Federal Magistrates Amendment Regulations 2004 (No. 1) 2004 No. 292
EXPLANATORY STATEMENT
STATUTORY RULES 2004 NO. 292
Issued by the authority of the Attorney-General
Federal Magistrates Act 1999
Federal Magistrates Amendment Regulations 2004 (No. 1)
The Federal Magistrates Act 1999 (the Act) establishes the Federal Magistrates Court as a court of record and a court of law and equity.
Section 120 of the Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act, and in particular, prescribing the fees to be paid in respect of proceedings in the Court or the services and execution of the process of the Court by officers of the Court.
Pursuant to section 120 of the Act, the Governor-General made the Federal Magistrates Regulations 2000 ('the Principal Regulations'), prescribing certain fees in relation to Court proceedings and making provision in relation to payment of those fees.
The Federal Magistrates Amendment Regulations 2004 ('the Amendment Regulations') amend the Principal Regulations by prescribing specific fees for filing an application for an order for substituted service of a bankruptcy notice.
Under the Principal Regulations there are no specific fees for filing an application for an order for substituted service of a bankruptcy notice. In at least some cases the fees being charged for this service are the fees prescribed for filing a document by which a proceeding in the Federal Magistrates Court seeking final orders is commenced - $576 for a corporation and $288 for a non-corporation.
Similarly, in the Federal Court of Australia, the fee currently charged for filing an application for an order for substituted service of a bankruptcy notice is the fee for filing an application commencing proceedings. Certain provisions of the Federal Court of Australia Regulations 2004 introduce specific new fees for filing an application for an order for substituted service of a bankruptcy notice. These fees are $298 for a corporation and $149 for a non-corporation. The reduction in the fees in the Federal Court is to be accompanied by a proportionate reduction in the fees in the Federal Magistrates Court in order to reduce the likelihood of bankruptcy work moving from the Federal Magistrates Court to the Federal Court,
Regulation 1 - Name of Regulations
Regulation 1 provides for the Amendment Regulations to be named the Federal Magistrates Amendment Regulations 2004 (No. 1).
Regulation 2 - Commencement
Regulation 2 provides for the Amendment Regulations to commence on 1 November 2004. This is the same commencement date as for the Federal Court of Australia Regulations 2004, which provide for the new fees for filing an application for an order for substituted service of a bankruptcy notice in the Federal Court.
Regulation 3 - Amendment of Federal Magistrates Regulations 2000
Regulation 3 provides for schedule 1 to amend the Principal Regulations.
Schedule 1 - Amendment
Item 1 - Schedule 1, after item 10 and before the note
Item 1 of schedule 1 provides for the new fees for filing an application for an order for substituted service of a bankruptcy notice to be inserted between item 10 of schedule 1 of the Principal Regulations and the note at the bottom of schedule 1 of the Principal Regulations. The fee is $150 for a corporation and $75 for a non-corporation.
Inserting this fee into the Principal Regulations will retain the approximate ratio between the fees of the Federal Court and the Federal Magistrates Court for this service.
The Act does not specify any conditions that need to be met before the power to make the Regulations may be exercised.
Statutory Rule Draft No:
Overview
The Federal Magistrates Amendment Regulations 2004 (No. 1) were enacted to address a gap in the Federal Magistrates Regulations 2000 by prescribing specific fees for filing an application for an order for substituted service of a bankruptcy notice. The Federal Magistrates Act 1999 established the Federal Magistrates Court and provided the Governor-General with the authority to make regulations necessary for carrying out the Act, including the setting of fees. However, the existing regulations did not include specific fees for this particular service, leading to inconsistencies with the fees charged in the Federal Court of Australia. The regulations aim to ensure a proportionate fee structure between the Federal Magistrates Court and the Federal Court, thereby preventing the migration of bankruptcy-related work from the former to the latter. These amendments were made under the authority of the Attorney-General and commenced on 1 November 2004, the same date as the new fees in the Federal Court of Australia Regulations 2004.
Scope and Application
The Federal Magistrates Amendment Regulations 2004 (No. 1) pertain to the Federal Magistrates Act 1999, which establishes the Federal Magistrates Court as a court of record and a court of law and equity. The Act applies to the Federal Magistrates Court and its proceedings, with the Regulations serving to modify the existing Federal Magistrates Regulations 2000 by introducing specific fees for filing an application for an order for substituted service of a bankruptcy notice. These Regulations are applicable nationwide, given the federal jurisdiction of the Federal Magistrates Court. The new fees set forth in the Amendment Regulations are $150 for corporations and $75 for non-corporations, which aligns with the fee structure introduced in the Federal Court of Australia Regulations 2004. The Regulations came into effect on 1 November 2004, concurrent with the Federal Court of Australia Regulations 2004, ensuring uniformity in the fee structures across both courts. There are no exclusions or exemptions specified in these Regulations.
Key Provisions
The main operative sections of the Federal Magistrates Amendment Regulations 2004 (No. 1) are Regulation 1, which names the regulations as the Federal Magistrates Amendment Regulations 2004 (No. 1); Regulation 2, which sets the commencement date of 1 November 2004; and Regulation 3, which directs the amendment of the Federal Magistrates Regulations 2000. Schedule 1 of these regulations inserts new fees for filing an application for an order for substituted service of a bankruptcy notice, with the fee set at $150 for corporations and $75 for non-corporations (Item 1). These amendments are aimed at aligning the fees in the Federal Magistrates Court with those in the Federal Court of Australia to prevent a shift in bankruptcy proceedings between the two courts.
The obligations imposed by the Amendment Regulations primarily concern the fees charged for filing an application for an order for substituted service of a bankruptcy notice. Specifically, the regulations require that a fee of $150 be paid by corporations and $75 by non-corporations for this service, effective from 1 November 2004. This change is intended to standardise the fees across both courts, thereby maintaining a balance in the distribution of bankruptcy proceedings.
The Amendment Regulations do not explicitly outline offences, penalties, or civil/criminal consequences for breach. However, non-compliance with the prescribed fees could potentially lead to administrative penalties under the Federal Magistrates Act 1999. For instance, if a party fails to pay the stipulated fee for filing an application for an order for substituted service of a bankruptcy notice, the court may refuse to process the application. Additionally, under the Federal Magistrates Act, any administrative errors or omissions in following the regulations could be subject to review or correction by the relevant authorities, though specific penalties for such breaches are not detailed within these regulations.