Federal Magistrates Court Amendment Rules 2005 (No. 1)
EXPLANATORY STATEMENT
Select Legislative Instrument 2005 (No. 263)
Issued by the authority of the Federal Magistrates
of the Federal Magistrates Court of Australia
Section 81 of the Federal Magistrates Act 1999 (the Act) provides that the Federal Magistrates, or a majority of them, may make Rules of Court providing for or in relation to the practice and procedure to be followed in the Federal Magistrates Court (the FMC).
Subsection 81(3) of the Act provides that the Legislative Instruments Act 2003 (the LIA) (other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in relation to rules of court made by the Court.
Pursuant to the LIA there has been consultation with other courts, government departments and legal professional representatives in the preparation of the following amendments to the Federal Magistrates Court Rules 2001 (the Rules). There has also been broad consultation with legal aid, immigration rights and public interest advocacy representatives concerning explanatory material to be published by the Court to assist litigants in person.
The amendments to the Rules are as a consequence of the passage of the Migration Litigation Reform Act 2005 and provide for contemporaneous commencement with Schedule 1 to that Act. The effect of this Act is to limit first instance jurisdiction to review migration decisions to the High Court and the FMC. The grounds of review in migration cases in the FMC under the Migration Act 1958 (the Migration Act) will be the same as the High Court under section 75(v) of the Constitution. The amendments to the Rules introduce a new Part 44 for proceedings under the Migration Act. As the grounds of migration review in the FMC are the same as the High Court, the rules of proceedings set out in new Part 44 mirror those which apply to similar proceedings instituted in the High Court.
Rule 1 – Name of Rules
This rule provides that the Rules are the Federal Magistrates Court Amendment Rules 2005 (No.1).
Rule 2 – Commencement
The rule provides for commencement on commencement of Schedule 1 to the Migration Litigation Reform Act 2005.
Rule 3 – Amendment of Federal Magistrates Court Rules 2001
This rule provides that the Federal Magistrates Court Rules 2001 are amended as set out in Schedule 1.
SCHEDULE 1
[1] Subparagraph 13.07(1)(b)(ii)
This amendment is consequential upon new section 17A of the Act inserted by the Migration Litigation Reform Act 2005. This new section provides that the FMC may give summary judgment where there is ‘no reasonable prospect of success’. The amendment to the subparagraph incorporates the terminology found in new section 17A to avoid any inconsistency.
[2] Rule 13.10
A similar amendment has been made to Rule 13.10, which deals with summary dismissal, to incorporate the ‘no reasonable prospect of success’ test set out in new section 17A of the Act.
[3] & [4]
These amendments are required to change references in rules 21.10 and 21.16 to ‘Schedule 1’ to ‘Part 1 of Schedule 1’, as a consequence of the amendment made by amendment item [8] (which introduces a Part 1 heading into Schedule 1).
[5] Before rule 42.01, in Part 42
The amendment inserts a note in Part 42 (which applies to proceedings under the Administrative Decisions (Judicial Review) Act 1977) advising that new Part 44 contains rules relating to jurisdiction under section 476 of the Migration Act.
[6] Before rule 43.01, in Part 43
The amendment inserts a similar note in Part 43 (which applies to appeals from the Administrative Appeals Tribunal) advising that new Part 44 contains rules relating to jurisdiction under section 476 of the Migration Act.
[7] After Part 43
This amendment inserts new Part 44 for proceedings under the Migration Act.
Division 44.1 - Preliminary
New rule 44.01 sets out definitions for the purpose of Part 44.
New rule 44.02 provides for the application of Part 44 to proceedings:
- for a remedy under the Court’s jurisdiction under section 476 of the Migration Act in relation to a migration decision (subrule (1))
- subject to any order of the High Court, to a matter (or part of a matter) remitted by the High Court under section 44 of the Judiciary Act 1903 and in accordance with section 476B of the Migration Act (subrules (2) and (3)).
New rule 44.03 – Makes provision for the application of Chapters 1 and 3 of the Rules so far as they are relevant and not inconsistent with new Part 44.
Division 44.2 – Matters commenced in the Court
New rule 44.04 provides that this Division only applies to a matter commenced in the Court (rather than remitted from the High Court).
New rule 44.05 provides that an application made under this Division must be made in accordance with the form of application prescribed in Part 1 of Schedule 2 for an application under the Migration Act and must be supported by an affidavit.
Subrule (2) paragraphs (a), (b) and (c) set out what must be included in the supporting affidavit, namely:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought – the reasons for any delay and the reasons why an extension should be granted.
New rule 44.06 provides that a respondent who intends to oppose an application for an order to show cause must file and serve a response including each ground on which the respondent opposes the application and details of each ground.
Subrule (2) paragraphs (a), (b), (c) and (d) set out the grounds on which the respondent may oppose the application, namely:
(a) that the Court does not have jurisdiction to hear the application
(b) delay
(c) that there are or have been other judicial review proceedings relating to the decision
(d) that the applicant has not complied with subsection 486D(1) of the Migration Act.
Division 44.3 – Matters remitted by the High Court
New rule 44.07 provides that this Division only applies to a matter (or part of a matter) remitted to the Court by the High Court.
New rule 44.08 provides that a sealed copy of the order of remittal must be filed in the registry named in the order of remittal or, if not specified, as directed by the Chief Executive Officer.
New rule 44.09 sets out rules for the service of a notice and order following remittal of the order from the High Court.
Division 44.4 – General
This Division includes general rules for the conduct of proceedings under Part 44.
New rule 44.10 provides that the Court may grant, discharge or vary a stay of proceedings.
New rule 44.11 sets out rules for the conduct of the proceedings at the first court date (without limiting rule 10.01).
Paragraphs (a)–(j) inclusive set out a non-exhaustive list of possible orders or directions that can be made at the first court date.
New rule 44.12 provides that the Court may make the following orders at a show cause hearing:
- if not satisfied that the applicant has raised an arguable case, an order dismissing the application (paragraph 44.12(1)(a))
- if it is satisfied that the application has raised an arguable case – adjourn the proceedings and order the respondent to show cause at a final hearing (paragraph 44.12(1)(b)) or without making final orders under paragraph (b) make final orders (paragraph 44.12(1)(c)).
Subrule (2) makes it clear that a dismissal under paragraph (1)(a) is interlocutory.
New rule 44.13 confines the applicant at a hearing of an application to show cause, to the relief sought and the grounds mentioned in the application or, at a final hearing, the grounds specified in the order to show cause.
New rule 44.14 specifies that a writ issued by the Court under Part 44 must be substantially in the form of a writ issued under the High Court Rules 2004 and must be served in accordance with those Rules.
New rule 44.15 makes provision for the Court to make a cost order against an unsuccessful party or an applicant who files a notice of discontinuance in accordance with new items 1 and 2 of Part 2 of Schedule 2.
[8] Schedule 1, heading
The amendment to the heading of Schedule 1 is as a consequence of new rule 44.15 which includes new items for migration proceedings. This amendment also inserts a new heading for Part 1 of Schedule 1 as a consequence of the insertion of new Part 2 in Schedule 1 by amendment item [9].
[9] Schedule 1, at the end
This amendment inserts for the purpose of subrule 44.15, new Part 2, which includes specific cost items for migration proceedings, into the cost schedule (Schedule 1).
New Part 2 includes specific costs for various stages of proceedings that are concluded and discontinued.
[10] Schedule 2, Part 1, after the form of Application for Review
This amendment incorporates a new form into Schedule 2 Part 1, being an Application under the Migration Act.