Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)Schedule 4 - Contingent amendments
Part 1 - Aged Care Legislation Amendment (New Commissioner Functions) Act 2019
Aged Care Act 1997
Item 1 - Subparagraphs 92-1(4)(e)(ii) and 92-3(2)(e)(ii)
1449. Item 1 repeals subparagraphs 92-1(4)(e)(ii) and 92-3(2)(e)(ii) of the Aged Care Act 1997 (as amended by the Aged Care Legislation Amendment (New Commissioner Functions) Act 2019) to update the reference to '(ii) the Federal Circuit Court' to refer to '(ii) the Federal Circuit and Family Court of Australia (Division 2)'.
1450. The aforementioned subparagraphs currently provide that the Federal Circuit Court is a relevant court for the purposes of Parts 2 and 3 of the Regulatory Powers (Standard Provisions) Act 2014. The amendments in item 1 reflect the continuation of the Federal Circuit Court as the Federal Circuit and Family Court of Australia (Division 2). They are consequential amendments and do not affect the substantive operation of the paragraphs.
1451. This item will commence at the later of the commencement of the Federal Circuit and Family Court of Australia Act 2019 and immediately after the commencement of Schedule 2 to the Aged Care Legislation Amendment (New Commissioner Functions) Act 2019. However, this item will not commence at all if Schedule 2 to the Aged Care Legislation Amendment (New Commissioner Functions) Act 2019 does not commence.
Aged Care Quality and Safety Commission Act 2018
Item 2 - Subparagraphs 74B(4)(e)(ii) and 74D(2)(e)(ii)
1452. This item repeals subparagraphs 74B(4)(e)(ii) and 74D(2)(e)(ii) of the Aged Care Quality and Safety Commission Act 2018 (as amended by the Aged Care Legislation Amendment (New Commissioner Functions) Act 2019) to update the reference to '(ii) the Federal Circuit Court' to refer to '(ii) the Federal Circuit and Family Court of Australia (Division 2)'.
1453. The aforementioned subparagraphs currently provide that the Federal Circuit Court is a relevant court for the purposes of Parts 2 and 3 of the Regulatory Powers (Standard Provisions) Act 2014. The amendments in item 2 reflect the continuation of the Federal Circuit Court as the Federal Circuit and Family Court of Australia (Division 2). They are consequential amendments and do not affect the substantive operation of the paragraphs.
1454. This item will commence at the later of the commencement of the Federal Circuit and Family Court of Australia Act 2019 and immediately after the commencement of Schedule 2 to the Aged Care Legislation Amendment (New Commissioner Functions) Act 2019. However, this item will not commence at all if Schedule 2 to the Aged Care Legislation Amendment (New Commissioner Functions) Act 2019 does not commence.
Part 2 - Communications Legislation Amendment (Deregulation and Other Measures) Act 2019
Communications Legislation Amendment (Deregulation and Other Measures) Act 2019
Item 3 - Subparagraph 4(8)(b)(ii) of Schedule 2
1455. Item 3 repeals subparagraph 4(8)(b)(ii) of Schedule 2 of the Communications Legislation Amendment (Deregulation and Other Measures) Act 2019 to update the reference to '(ii) the Federal Circuit Court' to refer to '(ii) the Federal Circuit and Family Court of Australia (Division 2)'.
1456. Subparagraph 4(8)(b)(ii) of Schedule 2 of the Communications Legislation Amendment (Deregulation and Other Measures) Act 2019 provides that an amount payable to the Commonwealth under item 4 of Schedule 2 may be recovered by the Secretary, on behalf of the Commonwealth, in the Federal Circuit Court.
1457. The amendment in this item reflects the continuation of the Federal Circuit Court as the Federal Circuit and Family Court of Australia (Division 2). This is a consequential amendment and does not affect the substantive operation of the paragraph.
1458. This item will commence at the later of the commencement of the Federal Circuit and Family Court of Australia Act 2019 and immediately after the commencement of the Communications Legislation Amendment (Deregulation and Other Measures) Act 2019. However, this item will not commence at all if the Communications Legislation Amendment (Deregulation and Other Measures) Act 2019 does not commence.
Part 3 - Fair Work Laws Amendment (Proper Use of Worker Benefits) Act 2019
Fair Work Act 2009
Item 4 - Subsection 539(2) (table item 11A, column 3, paragraph (b))
1459. Item 4 repeals subsection 539(2), table item 11A, column 3, paragraph (b) of the Fair Work Act 2009 (as amended by the Fair Work Laws Amendment (Proper Use of Worker Benefits) Act 2019), to update the reference to '(b) the Federal Circuit Court' to refer to '(b) the Federal Circuit and Family Court of Australia (Division 2)'.
1460. Table item 11A in subsection 539(2) is a new provision inserted by Fair Work Laws Amendment (Proper Use of Worker Benefits) Act 2019, to include a reference to new section 355A of the Fair Work Act 2009 (also inserted by that Amendment Act). The effect of this amendment is to make new section 355A a civil remedy provision with a maximum penalty of 60 penalty units, applicable to the Federal Court and the Federal Circuit Court.
1461. The amendment in item 4 reflects the continuation of the Federal Circuit Court as the Federal Circuit and Family Court of Australia (Division 2). This is a consequential amendment and does not affect the substantive operation of the paragraph.
1462. This item will commence at the later of the commencement of the Federal Circuit and Family Court of Australia Act 2019 and immediately after the commencement of item 3 of Schedule 4 to the Fair Work Laws Amendment (Proper Use of Worker Benefits) Act 2019. However, this item will not commence at all if the Fair Work Laws Amendment (Proper Use of Worker Benefits) Act 2019 does not commence.
Part 4 - Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2019
1463. This Part will commence at the later of the commencement of the Federal Circuit and Family Court of Australia Act 2019 or immediately after the commencement of the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2019. However, this Part will not commence at all if the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2019 does not commence.
Bankruptcy Act 1966
Item 5 - Subsections 35B(1), (2) and (3)
1464. This item amends the above-mentioned subsections in the Bankruptcy Act 1966 (as amended by the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2019) to update references to the Family Court of Australia to the FCFC (Division 1).
1465. Section 35B of the Bankruptcy Act 1966 (as amended by the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2019) would set out the Family Court of Western Australia's bankruptcy jurisdiction and confers jurisdiction on this Court where a bankrupt is a party to a marriage or a de facto relationship.
1466. The aforementioned subsections of the Bankruptcy Act 1966 (as amended by the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2019), would provide that:
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- Section 27 of the Bankruptcy Act 1966 will apply to the Family Court of Western Australia in the corresponding way to which section 27 applies to the Family Court of Australia (subsection 35B(1))
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- Subsection 35(1) of the Bankruptcy Act (and existing subsection 35(3) (which defines 'property settlement proceedings' and 'spousal maintenance proceedings'), so far as it relates to subsection 35(1)), applies to the Family Court of Western Australia in a corresponding way to which it applies to the Family Court of Australia (subsection 35B(2)), and
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- appeals lie to the Family Court of Australia from a judgment of the Family Court of Western Australia exercising jurisdiction in bankruptcy under existing subsection 35(1) (subsection 35B(3)).
1467. The amendments in this item reflect the continuation of the Family Court as the FCFC (Division 1). They are consequential amendments and do not affect the substantive operation of the subsections.
Item 6 - Subsections 35B(9) and (12)
1468. This item amends the above-mentioned subsections in the Bankruptcy Act 1966 (as amended by the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2019) to update references to the Federal Circuit Court to the FCFC (Division 2).
1469. Section 35B of the Bankruptcy Act 1966 (as amended by the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2019) would set out the Family Court of Western Australia's bankruptcy jurisdiction and confers jurisdiction on this Court where a bankrupt is a party to a marriage or a de facto relationship.
1470. The aforementioned subsections of the Bankruptcy Act 1966 (as amended by the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2019), would provide that:
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- the Federal Circuit Court may, on the application of a party to the proceeding or of its own initiative, transfer a bankruptcy proceeding to the Family Court of Western Australia to be heard concurrently with family law proceedings involving a married or de facto couple (subsection 35B(9)), and
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- an appeal does not lie from a decision of the Federal Court or the Federal Circuit Court to transfer a proceeding under subsections 35B(8) or (9) to the Family Court of Western Australia (subsection 35B(12)).
1471. The amendments in this item reflect the continuation of the Federal Circuit Court as the FCFC (Division 2). They are consequential amendments and do not affect the substantive operation of the subsections.
Family Law Act 1975
Item 7 - Subsection 47A(2)
1472. This item replaces subsection 47A(2) in the Family Law Act to reflect amendments that would be made by the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2019.
1473. Section 47A would be inserted by item 69 of Schedule 1 to this Bill, and would provide that an appeal from a court of summary jurisdiction of a State or Territory, exercising jurisdiction under the Family Law Act, the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 lies to either the FCFC (Division 1) or to the Supreme Court of that State or Territory. Section 47A(2) would provide that new subsection 47A(1) does not apply to a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia. This is required to ensure that decrees of Family Law Magistrates would not be treated in the same way as decrees of other Western Australian magistrates, since the Magistrates Court of Western Australia is a court of summary jurisdiction.
1474. Under item 7, subsection 47A(2) would provide that subsection 47A(1) does not apply to a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia, as well as a decree of the Magistrates Court of Western Australia constituted by a non-Family Law Magistrate of Western Australia made in proceedings in relation to matters arising under Part VIIIC of the Family Law Act.
1475. This item reflects section 39H of the Family Law Act, as would be inserted by the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2019, which would provide that federal jurisdiction is conferred on:
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- the Family Court of Western Australia
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- the Magistrates Court of Western Australia constituted by a magistrate who is not a Family Law Magistrate of Western Australia, sitting at a place outside a metropolitan region (within the meaning of the Family Court Act (WA), and
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- the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia, sitting at any place in Western Australia.
Item 8 - After section 47B
1476. This item inserts new section 47BA into the Family Law Act, which would provide for the appeal pathway that would apply to superannuation splitting proceedings under Part VIIIC of the Family Law Act. Part VIIIC of the Family Law Act, as would be inserted by the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2019, relates to splittable payments of superannuation interest to be allocated between de facto partners in a de facto relationship in Western Australia.
1477. Subsection 47BA(1) provides that an appeal would lie to the Family Court of Western Australia from an interlocutory order of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia or a decree of the Magistrates Court of Western Australia constituted by a magistrate who is not a Family Law Magistrate of Western Australia where the Court is exercising original jurisdiction invested by Division 2A of Part V.
1478. The note under subsection 47BA(1) explains that Division 2A of Part V invests jurisdiction with respect to matters arising under Part VIIIC.
1479. Subsection 47BA(2) would provide that an appeal lies to the Court of Appeal established under the Supreme Court Act 1935 (WA) from:
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- a decree of the Family Court of Western Australia exercising original jurisdiction invested by Division 2A of Part V of the Family Law Act or appellate jurisdiction under the Family Law Act, or
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- a decree (other than an interlocutory order) of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia exercising original jurisdiction invested by Division 2A of Part V of the Family Law Act.
1480. The note under subsection 47BA(2) explains that Division 2A of Part V invests jurisdiction with respect to matters arising under Part VIIIC.
1481. Subsection 47B(3) would invest federal jurisdiction with respect to matters arising under Part VIIIC of the Family Law Act in respect of which appeals are instituted under this section in the Court of Appeal established under the Supreme Court Act 1935 (WA) and Family Court of Western Australia.
Item 9 - Paragraph 90YZH(3)(c)
1482. This item amends the above-mentioned paragraph in the Family Law Act (as would be inserted by the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2019) to update a reference to the Federal Circuit Court to the FCFC (Division 2).
1483. Subsection 90YZH(3) of the Family Law Act (as inserted by the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2019), would provide that the Western Australian Rules of Court may make provision to require notice by a party to a de facto relationship that has broken down who is a party to proceedings for an order under section 90YX or 90YZE, to be given about a party becoming a bankrupt or subject to a personal insolvency agreement, or of the institution of proceedings under the Bankruptcy Act 1966, where before that application is finally determined, the person become a party to a proceeding before the Federal Court of Federal Circuit Court under the Bankruptcy Act 1966 that relates to the bankruptcy of the person or the person's capacity as a debtor subject to a personal insolvency agreement.
1484. The amendment in this item reflects the continuation of the Federal Circuit Court as the FCFC (Division 2). It is a consequential amendment and does not affect the substantive operation of the paragraph.
Item 10 - Subsection 123(1)
1485. This item amends subsection 123(1) in the Family Law Act (as amended by the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2019) to replace "in the Family Court, and, subject to subsection 69GA(3) and section 90YJ, any other courts" with "subject to subsection 69GA(3) and section 90YJ, in a court".
1486. Section 123 of the Family Law Act relates to Rules of Court. Subsection 123(1) of the Family Law Act, (as amended by the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2019), would provide that the rule-making power is subject to subsection 69GA(3) and section 90YJ. Section 90YJ would provide that the power of the Western Australian Judges, or a majority of them, to make Rules of Court, extends to making rules for the purposes of Part VIIIC.
Federal Circuit and Family Court of Australia Act 2019
Item 11 - Subparagraph 26(1)(d)(i)
1487. This item amends subparagraph 26(1)(d)(i) of the Federal Circuit and Family Court of Australia Act 2019, which would provide that the FCFC (Division 1) has jurisdiction to hear and determine a judgement of a Family Court of a State or a Supreme Court of a State or Territory constituted by a single Judge, exercising original or appellate jurisdiction under the Family Law Act. This item amends subparagraph 26(1)(d)(i) to exclude a judgement of the Family Court of Western Australia, which is now provided for by the below items.
Item 12 - After paragraph 26(1)(d)
1488. This item inserts new paragraph 25(1)(da) of the Federal Circuit and Family Court of Australia Act 2019. New Paragraph 25(1)(da) would provide that subject to clause 28, the FCFC (Division 1) would have jurisdiction to hear and determine appeals from a judgment of the Family Court of Western Australia exercising original jurisdiction under the Family Law Act (excluding Part VIIIC), or the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988. Appeals relating to matters arising under Part VIIIC of the Family Law Act would be covered by section 47BA of that Act, as amended by the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2019.
Item 13- Subparagraph 26(1)(f)(i)
1489. This item amends subparagraph 26(1)(f)(i) of the Federal Circuit and Family Court of Australia Act 2019, which would provide that the FCFC (Division 1) has jurisdiction to hear and determine a judgment of the Magistrates Court of Western Australia exercising original jurisdiction under the Family Law Act, to exclude matters arising under Part VIIIC of that Act. Appeals relating to matters arising under Part VIIIC of the Family Law Act would be covered by section 47BA of that Act, as inserted by the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2019.
Item 14 - Subsection 26(1) (before note 1)
1490. This item inserts note 1A after subsection 26(1) of the Federal Circuit and Family Court of Australia Act 2019, which refers the reader to section 47BA of the Family Law Act for appeals relating to matters arising under Part VIIIC of that Act.
Part 5 - Interactive Gambling Amendment (National Self-exclusion Register) Act 2019
Interactive Gambling Act 2001
Item 15 - Subparagraph 61PC(b)(ii)
1491. This item repeals the above-mentioned subparagraph in the Interactive Gambling Act 2001 (as amended by the Interactive Gambling Amendment (National Self-exclusion Register) Act 2019) and substitutes a subparagraph that refers to the 'Federal Circuit and Family Court of Australia (Division 2)' instead of the 'Federal Circuit Court'. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not affect the substantive operation of the provision.
1492. This item will commence at the later of the commencement of the Federal Circuit and Family Court of Australia Act 2019 or immediately after the commencement of the Interactive Gambling Amendment (National Self-exclusion Register) Act 2019. However, this item will not commence at all if the Interactive Gambling Amendment (National Self-exclusion Register) Act 2019 does not commence.
Part 6 - National Sports Tribunal Act 2019
National Sports Tribunal Act 2019
Item 16 - Paragraph 48(5)(b)
1493. This item repeals paragraph 48(5)(b) of the National Sports Tribunal Act 2019 and substitutes 'the Federal Circuit and Family Court of Australia (Division 2)'. Paragraph 48(5)(b) provides that for the purposes of Part 4 of the Regulatory Powers (Standard Provisions) Act 2014, the Federal Circuit Court is a relevant court in relation to the civil penalty provisions of the Act. The amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not substantively alter the operation of the paragraph.
1494. This item will commence at the later of the commencement of the Federal Circuit and Family Court of Australia Act 2019 and immediately after the commencement of the National Sports Tribunal Act 2019. However, this item will not commence at all if the National Sports Tribunal Act 2019 does not commence.
Part 7 - Offshore Petroleum and Greenhouse Gas Storage Amendment (Miscellaneous Amendments) Act 2019
Offshore Petroleum and Greenhouse Gas Storage Act 2006
Items 17 and 18 - subparagraphs 582A(2)(b)(ii), 596A(6)(b)(ii), 596A(7)(g)(ii)
1495. These items amend subparagraphs 582A(2)(b)(ii), 596A(6)(b)(ii) and 596A(7)(g)(ii) of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (as amended by the Offshore Petroleum and Greenhouse Gas Storage Amendment (Miscellaneous Amendments) Act 2019). Specifically, these items repeal the above-mentioned subparagraphs and substitute subparagraphs that refer to the 'Federal Circuit and Family Court of Australia (Division 2)' instead of the 'Federal Circuit Court'. These subparagraphs set out forums in which various debts due to the Commonwealth can be recoverable. These amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not affect the substantive operation of the provisions.
1496. These items will commence on the later of either the same day as the commencement of the Federal Circuit and Family Court of Australia Act 2019 or immediately after the commencement of Division 1 of Part 1 of Schedule 1 of the Offshore Petroleum and Greenhouse Gas Storage Amendment (Miscellaneous Amendments) Act 2019. However, these items will not commence at all if the Offshore Petroleum and Greenhouse Gas Storage Amendment (Miscellaneous Amendments) Act 2019 does not commence.
Part 8 - Student Identifiers Amendment (Enhanced Student Permissions) Act 2019
Student Identifiers Act 2014
Item 19 - Paragraph 29D(3)(b)
1497. This item repeals the above-mentioned paragraph in the Student Identifiers Act 2014 as amended by the Student Identifiers Amendment (Enhanced Students Permissions) Act 2019 and substitutes a paragraph that refers to the 'Federal Circuit and Family Court of Australia (Division 2)' instead of the 'Federal Circuit Court'. This amendment appropriately reflects the continuation of the Federal Circuit Court as the FCFC (Division 2) and does not affect the substantive operation of the provision.
1498. This item will commence at the later of the commencement of the Federal Circuit and Family Court of Australia Act 2019 or immediately after the commencement of the Student Identifiers Amendment (Enhanced Students Permissions) Act 2019. However, this item will not commence at all if the Student Identifiers Amendment (Enhanced Students Permissions) Act 2019 does not commence.
Part 9 - Telecommunications Legislation Amendment (Competition and Consumer) Act 2019
Telecommunications Act 1997
Item 20 - Section 7 (definition of Federal Circuit Court)
1499. This item repeals the definition of 'Federal Circuit Court' in section 7 of the Telecommunications Act 1997 (as amended by Schedule 4 to the Telecommunications Legislation Amendment (Competition and Consumer Act) 2019). Section 7 provides definitions for terms contained within the Act. The definition of Federal Circuit Court is no longer required as the Federal Circuit Court will be continued as Federal Circuit and Family Court of Australia (Division 2). Where reference is made to the Federal Circuit and Family Court of Australia (Division 2) in the Act, the reference is provided in full.
1500. This item will commence at the later of the commencement of the Federal Circuit and Family Court of Australia Act 2019 and immediately after the commencement of Schedule 4 of the Telecommunications Legislation Amendment (Competition and Consumer Act) 2019. However, this item will not commence at all if Schedule 4 to the Telecommunications Legislation Amendment (Competition and Consumer Act) 2019 does not commence.
Telecommunications (Consumer Protection and Service Standards) Act 1999
Item 21 - Subparagraphs 102E(b)(ii) and 102N(5)(b)(ii)
1501. This item repeals the above-mentioned subparagraphs in the Telecommunications (Consumer Protection and Service Standards) Act 1999 (as amended by Schedule 4 to the Telecommunications Legislation Amendment (Competition and Consumer Act) 2019) and substitute subparagraphs that refer to the 'Federal Circuit and Family Court of Australia (Division 2)' instead of the 'Federal Circuit Court'. These subparagraphs of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (as amended by the Telecommunications Legislation Amendment (Competition and Consumer Act) 2019) set out forums in which various debts due to the Commonwealth can be recoverable. These amendments appropriately reflect the continuation of the Federal Circuit Court as the FCFC (Division 2) and do not affect the substantive operation of the provisions.
1502. This item will commence at the later of the commencement of the Federal Circuit and Family Court of Australia Act 2019 and immediately after the commencement of Schedule 4 to the Telecommunications Legislation Amendment (Competition and Consumer Act) 2019. However, this item will not commence at all if Schedule 4 of the Telecommunications Legislation Amendment (Competition and Consumer Act) 2019 does not commence.