EXPLANATORY STATEMENT
Select Legislative Instrument 2012 No. 10
Issued by Authority of the Attorney-General
Family Law Act 1975
Federal Court of Australia Act 1976
Federal Magistrates Act 1999
Trans-Tasman Proceedings Legislation Amendment Regulation 2012 (No. 1)
Subsection 125(1) of the Family Law Act 1975, subsection 60(1) of the Federal Court of Australia Act 1976 and subsection 120(1) of the Federal Magistrates Act 1999 provide that the Governor-General may make regulations prescribing matters required or permitted by these Acts to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to these Acts. This includes the prescription of filing fees.
The Family Law Regulations 1984, the Federal Court of Australia Regulations 2004 and the Federal Magistrates Regulations 2000 set out the filing fees for lodging applications in the Family Court of Australia, the Federal Court of Australia and the Federal Magistrates Court of Australia, respectively. The purpose of the Trans-Tasman Proceedings Legislation Amendment Regulation 2012 (No. 1)(the Regulation) is to create a new category of filing fee for lodging an application to register a judgement under the Trans-Tasman Proceedings Act 2010.
The Trans-Tasman Proceedings Act 2010 implements the Agreement Between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement (the Agreement). This Agreement, the Act, court rules and proposed regulations will provide a procedural framework for managing litigation with a trans-Tasman element. Included in the framework are provisions that broaden the range of New Zealand judgements capable of recognition and enforcement in Australia. These provisions also simplify and streamline the process for registering the New Zealand judgements in Australian courts. The registration of a New Zealand judgement will attract a court fee which will be low to reflect the simplified process and, to the greatest extent possible, will be aligned with the fee for registering an Australian judgement in New Zealand. This requires the creation of a new fee category.
The Acts specify no conditions that need to be satisfied before the power to make the Regulation may be exercised.
The Australian federal courts, the New Zealand Ministry of Justice and the Federal Courts Branch of the Attorney-General’s Department were consulted on the Regulation.
The Office of Best Practice Regulation were consulted on this Regulation and advised that no Regulation Impact Statement was required.
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulation commences on the commencement of section 3 to 110 of the Trans-Tasman Proceedings Act 2010.
Details of the Regulation are as follows:
Section 1 — Name of regulation
Section 1 provides that the title of the Regulation is the Trans-Tasman Proceedings Legislation Amendment Regulation 2012 (No. 1)
Section 2 — Commencement
Section 2 provides that the Regulation commences on the commencement of sections 3 to 110 of the Trans-Tasman Proceedings Act 2010.
Section 3 — Amendment of Family Law Regulations 1984
Section 3 provides that the Family Law Regulations 1984 are amended as set out in Schedule 1.
Section 4 – Amendment of Federal Court of Australia Regulations 2004
Section 4 provides that the Federal Court of Australia Regulations 2004 are amended as set out in Schedule 2.
Section 5 – Amendment of Federal Magistrates Regulations 2000
Section 5 provides that the Federal Magistrates Regulations 2000 are amended as set out in Schedule 3.
Schedule 1 — Amendment of Family Law Regulations 1984
Item [1] – Regulation 3, definition of filing fee
Item 1 omits ‘14 or 16’ and inserts ‘14, 16 or 17’ to include the new fee for an application to register a New Zealand judgement under the Trans-Tasman Proceedings Act 2010 in the definition of ‘filing fee’.
Item [2] – Subregulation 11A (4)
Item 2 substitutes a new subregulation 11A (4) to provide that a full fee is payable if the fee is mentioned in item 17 of the table in Schedule 1AA, the fee for filing an application to register a New Zealand judgement under the Trans-Tasman Proceedings Act 2010. This fee will therefore not be subject to a reduction.
Item [3] – Subregulation 11A(6)
Item 3 inserts ‘or 17’ after ‘item 14’. This provides that a registered or authorised officer will not be able to waive payment of the fee for registering a New Zealand judgement under the Trans‑Tasman Proceedings Act 2010.
Item [4] – Schedule 1AA, after item 16
Item 4 inserts an item 17 after item 16 in Schedule 1AA, which provides that the fee for filing an application to register a New Zealand judgement under the Trans-Tasman Proceedings Act 2010 is AUD$95.
Schedule 2 — Amendment of Federal Court of Australia Regulations 2004
Item [1] – Regulation 3, definition of filing fee
Item 1 omits ‘14’ and inserts ‘14A’ to include the new fee for an application to register a New Zealand judgement under the Trans-Tasman Proceedings Act 2010 in the definition of ‘filing fee’.
Item [2] – Subregulation 11 (3)
Item 2 inserts ‘(other than a fee mentioned in item 14A of Schedule 1) after ‘filing fee’ to provide that there are no exemptions from liability to pay the fee for registering a New Zealand judgement under the Trans-Tasman Proceedings Act 2010.
Item [3] – Schedule 1, item 1, column 2, paragraph (a)
Item 3 omits ‘or 13’ and inserts ‘, 13 or 14A;’ to provide that the general filing fees do not apply for applications to register a New Zealand judgement under the Trans‑Tasman Proceedings Act 2010.
Item [4] – Schedule 1, after item 14
Item 4 inserts an item 14A after item 14 in Schedule 1, which provides that the fee for filing an application to register a New Zealand judgement under the Trans-Tasman Proceedings Act 2010 is AUD$95.
Schedule 3 — Amendment of Federal Magistrates Regulations 2000
Item [1] – Schedule 1, after item 20
Item 1 inserts an item 20A after item 20 in Schedule 1, which provides that the fee filing an application to register a New Zealand judgement under the Trans-Tasman Proceedings Act 2010 is AUD$95.
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in connection with this template must seek that advice in accordance with the Directions.