Commonwealth Consolidated Acts Commonwealth Consolidated ActsPart 1 -- Amendments to the Federal Court of Australia Act 1976
Federal Court of Australia Act 1976
1 Section 4
Insert:
"Division" means the General Division or the Fair Work Division of the Court.
2 Section 4 (definition of Full Court )
After "Full Court" (second occurring), insert "in a Division of the Court".
3 After section 6
Insert:
6A Assignment of Judges to Divisions
The Governor - General may:
(a) assign a Judge (other than the Chief Justice) to one of the Divisions either:
(i) in the commission of appointment of the Judge; or
(ii) at a later time, with the consent of the Judge; and
(b) vary any such assignment, with the consent of the Judge.
Note: A Judge (including the Chief Justice) who is not assigned to either Division of the Court may exercise the powers of the Court in either Division (see subsection 15(1C)).
4 Section 7
Before "Whenever", insert "(1)".
5 At the end of section 7
Add:
(2) For the purposes of this Act, a person who is performing duties and exercising powers under subsection (1) is taken not to be assigned to either Division of the Court.
Note: A Judge (including the Chief Justice) who is not assigned to either Division of the Court may exercise the powers of the Court in either Division (see subsection 15(1C)).
6 After section 12
Insert:
13 General and Fair Work Divisions of the Court
(1) For the purpose of the organisation and conduct of the business of the Court, the Court comprises 2 Divisions:
(a) the General Division; and
(b) the Fair Work Division.
(2) Every proceeding in the Court must be instituted, heard and determined in a Division.
Fair Work Division
(3) The following jurisdiction of the Court is to be exercised in the Fair Work Division:
(a) jurisdiction that is required by any other Act to be exercised in the Fair Work Division;
(b) jurisdiction that is incidental to such jurisdiction.
Note: Under section 562 of the Fair Work Act 2009 , jurisdiction is required to be exercised in the Fair Work Division of the Court in relation to matters arising under that Act.
General Division
(4) The following jurisdiction of the Court is to be exercised in the General Division:
(a) jurisdiction that is not required by any other Act to be exercised in the Fair Work Division;
(b) jurisdiction that is incidental to such jurisdiction (including jurisdiction that is required by any other Act to be exercised in the Fair Work Division).
Jurisdiction that is required to be exercised in both Divisions
(5) If the Court's jurisdiction is required to be exercised in both Divisions in relation to particular proceedings or proceedings of a particular kind, the Chief Justice may, at any time (whether before or after the proceedings are instituted), give a direction about the allocation to one or other Division of those proceedings or proceedings of that kind.
7 After subsection 15(1)
Insert:
Exercise of powers of General and Fair Work Divisions of the Court
(1A) A Judge who is assigned to a Division of the Court must exercise, or participate in exercising, the powers of the Court only in that Division, except as set out in subsection (1B).
(1B) The Chief Justice may arrange for a Judge who is assigned to a particular Division of the Court to exercise, or participate in exercising, the powers of the Court in the other Division if the Chief Justice considers that circumstances make it desirable to do so.
(1C) To avoid doubt, a Judge who is not assigned to either Division of the Court may exercise, or participate in exercising, the powers of the Court in either Division.
(1D) Subsection (1A) does not affect the validity of any exercise of powers by the Court otherwise than in accordance with that subsection.
Note 1: The following heading to subsection 15(1) is inserted " Responsibility of Chief Justice ".
Note 2: The following heading to subsection 15(2) is inserted " Judges who are also Judges of the Supreme Court of the ACT and the Northern Territory ".
8 At the end of Division 1 of Part IIA
Add:
18BA Arrangements with agencies or organisations
(1) The Chief Justice may arrange with the chief executive officer (however described) of:
(a) an agency of the Commonwealth, a State or a Territory; or
(b) another organisation;
for an employee or employees of the agency or organisation to:
(c) receive, on behalf of the Court, documents to be lodged with or filed in the Court; or
(d) perform, on behalf of the Court, other non - judicial functions of the Court.
(2) If an arrangement under subsection (1) is in force in relation to the performance by an employee of an agency or organisation of a function on behalf of the Court, the employee may perform that function despite any other provision of this Act or any other law of the Commonwealth.
(3) A function performed on behalf of the Court in accordance with an arrangement under subsection (1) has effect as if the function had been performed by the Court.
(4) Copies of an arrangement under subsection (1) are to be made available for inspection by members of the public.
9 Subsection 43(1)
After "subsection (1A)", insert "and section 570 of the Fair Work Act 2009 ".
Part 2 -- Amendments to the Federal Magistrates Act 1999
10 Section 4
After:
• Jurisdiction is conferred on the Federal Magistrates Court by other laws of the Commonwealth.
Insert:
• Jurisdiction is to be exercised in the General Division or the Fair Work Division of the Federal Magistrates Court.
11 Section 5
Insert:
"Division" means the General Division or the Fair Work Division of the Federal Magistrates Court.
12 After section 10
Insert:
10A General and Fair Work Divisions of the Federal Magistrates Court
(1) For the purpose of the organisation and conduct of the business of the Federal Magistrates Court, the Federal Magistrates Court comprises 2 Divisions:
(a) the General Division; and
(b) the Fair Work Division.
(2) Every proceeding in the Federal Magistrates Court must be instituted, heard and determined in a Division.
Fair Work Division
(3) The following jurisdiction of the Federal Magistrates Court is to be exercised in the Fair Work Division:
(a) jurisdiction that is required by any other Act to be exercised in the Fair Work Division;
(b) jurisdiction that is incidental to such jurisdiction.
Note: Under section 566 of the Fair Work Act 2009 , jurisdiction is required to be exercised in the Fair Work Division of the Federal Magistrates Court in relation to matters arising under that Act.
General Division
(4) The following jurisdiction of the Federal Magistrates Court is to be exercised in the General Division:
(a) jurisdiction that is not required by any other Act to be exercised in the Fair Work Division;
(b) jurisdiction that is incidental to such jurisdiction (including jurisdiction that is required by any other Act to be exercised in the Fair Work Division).
Jurisdiction that is required to be exercised in both Divisions
(5) If the Court's jurisdiction is required to be exercised in both Divisions in relation to particular proceedings or proceedings of a particular kind, the Chief Federal Magistrate may, at any time (whether before or after the proceedings are instituted), give a direction about the allocation to one or other Division of those proceedings or proceedings of that kind.
13 After subsection 12(3)
Insert:
Exercise of powers of General and Fair Work Divisions of the Federal Magistrates Court
(3A) A Federal Magistrate who is assigned to a Division of the Federal Magistrates Court must exercise, or participate in exercising, the powers of the Federal Magistrates Court only in that Division, except as set out in subsection (3B).
(3B) The Chief Federal Magistrate may arrange for a Federal Magistrate who is assigned to a particular Division of the Federal Magistrates Court to exercise, or participate in exercising, the powers of the Federal Magistrates Court in the other Division if the Chief Federal Magistrate considers that circumstances make it desirable to do so.
(3C) To avoid doubt, a Federal Magistrate who is not assigned to either Division of the Federal Magistrates Court may exercise, or participate in exercising, the powers of the Federal Magistrates Court in either Division.
(3D) Subsection (3A) does not affect the validity of any exercise of powers by the Federal Magistrates Court otherwise than in accordance with that subsection.
Note 1: The following heading to subsection 12(1) is inserted " Responsibility of Chief Federal Magistrate ".
Note 2: The following heading to subsection 12(4) is inserted " Assignment of Federal Magistrates to locations or registries ".
Note 3: The following heading to subsection 12(7) is inserted " Functions and powers of the Chief Federal Magistrate ".
14 Subsection 79(1)
After "proceedings", insert "or proceedings in relation to a matter arising under the Fair Work Act 2009 ".
15 Subsection 79(1) (at the end of the note)
Add "See section 570 of the Fair Work Act 2009 for proceedings in relation to matters arising under that Act.".
16 After clause 1 of Schedule 1
Insert:
1A Assignment of Federal Magistrates to Divisions
The Governor - General may:
(a) assign a Federal Magistrate (other than the Chief Federal Magistrate) to one of the Divisions either:
(i) in the commission of appointment of the Federal Magistrate; or
(ii) at a later time, with the consent of the Federal Magistrate; and
(b) vary any such assignment, with the consent of the Federal Magistrate.
Note: A Federal Magistrate (including the Chief Federal Magistrate) who is not assigned to either Division of the Federal Magistrates Court may exercise the powers of the Federal Magistrates Court in either Division (see subsection 12(3C)).
17 At the end of clause 10 of Schedule 1
Add:
(3) For the purposes of this Act, a person who is acting as Chief Federal Magistrate under subclause (1) is taken not to be assigned to either Division of the Federal Magistrates Court.
Note: A Federal Magistrate who is not assigned to either Division of the Federal Magistrates Court may exercise the powers of the Federal Magistrates Court in either Division (see subsection 12(3C)).
Administrative Decisions (Judicial Review) Act 1977
18 Paragraph (a) of Schedule 1
Omit " Conciliation and Arbitration Act 1904 ,", substitute " Fair Work Act 2009 , the Fair Work (Registered Organisations) Act 2009 , the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 ,".
Part 4 -- Application and transitional provisions
19 Application of Part 1
(1) The amendments made by Part 1 of this Schedule (other than item 8) apply:
(a) in relation to proceedings commenced after that Part commences; and
(b) in relation to proceedings that are pending in the Federal Court immediately before that Part commences, as if the reference in subsection 13(2) of the Federal Court of Australia Act 1976 (as inserted by item 6 of this Schedule) to "be instituted, heard and determined" were a reference to ", after item 6 of Schedule 17 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 commences, be heard and determined".
(2) A person who is a Judge (other than the Chief Justice) of the Federal Court immediately before Part 1 of this Schedule commences, is taken, for all purposes, not to have been assigned under section 6A of the Federal Court of Australia Act 1976 (as inserted by item 3 of this Schedule) to either Division of the Federal Court.
Note: A Judge (including the Chief Justice) who is not assigned to either Division of the Court may exercise the powers of the Court in either Division (see subsection 15(1C) of the Federal Court of Australia Act 1976, as inserted by item 7 of this Schedule).
20 Application of Part 2
(1) The amendments made by Part 2 of this Schedule apply:
(a) in relation to proceedings commenced after the Part commences; and
(b) in relation to proceedings that are pending in the Federal Magistrates Court immediately before that Part commences, as if the reference in subsection 10A(2) of the Federal Magistrates Act 1999 (as inserted by item 12 of this Schedule) to "be instituted, heard and determined" were a reference to ", after item 12 of Schedule 17 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 commences, be heard and determined".
(2) A person who is a Federal Magistrate (other than the Chief Federal Magistrate) of the Federal Magistrates Court immediately before Part 2 of this Schedule commences, is taken, for all purposes, not to have been assigned under clause 1A of Schedule 1 to the Federal Magistrates Act 1999 (as inserted by item 16 of this Schedule) to either Division of the Federal Magistrates Court.
Note: A Federal Magistrate (including the Chief Federal Magistrate) who is not assigned to either Division of the Federal Magistrates Court may exercise the powers of the Federal Magistrates Court in either Division (see subsection 12(3C) of the Federal Magistrates Act 1999 , as inserted by item 13 of this Schedule).
Part 5 -- Jurisdiction of courts
21 Conferring jurisdiction on the Federal Court
Jurisdiction is conferred on the Federal Court in relation to any matter (whether civil or criminal) arising under:
(a) this Act; or
(b) the WR Act as it continues to apply because of this Act.
22 Exercising jurisdiction in the Fair Work Division of the Federal Court
The jurisdiction conferred on the Federal Court under item 21 is to be exercised in the Fair Work Division of the Federal Court if:
(a) an application is made to the Federal Court under this Act or the WR Act as it continues to apply because of this Act; or
(b) a writ of mandamus or prohibition or an injunction is sought in the Federal Court against a person holding office under this Act or the WR Act as it continues to apply because of this Act; or
(c) a declaration is sought under section 21 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or
(d) an injunction is sought under section 23 of the Federal Court of Australia Act 1976 in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or
(e) a prosecution is instituted in the Federal Court under this Act or the WR Act as it continues to apply because of this Act; or
(f) an appeal is instituted in the Federal Court from a judgment of the Federal Circuit and Family Court of Australia (Division 2) or a court of a State or Territory in a matter arising under this Act or the WR Act as it continues to apply because of this Act; or
(g) proceedings in relation to a matter arising under this Act, or the WR Act as it continues to apply because of this Act, are transferred to the Federal Court from the Federal Circuit and Family Court of Australia (Division 2); or
(h) the Federal Circuit and Family Court of Australia (Division 2) or a court of a State or Territory states a case or reserves a question for the consideration of the Federal Court in a matter arising under this Act or the WR Act as it continues to apply because of this Act; or
(i) the President refers, under section 608 of the FW Act, a question of law to the Federal Court in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or
(j) the High Court remits a matter arising under this Act or the WR Act as it continues to apply because of this Act to the Federal Court.
23 No limitation on Federal Court's powers
To avoid doubt, nothing in this Act limits the Federal Court's powers under section 21, 22 or 23 of the Federal Court of Australia Act 1976.
24 Appeals from eligible State or Territory courts
(1) An appeal lies to the Federal Court from a decision of an eligible State or Territory court exercising jurisdiction under this Act or the WR Act as it continues to apply because of this Act.
(2) It is not necessary to obtain the leave of the Federal Court, or the court appealed from, in relation to an appeal under subitem (1).
(3) No appeal lies from a decision referred to in subitem (1), except as provided for by this item.
25 Conferring jurisdiction on the Federal Circuit and Family Court of Australia (Division 2)
Jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in relation to any civil matter arising under:
(a) this Act; or
(b) the WR Act as it continues to apply because of this Act.
26 Exercising jurisdiction in the Fair Work Division of the Federal Circuit and Family Court of Australia (Division 2)
Jurisdiction conferred on the Federal Circuit and Family Court of Australia (Division 2) under item 25 is to be exercised in the Fair Work Division of the Court if:
(a) an application is made to the Court under this Act or the WR Act as it continues to apply because of this Act; or
(b) an injunction is sought under section 140 of the Federal Circuit and Family Court of Australia Act 2021 in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or
(c) a declaration is sought under section 141 of the Federal Circuit and Family Court of Australia Act 2021 in relation to a matter arising under this Act or the WR Act as it continues to apply because of this Act; or
(d) proceedings in relation to a matter arising under this Act, or the WR Act as it continues to apply because of this Act, are transferred to the Federal Circuit and Family Court of Australia (Division 2) from the Federal Court; or
(e) the High Court remits a matter arising under this Act or the WR Act as it continues to apply because of this Act to the Federal Circuit and Family Court of Australia (Division 2).
27 No limitation on powers of the Federal Circuit and Family Court of Australia (Division 2)
To avoid doubt, nothing in this Act limits the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 139, 140 or 141 of the Federal Circuit and Family Court of Australia Act 2021 .