Explanatory Statement
Statutory Rules 1990 No. 319
Issued by the authority of the Judges of the Federal Court of Australia
AMENDMENT OF THE RULES OF THE FEDERAL COURT OF AUSTRALIA
Section 59 of the Federal Court of Australia Act 1976 permits the Judges of the Court (of whom there are thirty-two (32) including the Chief Justice) or a majority of them to make Rules of Court not inconsistent with the Act, making provision for or in relation to the practice and procedure to be followed in the Court, including practice and procedure to be followed in Registries of the Court, and for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Court Section 59 of the Act also provides that sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to these Rules of Court made under that section as if references in those sections of that Act to regulations were references to Rules of Court.
The present Federal Court Rules came into operation on 1 August 1979. They have been reviewed regularly since then.
Rule 1
Provides that the Rules now made come into operation on 15 October 1990.
Rule 2
Amends Order 4 to correct a deficiency in the Rules regarding the giving of notice to a respondent of an altered hearing date. Failure to give notice of the alteration had caused inconvenience to practitioners. This has now been rectified.
Rule 3
Inserts new Order 70
This rule is made pursuant to Clause 28 of Schedule 4 to the Aboriginal and Torres Strait Islander Commission Act 1989 (the Act ) and not section 59 of the Federal Court of Australia Act 1976 (see above). Schedule 4 deals with disputes about electoral matters. The elections are those which result in Aboriginal and Torres Strait Islanders being able to elect Regional Councils and zone representatives. There are 60 regions which are grouped Australia-wide into 17 zones. Clause 28 provides that the Judges of the Court or a majority of them may take Rules of Court not inconsistent with the Act, and the Regional Council and zone election rules, for carrying the Schedule into effect and in particular for regulating the practice and procedure of the Court, the forms to be used and the fees to be paid by parties. Rules for conduct of elections are set out in section 113 of the Act. Clause 28 also provides that sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to Rules of Court made under that clause as if reference in those sections of that Act to regulations were references to Rules of Court.
Section 140 of the Act states that the provisions of Schedule 4 apply where there is a dispute in relation to a Regional Council election or a zone election. Clause 2 of the Schedule grants jurisdiction to the Court to try election petitions relating to disputed elections and clause 17 of the Schedule grants jurisdiction to hear and determine questions as to qualification or vacancy in Regional Councils referred by the Minister, Sections 100 and 131 of the Act provide for Regional Council elections and the election of zone representatives.
Order 70 provides for the practice of the Court where there is a dispute in relation to a Regional Council election or a zone election. Details of the Order are as follows:
Order 70 rule 1
Provides that terms used in this Order are to have the same meaning as they have in Schedule 4 of the Act,
Order 70 rule 2
Provides for the signing and sealing of election petitions lodged with the Court; the provision of copies noting the time and place at which the matter is listed for a directions hearing for the respondent, the Electoral Commission and Minister, directions by the court for the hearing of the matter including joinder of further parties; the deposit of $100 as security for costs (fixed by clause 4 of Schedule 4) and a filing fee of $25 (fixed by the Court), both payable by the petitioner; the filing and serving of a statement of facts relied upon by a respondent and orders by the Court and Judge for further and better particulars of a matter alleged by a party.
Order 70 rule 3
Provides for the signing and sealing of references received by the Court; the provision of copies noting the time and place at which the matter is listed for a directions hearing; advertising of the reference and date of the directions hearing in a newspaper circulated in the region to which the reference relates and a sealed copy of the reference to be sent to the Regional Council to which it relates; directions by the Court for the hearing of the matter including directions permitting any person who in the Courts opinion is interested in the determination of a question to be heard and directions relating to the lodgment of documents in the Minister’s possession.
Order 70 rule 4
Is a general rule which provides for the Court to direct the Registrar to issue subpoenas for production of documents or things or attendance of persons; service of such subpoenas and the payment of attendance money and witness expenses.
Rule 4
Provides for the amendment to the First Schedule to the Federal Court Rules to insert Forms 73 (election petition) and 74 (reference of question as to qualifications or vacancy). These forms are necessary to focus on the matters Schedule 4 requires the Court to adjudicate.