 2: OVERVIEW OF THE FEDERAL MAGISTRATE'S COURT

Transcription

1 PART 2: OVERVIEW OF THE FEDERAL MAGISTRATE'S COURT

2 PART 2: OVERVIEW OF THE FEDERAL MAGISTRATES COURT ABOUT THE COURT The Federal Magistrates Court of Australia was established by the Federal Magistrates Act 1999 (the Act) as an independent federal court under Chapter III of the Australian Constitution. The Court was established to handle less complex matters in the areas of family law and general federal law. The Court is a federal court of record and a court of law and equity. It sits in all capital cities and selected major regional centres. Objective The objective of the Court is to provide a simple and more accessible alternative to litigation in the Family Court of Australia (Family Court) and the Federal Court of Australia (Federal Court) and to relieve the workload of the superior federal courts. The provisions of the Act enable the Court to operate as informally as possible in the exercise of judicial power, use streamlined procedures and make use of a range of dispute resolution processes to resolve matters without judicial decisions. Jurisdiction The jurisdiction of the Court includes family law and child support and the following areas of general federal law: administrative law, admiralty law, bankruptcy, consumer law (formerly trade practices), copyright, human rights, industrial, migration and privacy. The Court shares these jurisdictions with the Family Court and the Federal Court. The provisions of the Act enable the Court to operate as informally as possible in the exercise of a range of dispute resolution processes to resolve matters without decisions. Family law and child support The Court exercises all aspects of jurisdiction in the Family Law Act 1975 with the exception of adoption and applications for nullity or validity of marriage. The Court has the same jurisdiction as the Family Court in relation to child support. 22 Federal Magistrate's Court of Australia Annual Report

3 This includes: applications for divorce applications concerning spousal maintenance property disputes (including de facto jurisdiction) all parenting orders, including those providing for where a child lives, who a child spends time and communicates with, and maintenance or specific issues enforcement of orders made by either the Federal Magistrates Court or the Family Court location and recovery orders as well as warrants for the apprehension or detention of a child determination of parentage and recovery of child-bearing expenses, and any matter transferred to it by the Family Court. General federal law The Court deals with a wide range of matters, sharing jurisdiction with the Federal Court and, in some cases, state courts. The Court s rules and procedures are simpler and less formal and aim to reduce the cost and number of court appearances. The Court can hear and decide matters relating to administrative law, admiralty law, bankruptcy, consumer law (formerly trade practices), copyright, human rights, industrial, migration, and privacy and any matter transferred from the Federal Court. Where the Court has jurisdiction in a matter, it also has jurisdiction to determine associated or inseverable claims which would otherwise not be within jurisdiction. Following is more information about the Court s jurisdiction in these various areas of general federal law. Administrative Matters under the Administrative Decisions (Judicial Review) Act 1997, and Appeals from the Administrative Appeals Tribunal remitted from the Federal Court. Admiralty In personam actions (claims against a specific person or company) such as freight claims, damage claims and seafarers wages, and In rem actions remitted by the Federal Court and state supreme courts. Bankruptcy All civil claims and matters under the Bankruptcy Act 1966, except those requiring jury trials. PART 2: OVERVIEW OF THE FEDERAL MAGISTRATE'S COURT 23

4 Consumer The Court has jurisdiction with respect to claims under the following provisions of the Competition and Consumer Act 2010 (formerly the Trade Practices Act 1974): Section 46 (Misuse of Market Power) Section IVB (Industry Codes) Part XI (Application of the Australian Consumer Law as a law of the Commonwealth), and Schedule 2 (Australian Consumer Law). The Court can provide injunctive relief and award damages up to $750,000. In relation to certain claims for $40,000 or less, litigants can elect to use the small claims procedure of the Court. Copyright Civil claims and matters under Parts V, VAA, IX and section 248J of the Copyright Act 1968, such as claims for injunctions and damages for breach of copyright. Human rights Federal unlawful discrimination matters under the Australian Human Rights Commission Act 1986 relating to complaints under the: Age Discrimination Act 2004 Disability Discrimination Act 1992 Racial Discrimination Act 1975, and Sex Discrimination Act Industrial The Federal Magistrates Court has concurrent jurisdiction with the Federal Court for matters under the: Fair Work Act 2009 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, and Workplace Relations Act 1996 (in so far as it continues to apply). This jurisdiction is to be exercised by the Fair Work Division of the Court. The Fair Work Act 2009 confers small claims jurisdiction on the Court for various matters if the compensation is not more than $20,000. The Court also has jurisdiction in relation to certain matters under the: Building and Construction Industry Improvement Act 2005 (note this jurisdiction ceased 1 June 2012), and Independent Contractors Act Federal Magistrate's Court of Australia Annual Report

5 Migration Most first instance judicial reviews of visa-related decisions of the Migration Review Tribunal and the Refugee Review Tribunal. In addition, the Court has jurisdiction in relation to review of offshore entry person s determination. The Court does not have jurisdiction to undertake a merits review of these types of decisions. Privacy Enforcing determinations of the Privacy Commissioner and private sector adjudicators under the Privacy Act The Court also has jurisdiction to hear any matter within the jurisdiction of the Federal Court which the Federal Court transfers to the Federal Magistrates Court. Changes to the Court s jurisdiction during The Attorney-General announced on 26 April 2012 that the Government would not proceed with the proposed merger of the Federal Magistrates Court and the Family Court. In addition it was announced that the name of the Federal Magistrates Court and title of federal magistrates will change to better reflect their important role in the judicial system. Consultation is now underway as to an appropriate name before legislation is introduced to implement this change. As part of this announcement, the Attorney-General indicated that in the context of the family law jurisdiction, consideration would be given to developing a clearer and better understood apportionment of work and jurisdiction between the courts. The following Acts have received assent during the year and impact on the general federal law jurisdiction of the Court: Work Health and Safety Act 2011 came into force on 1 January The Act gives the Federal Magistrates Court and the Federal Court a broad jurisdiction in any civil proceedings under the Act concurrent with state/ territory courts. The Act makes provision for certain applications to be exercised in the Fair Work Division of the Court. Intellectual Property Laws Amendment (Raising the Bar) Act 2012 will commence 15 April 2013 and includes amendments conferring jurisdiction under the Designs Act 2003 and the Trade Mark Act The Court will have jurisdiction to hear appeals against decisions, directions and orders of the registrar. Fair Work Amendment (Textile, Clothing and Footwear Industry) Act 2012 commenced 1 July The Act amends the Fair Work Act 2009 (FWA) to extend the operation of most provisions of the FWA to contract outworkers in the textile clothing and footwear industry and provide a mechanism for such outworkers to recover unpaid amounts up the supply chain. Road Safety Remuneration Act 2012 (and consequential Act) commenced 1 July The Act will establish a new Road Safety Remuneration Tribunal which will be empowered to inquire into sectors, issues and practices within the road transport industry and, where appropriate, determine mandatory minimum rates of pay and related PART 2: OVERVIEW OF THE FEDERAL MAGISTRATE'S COURT 25

6 conditions for employed and self-employed drivers. The Bill also establishes a compliance regime and confers compliance powers on the Fair Work Ombudsman (FWO). This jurisdiction will be analogous to the jurisdiction conferred on the courts by the FWA and the Independent Contractors Act Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act 2012 commences on 20 September The Act amends the Extradition Act and the Mutual Assistance Act, to confer personal powers on a federal magistrate who has provided consent, to exercise powers under these Acts. As one part of a package of legislation in relation to the shipping industry, the Parliament passed the Coastal Trading (Revitalising Australian Shipping) Act 2012 which provides for the regulatory framework for a vessel s access to coastal trading in Australian waters. The Act provides for civil penalty provisions and confers jurisdiction from 1 July 2012 on the Federal Magistrates Court and the Federal Court. Tertiary Education Quality and Standards Agency Act 2011 commenced on 29 January 2012 and conferred certain civil penalty powers of the Court. Amendments to the Federal Magistrates Court Rules 2001 Federal Magistrates Court Amendment Rules 2012 (No 1) These rules included the following amendments to the Federal Magistrates Court Rules 2001: consequential amendments as a result of the implementation of the Federal Court Rules 2011 consequential amendments to facilitate the family violence amendments to the Family Law Act 1975 as implemented by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 amendments to the address for service rules to facilitate the authorisation of ordinary service by , and amendments to Schedule 1 costs to increase the amounts fixed consistent with recommendations of the Joint Costs Advisory Committee and to introduce a new Part 2 of Schedule 1 being costs certain child support proceedings. Most of these amendments commenced on 25 May 2012, save for the amendments made as a consequence of the family violence amendments of the Family Law Act, which commenced on 7 June Amendments to the Federal Magistrates Court (Bankruptcy) Rules 2006 Federal Magistrates Court (Bankruptcy) Amendment Rules 2011 (No 1) These Rules commenced on 1 January 2012 as a consequence of: amendments to the Bankruptcy Act 1966 (Bankruptcy Act) and Bankruptcy Regulations 1996 (Bankruptcy Regulations) made in 2010 by the Bankruptcy Legislation Amendment Act 2010 by the Bankruptcy Legislation Amendment Act 2010 and Bankruptcy Amendment Regulations 2010 (No. 1), and amendments to the Federal Court Rules 2011 on 1 August Federal Magistrate's Court of Australia Annual Report

7 Practice Directions/Information Notices The following practice/information notices were published during the year: Consent Orders in Proceedings Involving a Federal Tribunal Practice Direction No 1 of 2012 Electronic Engrossment of Orders Family Law Matters Victorian and Tasmanian Registries and Circuits, and Relocation List Melbourne Registry. A full list of all practice and information notices is available from the Court s website at: Amendments to the Federal Magistrates Regulations 2000 Federal Magistrates Amendment Regulation 2012 (No 1) The Regulation took effect on 12 May The amendment was in response to the decision in Beasley v The Australian National University [2011] FMCA 792 where the Court found that, due to the operation of section 14 of the Legislative Instruments Act 2003 (LIA) the Rules did not incorporate the rules of the Federal Court as in force from time to time but in the form they stood at the time they were adopted for application in the Court. The amendment was to modify the provisions of the LIA in their application to the Court, to allow any rules of the Court to apply, adopt or incorporate, with or without modification, any rules of other courts, as in force from time to time. Biennial increase from 1 July 2012 Pursuant to the Federal Magistrates Regulations 2000, the fees payable are subject to an automatic biennial increase from 1 July 2012 to reflect changes to the consumer price index. Fair Work Amendment Regulations 2011 (No 4) The Regulations enable an official of an industrial association to represent a party in a small claims proceeding in circumstances where the party is granted leave by the Federal Magistrates Court or a state magistrates court. The Regulations were developed in response to a decision of the Court in Corcoran & Ors v Bansley Pty Ltd [2011] FMCA 440 not to allow the applicants in the matter to be represented by an industrial association. The case identified that while subsection 548(8) of the Act provides that an officer of an industrial association may represent a party in a small claims proceeding in circumstances specified in the Principal Regulations, no such regulations had been made under this provision. PART 2: OVERVIEW OF THE FEDERAL MAGISTRATE'S COURT 27

8 ORGANISATIONAL STRUCTURE Figure 2.1 Federal Magistrates Court organisational structure, 30 June Federal Magistrates and Judicial Committees Chief Federal Magistrate John Pascoe AO CVO Acting Chief Executive Officer Richard Foster PSM Acting Deputy Chief Executive Officer Steve Agnew Principal Registrar Adele Bryne Executive Director Client Services Stephen Andrew Executive Director Information Communication and Technology Acting Phil Hocking Acting Chief Finance Officer Grahame Harriott Judgment Publication Registries Applications Finance Marshal and Security Services Communications Statistics Information Management Human Resources Infrastructure Property Management Accounting Procurement and Risk Management Judicial officers Federal magistrates are appointed by the Governor-General by commission as justices in accordance with Chapter III of the Australian Constitution. A federal magistrate is appointed for a term expiring when they reach the age of 70 years. Section 8 of the Federal Magistrates Act 1999 provides that the Court consists of a Chief Federal Magistrate and such other federal magistrates as appointed. At 30 June 2012, 63 federal magistrates held appointment to the Court (including the Chief Federal Magistrate). More detail on judicial officers can be found at Appendix B. Note: The remuneration arrangements for all judicial officers and the Acting Chief Executive Officer are governed by enforceable determinations of the Remuneration Tribunal. Further details including relevant determinations are available at 28 Federal Magistrate's Court of Australia Annual Report

9 Details of the federal magistrates follow in the table below: Table 2.1 Federal magistrates, 30 June 2012 Chief Federal Magistrate Location Date of appointment John Pascoe Sydney 14 July 2004 Federal magistrate Location Date of appointment Warren Donald Parramatta 13 June 2000 Christine Mead Adelaide 13 June 2000 Michael Baumann Brisbane 19 June 2000 Jim Brewster Canberra 19 June 2000 Norah Hartnett Melbourne 19 June 2000 Stephen Scarlett Sydney 19 June 2000 John Coker Townsville 26 June 2000 Rolf Driver Sydney 31 July 2000 Kenneth Raphael Sydney 31 July 2000 Stuart Roberts Launceston 4 December 2000 Maurice Phipps Melbourne 18 December 2000 Michael Connolly Melbourne 4 June 2001 John Walters Melbourne 29 October 2001 Stewart Brown Adelaide 5 November 2001 Shenagh Barnes Sydney 5 November 2001 Giles Coakes Newcastle 12 January 2004 Stuart Lindsay Adelaide 19 January 2004 Michael Jarrett Brisbane 2 February 2004 Sylvia Emmett Sydney 5 July 2004 Grant Riethmuller Melbourne 19 July 2004 Michael Lloyd-Jones Sydney 26 July 2004 Daniel O Dwyer Melbourne 2 August 2004 Matthew Smith Sydney 2 August 2004 Nick Nicholls Sydney 23 August 2004 Robyn Sexton Sydney 27 September 2004 Kevin Lapthorn Newcastle 29 August 2005 Louise Henderson Parramatta 28 November 2005 Kate Hughes Melbourne 30 January 2006 Heather Riley Melbourne 3 July 2006 Philip Burchardt Melbourne 10 July 2006 John O Sullivan Melbourne 10 July 2006 David Halligan Parramatta 31 July 2006 Toni Lucev Perth 14 August 2006 PART 2: OVERVIEW OF THE FEDERAL MAGISTRATE'S COURT 29

10 Federal magistrate Location Date of appointment Frank Turner Melbourne 3 October 2006 Robert Cameron Sydney 3 October 2006 Tom Altobelli Sydney 13 November 2006 Michael Burnett Brisbane 24 November 2006 Stephen Coates Brisbane 27 November 2006 Leanne Spelleken Brisbane 11 December 2006 Charlotte Kelly Adelaide 12 March 2007 Janet Terry Darwin 10 April 2007 Denys Simpson Adelaide 12 June 2007 Warwick Neville Canberra 2 July 2007 Dale Kemp Sydney 4 July 2007 Paul Howard Brisbane 9 July 2007 Susan Purdon-Sully Brisbane 15 October 2007 Margaret Cassidy Brisbane 5 November 2007 Evelyn Bender Melbourne 15 September 2008 Anne Demack Brisbane 22 September 2008 Judith Walker Sydney 22 September 2008 Terry McGuire Melbourne 6 October 2008 David Dunkley Sydney 13 October 2008 Barbara Baker Hobart 27 October 2008 Geoffrey Monahan Melbourne 3 November 2008 Peter Cole Adelaide 24 November 2008 Josephine Willis Cairns 27 January 2009 Dominica Whelan Melbourne 24 May 2010 Joseph Harman Parramatta 7 June 2010 Leanne Turner Darwin 7 June 2010 Garry Foster Newcastle 18 April 2011 Matthew Myers Newcastle 23 January 2012 Ron Curtain Melbourne 23 January 2012 Appointments and retirements, There were two appointments and no retirements during the reporting period. Federal Magistrate Matthew Myers was appointed on 23 January Federal Magistrate Ron Curtain was appointed on 23 January Federal Magistrate's Court of Australia Annual Report

11 Vale Federal Magistrate Slack Federal Magistrate Keith Slack passed 17 December 2011, surrounded by his loving family, after a long and brave struggle with cancer. Keith was appointed to the Brisbane registry of the Federal Magistrates Court on 12 September 2005, following a career both at the Bar and in private practise spanning more than 25 years. As a practitioner, he volunteered his time to a number of organisations with a strong social focus, such as the Woodridge Youth and Family Service, the Youth Advocacy Centre and Queensland Advocacy Incorporated. His significant contribution as a federal magistrate, in a busy registry, benefited from his extensive experience as a practitioner. He established the Toowoomba circuit and worked the Lismore circuit. Keith s career with the Court was marked by good humour and collegiality. He faced the trials of his illness with great courage, and through this difficult period in his life he maintained the same positive spirit with which he tackled his court duties. A special valedictory sitting of the Court was held on 26 April 2012 commemorating the life and work of Keith Slack. Federal magistrates and Keith s family joined members of the profession, friends and colleagues to fill court 1 in the Brisbane registry. The sitting was a fitting tribute to the impact that Keith made both in relation to his work as a member of the Court and, more generally, family law. He will be greatly missed. Staff of the Court Court staff are employed under the Public Service Act At 30 June 2012, the Court had 165 employees covered by the Federal Magistrates Court of Australia and Family Court of Australia Enterprise Agreement and Australian Workplace Agreements (excluding judicial officers, the Acting Chief Executive Officer and casual employees). This was a 2.94 per cent decrease compared with 170 employees at 30 June More details on staffing levels can be found at Appendix B. Most staff are employed in the chambers of federal magistrates. Each federal magistrate is supported by two employees, who undertake the administrative responsibilities associated with the day-to-day management of chambers and court, including duties required in the courtroom. PART 2: OVERVIEW OF THE FEDERAL MAGISTRATE'S COURT 31

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