EXPLANATORY STATEMENT
1983 No.339
Federal Court of Australia Act 1976
Federal Court of Australia Regulations (Amendment)
Immediately prior to these amending Regulations paragraph 2(4)(a) of the Federal Court of Australia Regulations provided that a person shall be exempted from the requirement to pay the fees prescribed by the Regulations where the Registrar of the Court or a District Registrar has issued a certificate to the person certifying that the person has been granted legal aid from a legal aid scheme or service approved by the Attorney-General. The paragraph did not allow the payment of fees to be waived where a person was receiving legal assistance under statutory provisions which do not provide for a legal aid scheme. For example the paragraph did not allow the waiver of fees when a person was receiving assistance under section 69 of the Administrative Appeals Tribunal Act 1975, section 72 of the Australian Security Intelligence Organization Act 1979, section 45 of the Racial Discrimination Act 1975, section 107VZZL of the Repatriation Act 1920 or section 170 of the Trade Practices Act 1974. It was considered that this anomaly should be rectified.
Immediately prior to these amending Regulations paragraph 2(4)(b) of the Federal Court of Australia Regulations provided that a person shall be exempted from the requirement to pay the fees prescribed by the Regulations
where the Registrar or a District Registrar has issued a certificate to the person certifying that payment of the fee would impose “substantial hardship” on the person. The usual criteria for the grant of legal or financial assistance is “hardship” rather than “substantial hardship” and it was accordingly proposed that the test for the waiver of Federal Court fees under paragraph 2(4) (b) should be changed to “hardship”.
The regulations provide as follows:
Regulation 1 amends existing sub-regulation 2(4) in two respects. First, it exempts a person from the requirement to pay Court fees where that person has been granted legal or financial assistance under a law of the Commonwealth or of a Territory other than the Northern Territory (the Commonwealth no longer has financial responsibility for the courts of the Northern Territory). Secondly, it changes the test of “substantial hardship” in paragraph 2(4)(b) to one of “hardship”.
Regulation 2 provides that regulation 1 applies to and in relation to proceedings commenced in the Court on or after the date on which the amending Regulations come into operation.
(Authorised by the Attorney-General)