Federal Magistrates Amendment Regulations 2009 (No. 1)

Administered by Attorney-General's Department

Legislation au F2009L02475 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 129

 

Issued by the Authority of the Attorney-General

 

Federal Magistrates Act 1999

Federal Magistrates Amendment Regulations 2009 (No. 1)

 

Federal Court of Australia Act 1976

Federal Court of Australia Amendment Regulations 2009 (No. 1)

 

The Federal Magistrates Act 1999 (the Federal Magistrates Act) and the Federal Court of Australia Act 1976 (the Federal Court Act) establish the Federal Magistrates Court (the FMC) and the Federal Court of Australia (the Federal Court) respectively as federal courts under Chapter III of the Constitution.

Subsection 120(1) of the Federal Magistrates Act and subsection 60(1) of the Federal Court Act provide that the Governor‑General may make regulations prescribing matters required or permitted by those Acts to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to those Acts.  In particular, subsection 120(3) of the Federal Magistrates Act and subsection 60(1) of the Federal Court Act provide for the prescribing of fees to be paid in respect of proceedings in the FMC and Federal Court respectively.

A reduced court fee structure previously applied to unlawful termination court applications under the Workplace Relations Act 1996 (the WR Act) and was prescribed under the Federal Court of Australia Regulations 2004 and the Federal Magistrates Regulations 2000.  The current fee for an application and claim for unlawful termination is $57.30.  This fee is adjusted annually in accordance with an indexation factor based on the CPI.

The purpose of the Regulations is to specify which court applications to the FMC and the Federal Court under the new Fair Work Act 2009 (the FW Act) framework will attract a reduced court application fee, which from 1 July 2009 will be $59.50.  This fee has been prescribed by the Fair Work Regulations 2009.

Under the new FW Act framework, the WR Act protections relating to unlawful termination and freedom of association for national system employers and employees, have been consolidated and streamlined into the General protections in Part 3-1 of the FW Act. In addition, special provision is now made for unlawful termination protection for non-national system employees in section 772 of the FW Act.

To take account of the new FW Act framework, the Regulations will provide for the following court applications to be subject to a reduced fee:

  • all applications to the Federal Court or the FMC under section 539 of the FW Act where a person has been dismissed from employment in alleged contravention of Part 3-1 of the FW Act which contains the General protections;
  • all applications to the Federal Court or FMC under section 539 of the FW Act where the person is alleging a breach of section 351 of the FW Act (i.e. adverse action for a discriminatory reason);
  • all applications to the Federal Court or FMC under section 539 of the FW Act where a person has been dismissed from employment in alleged contravention of section 772 (i.e. unlawful termination protection for non-national system employees).

Details of the Regulations are set out in the Attachment.

The Acts specify no conditions that need to be satisfied before the power to make the Regulations may be exercised.

The Regulations are legislative instruments for the purposes of the Legislative Instruments Act 2003.

The Regulations commence on 1 July 2009, to coincide with the commencement of Part 3‑1 and Division 2 of Part 6‑4 of the FW Act.

Consultations regarding these legislative instruments were held with the Federal Court.  This level of consultation is appropriate and sufficient, as these amendments are of a minor or machinery nature only and do not substantially alter existing arrangements.

 

 

Authority:  Subsection 60(1) of the

 Federal Court of Australia Act 1976

Subsection 120(1) of the

Federal Magistrates Act 1999


ATTACHMENT

 

Details of the Federal Court of Australia Amendment Regulations 2009 (No. 1)

 

Regulation 1 – Name of Regulations

This regulation provides that the title of the Regulations is the Federal Court of Australia Amendment Regulations 2009 (No. 1)

Regulation 2 – Commencement

This regulation provides for the Regulations to commence on 1 July 2009.

Regulation 3 – Amendment of Federal Court of Australia Regulations 2004

This regulation provides that the Federal Court of Australia Regulations 2004 (the Federal Court Regulations) are amended as set out in Schedule 1.

Schedule 1 – Amendment

Item [1] – Schedule 1, item 3

Item 3 in Schedule 1 to the Federal Court Regulations will be substituted with a new item 3.  The new item sets out which applications to the Federal Court will be subject to the reduced application fee prescribed for subsection 395(2) of the FW Act.  All applications to the Federal Court under section 539 of the FW Act, where an applicant has been dismissed from employment in an alleged contravention of Part 3-1 of the Act, or the applicant alleges a breach of section 351 of the Act, will be subject to the reduced fee prescribed.

A new item 3A will also be inserted after item 3 in Schedule 1.  This new item specifies that applications to the Federal Court under section 539 of the FW Act, where a person has been dismissed from employment in alleged contravention of section 772 of the FW Act, will also be subject to the reduced application fee prescribed for subsection 395(2) of the FW Act.


Details of the Federal Magistrates Amendment Regulations 2009 (No. 1)

 

Regulation 1 – Name of Regulations

This regulation provides that the title of the Regulations is the Federal Magistrates Amendment Regulations 2009 (No. 1).

Regulation 2 – Commencement

This regulation provides for the Regulations to commence on 1 July 2009.

Regulation 3 – Amendment of Federal Magistrates Regulations 2000

This regulation provides that the Federal Magistrates Regulations 2000 (the Federal Magistrates Regulations) are amended as set out in Schedule 1.

Schedule 1 – Amendment

Item [1] – Schedule 1, item 12

Item 12 in Schedule 1 to the Federal Magistrates Regulations will be substituted with a new item 12.  The new item sets out which applications to the FMC will be subject to the reduced application fee prescribed for subsection 395(2) of the FW Act.  All applications to the FMC under section 539 of the FW Act, where an applicant has been dismissed from employment in an alleged contravention of Part 3‑1 of the Act, or the applicant alleges a breach of section 351 of the FW Act, will be subject to the reduced fee prescribed.

A new item 13 will also be inserted after item 12 in Schedule 1.  This new item specifies that applications to the FMC under section 539 of the Act, where a person has been dismissed from employment in alleged contravention of section 772 of the FW Act, will also be subject to the reduced application fee prescribed for subsection 395(2) of the FW Act.

 

Overview

The Federal Magistrates Amendment Regulations 2009 (No. 1) and the Federal Court of Australia Amendment Regulations 2009 (No. 1), both issued under the authority of the Attorney-General, were enacted to align the court fee structure with the introduction of the Fair Work Act 2009. These regulations address the need to adjust the fees for certain court applications related to employment matters, ensuring they reflect the new legislative framework provided by the Fair Work Act. The regulations were made under the authority granted by subsection 120(1) of the Federal Magistrates Act 1999 and subsection 60(1) of the Federal Court of Australia Act 1976, which allow for the prescription of fees for proceedings in these courts. The policy objective of these regulations is to streamline the fee structure for specific applications under the Fair Work Act, thereby facilitating easier access to justice for individuals seeking to resolve employment disputes related to unlawful termination, adverse action, and general protections.

Scope and Application

The Federal Magistrates Amendment Regulations 2009 (No. 1) and the Federal Court of Australia Amendment Regulations 2009 (No. 1) serve to amend the Federal Magistrates Regulations 2000 and the Federal Court of Australia Regulations 2004 respectively, establishing a reduced court fee structure for certain applications to the Federal Magistrates Court and the Federal Court of Australia under the Fair Work Act 2009 framework. These Regulations apply to any person or entity lodging an application under the Fair Work Act 2009, specifically targeting cases of alleged unlawful termination of employment, discrimination in employment, and breaches of the Fair Work Act's general protections. The scope of these Regulations is national, applying across Australia under the authority of the Commonwealth. Notably, the Regulations exclude applications that do not pertain to the specified grounds of dismissal or breaches as outlined in sections 539, 351, and 772 of the Fair Work Act 2009. The reduced fee, set at $59.50 from 1 July 2009, is intended to ease the financial burden on applicants seeking redress under the new legislative framework. These Regulations were made under the authority granted by the Federal Magistrates Act 1999 and the Federal Court of Australia Act 1976, and they came into effect on 1 July 2009 to align with the commencement of certain provisions of the Fair Work Act 2009.

Key Provisions

The Federal Magistrates Amendment Regulations 2009 (No. 1) and the Federal Court of Australia Amendment Regulations 2009 (No. 1) detail the reduced court fees for specific types of employment-related applications to the Federal Magistrates Court (FMC) and the Federal Court of Australia under the new Fair Work Act 2009 (FW Act) framework. Section 539 of the FW Act pertains to applications for unlawful termination, and the regulations (regulations 3 and 3A for the Federal Court and items 3 and 13 for the Federal Magistrates Regulations) specify that applications falling under this section will attract a reduced fee. This includes applications where a person alleges dismissal in contravention of Part 3-1 of the FW Act (General protections) or section 351 of the FW Act (adverse action for a discriminatory reason). Furthermore, section 772 of the FW Act provides protection for non-national system employees from unlawful termination, and the regulations now also include these applications under the reduced fee structure. The obligations imposed by these regulations require that the FMC and Federal Court apply the reduced court fee of $59.50, as prescribed in the Fair Work Regulations 2009, to the specified types of applications. This involves ensuring that the appropriate fee is charged to applicants who meet the criteria outlined in the regulations. Both courts must have systems in place to accurately identify eligible applications and apply the correct fee accordingly. Any breaches of these regulations could potentially lead to civil or administrative consequences. Although the explanatory statement does not explicitly detail penalties, it is reasonable to infer that failure to correctly apply the reduced fee could result in applicants being overcharged or undercharged for their applications. In such cases, the courts might be required to refund overcharged fees or correct the amount owed, and there could be administrative consequences for the courts in terms of ensuring compliance with the regulations. However, the regulations themselves do not specify penalties or sanctions for non-compliance, leaving such consequences to be determined by the courts or relevant authorities.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.