EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 162
Issued by the authority of the
Judges of the Federal Court of Australia
Federal Court (Bankruptcy) Amendment Rules 2009 (No. 2)
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 the 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 Legislative Instruments Act 2003 (other than sections 5, 6, 7, 10, 11 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.
The Judges have agreed to amend the Federal Court (Bankruptcy) Rules 2005 by inserting the words ‘General Division’ in the heading of each form in Schedule 1 to the Rules.
The amendments are consequential upon the amendments made to the Federal Court of Australia Act 1976 by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
The amendments have not been the subject of consultation as they are of a minor nature and do not alter the substance of the Federal Court (Bankruptcy) Rules 2005.
Details of the Rules are in the Attachment.
The Rules commence on 1 July 2009.
ATTACHMENT
Federal Court (Bankruptcy) Amendment Rules 2009 (No. 2)
RULE 1 Name of rules
This rule provides that the Rules are to be cited as the Federal Court (Bankruptcy) Amendment Rules 2009 (No. 2).
RULE 2 Commencement
This rule provides that these Rules commence on 1 July 2009.
RULE 3 Amendment of Federal Court (Bankruptcy) Rules 2005
This rule provides that the Federal Court (Bankruptcy) Rules 2005 (‘the Bankruptcy Rules’) are amended as set out in Schedule 1.
SCHEDULE 1
[1] Schedule 1, Forms 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17
These are the forms prescribed under the Bankruptcy Rules to be used for proceedings under the Bankruptcy Act.
This amendment inserts into the heading of each form the words ‘General Division’. The words are inserted immediately below the line containing the word ‘REGISTRY’.
The amendment is consequential upon the amendments to the Federal Court of Australia Act 1976 by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 which create a General Division and a Fair Work Division in the Court. The amendment reflects the fact that proceedings under the Bankruptcy Act 1966 will be heard and determined in the General Division of the Court.
[2] Schedule 1, Form 3
This is the prescribed form for interim applications under the Bankruptcy Rules.
This amendment inserts into the heading of this form the words ‘General Division’. The words are inserted immediately below the line containing the word ‘REGISTRY’.
The amendment is consequential upon the amendments to the Federal Court of Australia Act 1976 by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 which create a General Division and a Fair Work Division in the Court. The amendment reflects the fact that proceedings under the Bankruptcy Act 1966 will be heard and determined in the General Division of the Court.
Overview
The Federal Court (Bankruptcy) Amendment Rules 2009 (No. 2), issued under the authority of the Judges of the Federal Court of Australia, were enacted to address the need for minor amendments to the Federal Court (Bankruptcy) Rules 2005. These amendments follow the legislative changes introduced by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, which established a General Division and a Fair Work Division within the Federal Court of Australia. The purpose of these rules is to ensure that the Bankruptcy Rules align with the new structural changes, reflecting that proceedings under the Bankruptcy Act 1966 will be heard and determined in the General Division of the Court. The amendments are minor and do not alter the substance of the existing rules, hence they were not subject to consultation. The Federal Court (Bankruptcy) Amendment Rules 2009 (No. 2) commenced on 1 July 2009, implementing the necessary adjustments to the headings of various forms used in bankruptcy proceedings to specify their application to the General Division of the Court.
Scope and Application
The Federal Court (Bankruptcy) Amendment Rules 2009 (No. 2) are an instrumental legislative instrument that amends the existing Federal Court (Bankruptcy) Rules 2005. These amendments are made pursuant to the authority granted under section 59 of the Federal Court of Australia Act 1976, enabling the Judges of the Court to establish rules that govern practice and procedure, as well as other incidental matters necessary for the efficient conduct of Court business. These amendments are specifically designed to align the Bankruptcy Rules with the structural changes introduced by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, which created a General Division and a Fair Work Division within the Federal Court of Australia. As a result, these rules now reflect the reality that proceedings under the Bankruptcy Act 1966 will be heard and determined within the General Division of the Court. The amendment involves the insertion of the words ‘General Division’ into the headings of specified forms used in bankruptcy proceedings, ensuring clarity and consistency with the Court's new structure. The amendments are minor in nature and do not alter the substantive content of the existing rules, which is why they have not been subject to consultation. These rules come into effect on 1 July 2009, providing a clear and updated framework for bankruptcy proceedings within the Federal Court of Australia.
Key Provisions
The Federal Court (Bankruptcy) Amendment Rules 2009 (No. 2) primarily focus on amending the Federal Court (Bankruptcy) Rules 2005 to reflect the structural changes in the Federal Court of Australia Act 1976 brought about by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. According to Rule 3, the key amendment involves inserting the words "General Division" into the heading of each form in Schedule 1 of the Bankruptcy Rules (Rule 3). This amendment ensures that the headings of the forms align with the newly created General Division in the Federal Court, as stipulated in the Fair Work Act. The new headings are to be inserted immediately below the line containing the word "REGISTRY" (Schedule 1, Forms 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17; Schedule 1, Form 3).
The obligations imposed by these Rules are primarily administrative and ensure that all forms used in bankruptcy proceedings are updated to reflect the new court structure. The Judges of the Federal Court, through the Rules, ensure that the headings of the prescribed forms accurately indicate the division of the Court where the proceedings will take place. This is a minor but necessary adjustment to maintain consistency and clarity in the legal documentation and proceedings related to bankruptcy under the Bankruptcy Act 1966.
Breaching the requirements set out in these Rules could lead to procedural inefficiencies or misunderstandings regarding the jurisdiction of the Court handling bankruptcy matters. Although the Explanatory Statement does not specify any particular offences, penalties, or consequences for non-compliance, it is implicit that adherence to these Rules is essential for the proper administration of justice. The Federal Court would likely take a serious view of any non-compliance that results in confusion or misdirection in court proceedings, potentially leading to delays or other administrative issues. Given the nature of these amendments, any significant non-compliance might be subject to review or correction by the Court to ensure the integrity of the legal process.