EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 160
Federal Magistrates Court Amendment Rules 2009 (No. 2)
Issued by the authority of the Federal Magistrates of the Federal Magistrates Court of Australia
Section 81 of the Federal Magistrates Act 1999 permits the Federal Magistrates or a majority of them, to make rules of Court not inconsistent with the Act. These rules may provide for the practice and procedure to be followed in the Court and may extend to all matters incidental to any such practice or procedure that are necessary or convenient to be prescribed for the conduct of any business of the Court.
Under sub-section 81(3) of the Federal Magistrates Act 1999 the Legislative Instruments Act 2003 (other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in relation to rules of court made by the Court under the Federal Magistrates Act 1999 or another Act:
(a) as if a reference to a legislative instrument were a reference to a rule of court; and
(b) as if a reference to a rule-maker were a reference to the Chief Federal Magistrate acting on behalf of the Federal Magistrates of the Court; and
(c) subject to such further modifications or adaptations as are provided for in regulations made under section 120 Federal Magistrates Act 1999.
The Federal Magistrates have agreed to adopt the Federal Magistrates Court Amendment Rules 2009 No. 2 (‘the Amendment Rules’).
The Amendment Rules include amendments to the Federal Magistrates Court Rules 2001 (‘the Rules’), for proceedings in the Fair Work Division of the Court following passage of the Fair Work Act 2009, the Fair Work (Transitional and Consequential Provisions) Act 2009 and the Fair Work (State Referral and Consequential and Other Amendments) Act 2009.
The Amendment Rules have been the subject of consultation with the Federal Court of Australia.
Details of the Amendment Rules are in the Attachment.
The Amendment Rules commence on 1 July 2009.
ATTACHMENT
Federal Magistrates Court Amendment Rules 2009 (No. 2)
Rule 1 – Name of Rules
Rule 1 provides that the Rules are to be cited as the Federal Magistrates Court Amendment Rules 2009 (No. 2).
Rule 2 – Commencement
Rule 2 provides that the Rules will commence on 1 July 2009.
Rule 3 – Amendment to the Federal Magistrates Court Rules 2001
Rule 3 provides that the Rules are amended as set out in Schedule 1.
SCHEDULE 1
[1] Paragraph 4.05(2)(b)
This machinery amendment is as a result of new paragraph 4.05(2)(c) (see item [2]).
[2] After paragraph 4.05(2)(b)
This amendment inserts a new paragraph 4.05(2)(c). The effect of the amendment is to exclude certain applications filed in accordance with the Fair Work Division from the general requirement to file a supporting affidavit or pleading with an application.
[3] After Chapter 6
A new Chapter 7 - Fair Work Division is inserted and includes rules of practice and procedure for applications commenced in the Fair Work Division of the Court. The Fair Work (Transitional and Consequential Provisions) Act 2009 includes consequential amendments to the Federal Magistrates Act 1999 to establish two divisions within the Federal Magistrates Court, a Fair Work Division and a General Division. The Fair Work Act 2009 confers a general jurisdiction in certain matters arising under that Act and requires that jurisdiction to be exercised in the Fair Work Division of the Court. The Fair Work (Transitional and Consequential Provisions) Act 2009 and the Fair Work (State Referral and Consequential and Other Amendments) Act 2009 respectively provide similarly in respect of matters arising under the continuing operation of the pre-July 2009 Workplace Relations Act 1996 and the Building and Construction Industry Improvement Act 2005.
New Chapter 7 includes
Division 45.1 - General
Division 45.2 - Unlawful termination of employment (Workplace Relations Act)
Division 45.3 - Contraventions of the Fair Work Act
Division 45.4 - Small claims
Division 45.5 - Building and Construction Industry Improvement Act
All proceedings in the Fair Work Division are to commence by way of an approved form of application.
In addition, the rules provide that an application filed in the Fair Work Division in accordance with rule 45.04, 45.06, 45.07, 45.08 or 45.12 must be accompanied by an approved claim form. The amendments made to paragraph 4.05(2) by way of item [2] remove the requirement for an affidavit or pleading to accompany such an application.
All applications filed in the Division where a separate claim form is not required to accompany the application must be accompanied by a supporting affidavit or pleading in accordance with rule 4.05.
The rules also set out the need, in appropriate proceedings, for accompanying certificates as required under provisions of the Workplace Relations Act 1996, and the Fair Work Act 2009: see sub-paragraphs 45.04(2)(b)(ii), 45.06(b)(ii), and 45.07(b)(ii).
Division 45.4 - Small claims
Section 548 of the Fair Work Act 2009 makes provision for certain proceedings to be dealt with as small claims proceedings. Division 45.5 introduces rules in relation to small claims.
Rule 45.11 provides that an applicant may request that an application for compensation be dealt with under this Division if the compensation is not more than $20,000 and the compensation is for an entitlement mentioned in subsection 548(1A) of the Fair Work Act 2009. When dealing with a small claim application the Court is not bound by the rules of evidence but may inform itself of any matter in any manner as it thinks fit: subrule 45.11(2).
A party to a small claims application may not be represented by a lawyer without the leave of the Court: subrule 45.13(1)
[4] Schedule 3, Part 2
The amendment removes from Schedule 3, Part 2 the application in the Federal Magistrates Court of Order 48, Divisions 1 and 2 of the Federal Court rules as specific rules for Fair Work proceedings are now prescribed by way of new Chapter 7