Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)Schedule 3 - Repeal of the Federal Circuit Court of Australia Act 1999
Part 1 - Repeal
Federal Circuit Court of Australia Act 1999
Item 1 - The whole of the Act
1424. Item 1 repeals the whole of the Federal Circuit Court Act.
Part 2 - Saving and transitional provisions
Item 2 - Definitions
1425. Item 2 provides a definition of 'commencement day' for the purposes of the Part. In the Part 'commencement day' means the day that the Schedule commences. Part 2 will commence at the same time as Schedule 3 commences, being the same date as the Federal Circuit and Family Court of Australia Act 2019.
Item 3 - Instrument about Commonwealth tenancy disputes
1426. Item 3 provides that despite the repeal of the Federal Circuit Court Act, an instrument made under section 10AA of that Act and in force immediately before the commencement day continues in force as if it had been made under clause 133 of the FCFC Bill. On and after the commencement day, the instrument is to be known as the Federal Circuit and Family Court of Australia (Division 2) (Commonwealth Tenancy Disputes) Instrument 2015. Furthermore, the instrument applies as if the reference to section 10AA of the Federal Circuit Court Act were a reference to clause 133 of the FCFC Bill, the reference to the Federal Circuit Court Act were a reference to the FCFC Bil l, and any reference to the Federal Circuit Court of Australia were a reference to the FCFC (Division 2).
1427. This amendment reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and the courts' respective enabling legislation. The saving of an instrument made under section 10AA of the Federal Circuit Court Act is appropriate given the instrument will survive in effect through the operation of clause 133 of FCFC Bill and it would be administratively cumbersome and unnecessary to remake every section 10AA instrument.
Item 4 - Authorisation about handling complaints
1428. Item 4 provides that an instrument made under subsection 12(3AB) of the Federal Circuit Court Act and in force immediately before the commencement day continues as if it had been made under subclause 145(2) of the FCFC Bill
1429. Under subclause 145(2) of the FCFC Bill, the Chief Judge may authorise, in writing, a person or body to assist the Chief Judge to handle complaints, to decide whether or not to handle complaints, to dismiss complaints, or to handle complaints.
1430. This amendment reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and the courts' respective enabling legislation. The saving of an authorisation made under subsection 12(3AB) of the Federal Circuit Court Act is appropriate given the instrument will survive in effect though subclause 145(2) of the FCFC Bill and it would be administratively cumbersome and unnecessary to remake every subsection 12(3AB) authorisation.
Item 5 - Seals and stamps
1431. Item 5 provides that a seal or stamp of the Federal Circuit Court in force immediately before the commencement day, may be affixed to documents (in accordance with subclauses 178(3) or 179(3) of the FCFC Bill respectively) on or after the commencement day for a period of twelve months after the commencement day, as if it were a seal or stamp of the FCFC (Division 2), despite the repeal of the Federal Circuit Court Act.
1432. This amendment reflects the continuation of the Federal Circuit Court in the FCFC (Division 2).
Item 6 - Oaths and affirmations
1433. Item 6 provides that a written authorisation made under subsection 58(2) of the Federal Circuit Court Act and in force immediately before the commencement day continues as if it had been made under subclause 194(2) of the FCFC Bill.
1434. Subclause 194(2) provides that a Judge may cause the administration of oaths and affirmations and for this purpose the FCFC (Division 2) may either orally or in writing authorise any person (whether they are in or outside Australia) to administer oaths and affirmations.
1435. This amendment reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and the courts' respective enabling legislation. The saving of an authorisation made under subsection 58(2) of the Federal Circuit Court Act is appropriate given the instrument will survive in effect though subclause 194(2) of the FCFC Bill and it would be administratively cumbersome and unnecessary to remake every subsection 58(2) authorisation.
Item 7 - Arrangements with other courts
1436. Item 7 provides that an arrangement made under subsection 90(1) of the Federal Circuit Court Act and in force immediately before the commencement day continues as if it had been made under subclause 246(1) of the FCFC Bill.
1437. Subclause 246(1) enables the Chief Judge of the FCFC (Division 2) to arrange with the chief judicial officer of a another federal, state or territory court, for an officer or officers of that court to perform a series of functions on the behalf of the FCFC (Division 2).
1438. This amendment reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and the courts' respective enabling legislation. The saving of an arrangement made under subsection 90(1) of the Federal Circuit Court Act is appropriate given the instrument will survive in effect though subclause 246(1) of the FCFC Bill and it would be administratively cumbersome and unnecessary to remake every subsection 90(1) arrangement.
Item 8 - Arrangements with agencies or organisations
1439. Item 8 provides that an arrangement made under subsection 91(1) of the Federal Circuit Court Act and in force immediately before the commencement day continues as if it had been made under subclause 247(1) of the FCFC Bill.
1440. Subclause 247(1) enables the Chief Judge of the FCFC (Division 2) to arrange with the chief executive officer of another organisation, including a government agency, for an employee of that organisation or agency to receive documents or perform non-judicial functions on behalf of the FCFC (Division 2).
1441. This amendment reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and the courts' respective enabling legislation. The saving of an arrangement made under subsection 91(1) of the Federal Circuit Court Act is appropriate given the instrument will survive in effect though subclause 247(1) of FCFC Bill and it would be administratively cumbersome and unnecessary to remake every subsection 91(1) arrangement.
Item 9 - Delegation
1442. Item 9 provides that an instrument made under section 117A of the Federal Circuit Court Act and in force immediately before the commencement day continues as if it had been made under clause 275 of the FCFC Bill.
1443. Clause 275 provides that the Chief Judge of the FCFC (Division 2) may, in writing, delegate any or all of his or her powers under section 211 to the Judges of the FCFC (Division 2).
1444. This amendment reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and the courts' respective enabling legislation. The saving of an instrument made under section 117A of the Federal Circuit Court Act is appropriate given the instrument will survive in effect though clause 275 of the FCFC Bill and it would be administratively cumbersome and unnecessary to remake every section 117A instrument.
Item 10 - Determination of other terms and conditions
1445. Item 10 saves the operation of a determination made by the Governor-General under clause 8 of Schedule 1 of the Federal Circuit Court Act that is in force immediately before the commencement day. Such a determination continues in force and may be dealt with as if it had been made under subclause 119(1) of the FCFC Bill. This item ensures that terms and conditions applying to Judges of the Federal Circuit Court will continue to apply to these Judges as Judges of the Federal Circuit and Family Court (Division 2) despite the repeal of the Federal Circuit Court Act.
Item 11 - Certification of retired disabled Judges
1446. Item 11 clarifies that where a Judge of the Federal Circuit Court has been certified by the Minister as a retired disabled Judge before the commencement of this Act on the commencement day, that certification has effect as if it were a certification under clause 122 of the FCFC Bill. This item ensures that benefits, to which the retired disabled Judge is entitled, continue and are not affected by the title changes.
Item 12 - Right of appeal to the Administrative Appeals Tribunal
1447. Item 12 provides that despite the repeal of the Federal Circuit Court Ac t, and application can be made to the Administrative Appeals Tribunal for review of a refusal, before the commencement day, of the Minister to certify that a Judge is a retired disabled Judge under subclause 9A(2) of Schedule 1 of that Act, or a refusal, before the commencement day, of the Minister to give a direction under paragraph 9D(9)(b) of Schedule 1 of that Act, if the time for making an application for review has not ended on the commencement day. The item also provides that despite the repeal of that Act, an application can be made under the following provisions of Schedule 1 of that Act:
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- Subclause 9D(6)
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- Subclause 9D(7)
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- Paragraph 9E(4)(c), subparagraph 9E(5)(b)(ii), or subclause 9E(9)
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- Subparagraph 9F(1)(b)(ii) or (iii).
1448. This item is appropriate to ensure that a person who is otherwise able to make an application for review under these subclauses, paragraphs and subparagraphs of Schedule 1 of the Federal Circuit Court Act is afforded procedural fairness and not unfairly disadvantaged by the repeal of that Act.