Chapter 2Key issues
2.1This chapter considers the input received by submitters in relation to the proposed amendments contained in the Bill and puts forward the committee’s views and recommendations.
Schedule 1 – Federal Court Criminal Jurisdiction
2.2Submitters provided a range of views on the conferral of criminal jurisdiction on the Federal Court of Australia.
Consultation and engagement with affected stakeholders
2.3The Law Council of Australia (LCA) expressed concern about the inclusion of the amendments specific to conferral of jurisdiction on the Federal Court. The LCA suggested that ‘the nondescript title of the Bill, which does not make reference to the Federal Court, may mean that interested stakeholders are unaware of the Bill’s potential implications’.
2.4While the LCA acknowledged the Bill replicates provisions of an October 2022 exposure draft of the Federal Court of Australia Amendment (Extending Criminal Jurisdiction and Other Measures) Bill, the LCA raised concerns that it was not clear the extent to which the feedback provided during consultation on the former exposure draft was considered in the development of Schedules 1 and 2 of the current Bill.
2.5The Attorney-General’s Department (AGD) noted that ‘[s]everal amendments were made to the schedules in response to stakeholder views’ put forward for the 2022 exposure draft bill, including:
limiting Federal Court proceedings in relation to certain offences against the Criminal Code to ASIC or other specified persons;
amending relevant provisions to clarify the limitations would not impact the powers of the Commonwealth Director of Public Prosecutions;
redrafting proposed subsections 243A(3) – (4) of the ASIC Act as proposed subsection 243A(3) to be consistent with the drafting of existing subsection 12HC(3); and
removal of the previously proposed paragraph 23L(1)(a) of the FederalCourt Act, to ensure there was no risk of infringing on the right to a fair trial.
2.6ASIC was strongly supportive of the proposed amendments of Schedule 1, noting the Department’s ‘extensive consultation on the proposed conferral and throughout the drafting of the Bill’.
Delays in prosecuting corporate crimes
2.7Both ASIC and the LCA highlighted that the conferral of jurisdiction on the Federal Court of Australia was a result of the Government Response to the RoyalCommission into Misconduct in the Banking, Superannuation and Financial Services Industry.
2.8ASIC noted that:
The Government committed to extending the Federal Court’s jurisdiction to boost the overall capacity within the Australian court system and ensure the prosecution of financial crimes did not face delays as a result of heavy caseloads in the State and Territory courts.
2.9As part of this commitment, the Government provided an additional $70.1million to boost ASIC’s enforcement capabilities and $41.6million to the Commonwealth Director of Public Prosecutions (CDPP) to prosecute briefs from ASIC. Further, the Government response to the Royal Commission noted ‘effective deterrence through judicial decisions relies on the timely institution of proceedings and punishment of misconduct.’
2.10The AGD noted that an updated approach ‘will enhance the capacity of Australia’s court system and support ASIC to more efficiently prosecute corporate criminal conduct’.
2.11The AGD submission also noted that the Bill would:
confer jurisdiction on the Federal Court to hear and determine summary offences which arise from substantially the same facts as primary indictable offences being heard in the Court. This will avoid the possibility of prosecutors having to commence new proceedings in a State or Territory court in relation to the related summary offence.
2.12However, the LCA emphasized concern with the ‘unfounded inference’ that ‘delays in the prosecution of Commonwealth corporate crime briefs are attributable to the jurisdiction in which they are being tried’. The LCA noted that delays in prosecution could occur due to the high complexity of the matters being investigated, limited resourcing of investigating agencies and issues concerning eligibility for legal assistance for those accused. The LCA argued that ‘delays are not dependent on jurisdiction.’
2.13Conversely, ASIC was supportive of the conferral of enhanced jurisdiction to the Federal Court, noting the difficulties associated with the current system and the impact it can have on prosecution of crimes:
In the last four financial years, ASIC has commenced 154 proceedings before the Federal Court, demonstrating the significant expertise of the Court in the legislation ASIC administers. Contraventions of the civil penalty provisions regularly heard by the Court also often attract criminal penalties. Currently ASIC must pursue criminal contraventions in the State and Territory courts.
2.14The ASIC submission highlighted the expertise of the Federal Court in relation to civil commercial matters and that this enables ‘the Federal Court to be well-positioned to accommodate the conferral of a greater corporate criminal jurisdiction and therefore to increase the speed with which such matters are dealt with.’
Expertise of judges
2.15The LCA raised concerns about the capacity and expertise of the judges of the Federal Court to rule on criminal law and related proceedings, especially in comparison to the State or Territory courts. Specifically:
The Law Council acknowledges that some Federal Court judges will have significant experience in the field of federal criminal law and related proceedings. However, the reality is that a significant portion of Federal Court judges will have limited experience in this practice area, given that the Federal Court focuses on federal legislation and commercial matters.This contrasts with State superior courts, where there is generally a greater proportion of judges with criminal law experience.
2.16Further, the individualised docket system that the Federal Court operates under means that each prosecution is supervised by one judge from commencement to conclusion. The LCA raised concerns that there are currently only fifteen listed judges in the Federal Crime and Related Proceedings National Practice Area.
The Law Council is concerned that there may be insufficient numbers of Federal Court judges with experience running complex criminal jury trials in every superior court registry, particularly in Adelaide, Brisbane and Perth.
2.17The LCA suggested that this could pose risk for processes of appeal in the Federal Court, noting:
If the Government intends for criminal appeals to only be determined by judges with criminal law experience in the Full Federal Court, then this would lead to a very small number of trial judges sitting in judgment of each other’s rulings and directions.
2.18The EM to the Bill notes that in the 2019–20 Budget, the Federal Court was provided with $35.5 million over the forward estimates (and ongoing) to support the appointment of two additional judges in the Federal Court’s Federal Crime and Related Proceedings National Practice Area and for two new jury courtrooms in the Sydney Commonwealth Law Courts.
The need for greater clarity in the explanatory materials
2.19The LCA specified issues with the broad offence categories captured under proposed subsection 67G(4), arguing that some of them (specifically forgery, identity crime, money laundering and computer offences) are not necessarily associated with corporate criminal conduct and recommended further information being provided as to the scope of inclusion of these offences. Further, the LCA recommended ‘[t]hese offence categories should be reconsidered and, if retained, the inclusion of each category should be clearly justified in the Bill’s Explanatory Memorandum’.
2.20The EM highlights that ‘[n]ew subsections 67G(4)–(6) will not impact the existing jurisdiction of State and Territory courts to hear and determine prosecutions for the identified offences against the Criminal Code, as conferred by subsection 68(2) of the Judiciary Act’.
2.21The LCA was in support of the inclusion of new section 32AE, commending the Bill for expressly requiring ‘the first court to have regard to the interests of justice in considering whether to make an order to transfer the proceedings’. However, the LCA also sought further clarification on the criteria for assessing the interests of justice:
There is no defined set of criteria for assessing the interests of justice. Rather, the court should assess the interests of justice on a case-by-case basis, having regard to all relevant circumstances.
2.22The LCA suggested that potential criteria for assessing the interests of justice may include the nature of the offence, location of the offending conduct, location of witnesses and costs and expenses to the parties of the trial being conducted in a particular location.
2.23In regard to the specific criteria suggested by the LCA, the AGD referenced the precedent established in the Jurisdiction of Courts (Cross-Vesting) Act 1987, particularly:
Given that other transfer regimes in Commonwealth legislation, particularly the Cross-Vesting Act, do not specify the matters that should or must be considered by a court in assessing whether it would be in the interests of justice to transfer part or all of the proceedings, it would not be appropriate to include any exhaustive or non-exhaustive criteria in this Bill.
Transfer of proceedings
2.24The LCA recommended that the scope of the Bill be expanded in relation to the transfer of proceedings. Currently, the Bill makes provision that the court may transfer a proceeding of its own initiative, or on application by the prosecutor, to ‘a more appropriate court’.
2.25The EM to the Bill notes the principles of procedural fairness will require the defendant to be heard before a decision to transfer is made and outlines that ‘the court must also have regard to the interests of justice in determining to transfer part or all of the proceedings’. However, the LCA recommended that in the interests of full procedural fairness that the defendant also be granted the right to make an application to transfer the proceedings. The LCA also recommended that the prosecutor should be required to apply to transfer proceedings prior to committal for trial or sentence.
2.26The LCA argued that it was:
… undesirable that the Bill will enable the same criminal proceedings to be brought in either the Federal Court or a State/Territory court, with different procedures, merely based on the choice by a prosecutor as to where a defendant will be indicted. This could give rise to the problematic perception that a prosecutor is electing a certain jurisdiction, based on the court in which they prefer to lay an indictment.
2.27To avoid this perception, the LCA proposed that detailed public policy guidelines be produced by the CDPP, ASIC and other relevant agencies about when a prosecutor should apply for transfer of proceedings.
Schedule 2 – Federal Court Juries
2.28The LCA suggested there was a lack of clarity surrounding the application of the hybrid jury preparation process for the Federal Court. The LCA took the view that ‘this proposed discretionary, hybrid jury preparation mechanism is problematic’.
2.29The LCA recommended greater clarity in relation to the utilisation of the proposed process, and in particular said that:
Should the hybrid approach to jury preparation be retained in the Bill, the differences between the process in Subdivision D of Part III of the FCA Act and State and Territory jury selection rules should be examined in greater detail by the AGD and canvassed in the Bill’s Explanatory Memorandum.Further, the Bill and/or its explanatory materials should provide more detailed specification of the criteria to be applied by the Sheriff in utilising the hybrid procedure to be given effect by Schedule 2.
Schedule 3 – Amendment of the Marriage Act 1961
2.30Regarding the proposed amendments to the Marriage Act, the CelebrantInstitute was largely supportive of the Bill on the basis that the proposed amendments would enable further efficient operation of the MarriageAct for celebrants.
The need for greater clarity in relation to identity documents
2.31The Celebrant Institute commented on the issue of a statutory declaration being an acceptable form of identification where it is not practicable for a party to obtain a birth certificate or passport. The Celebrant Institute voiced concerns about the instance of an individual being able to apply for a passport (for example, a refugee who cannot access their birth certificate but is eligible for an Australian passport) and whether the individual would be required to obtain a passport rather than rely on provision of a statutory declaration.
2.32The AGD addressed this issue in its submission, explaining ‘if it is impracticable for a person to obtain an official (birth) certificate and they do not have a passport, they can provide a Commonwealth Statutory Declaration to the authorised celebrant’. The EM further expands on this issue by stating:
This item will clarify that a statutory declaration is only to be used in exceptional circumstances. The term impracticable does not mean inconvenient.
2.33The EM to the Bill acknowledges the ‘significant confusion’ that has arisen from the current order of paragraph 42(1)(b) of the Marriage Act relating to evidence of identity. The EM outlines the purpose of the proposed amendment:
The amendment will clarify where it is impracticable (practically impossible) for the party to the marriage to obtain a certificate or official extract of an entry in an official register and they do not have a passport, they may rely on a statutory declaration to declare to the best of their knowledge, their date and place of birth.
Ensuring free and informed consent prior to marriage
2.34The Celebrant Institute expressed concern with the proposed amendment in Section 6 of Part 3 of the Bill, regarding the requirement that marriage celebrants must meet separately with the individuals party to the marriage ‘to ensure each party is freely and voluntarily consenting to the marriage’.
2.35The Celebrant Institute suggested there was a lack of detail in the Bill or the EM relating to the requirements of this meeting; including length of time, guidance about content of the discussion and the general approach to be taken by the celebrant. Further, the Celebrant Institute noted the challenges that may arise in some religious or cultural settings as a result of a private meeting with each party to the marriage.
2.36The Celebrant Institute articulated the nuanced nature of ascertaining consent and queried whether an individual meeting with the parties would be the appropriate mechanism to ensure consent:
While this meeting may appear as though it would give parties who are under duress or not truly consenting the opportunity to raise any issues with the celebrant, we think it unlikely, in practice, that such parties will do so. This could be for a myriad of reasons, including fear of reprisals from their partner or family members, or concern about the emotional and financial toll of calling [off] a wedding, particularly if the meeting were held on the same day as the wedding.
2.37Instead of mandating an in person meeting between the celebrant and each party to the marriage, the Celebrant Institute instead recommended enhanced education for celebrants on how to assess real consent and how to address situations where real consent may be in doubt.
2.38The LCA was supportive of the proposed new section 42B of the Marriage Act:
The Law Council is supportive of Governmental efforts to ensure that individuals are freely and voluntarily entering marriages, noting— with concern—that forced marriages continue to occur in Australia.
2.39However, the Law Council did echo the calls from the Celebrant Institute for greater guidance and information to be provided in an update to the AGD’s Guidelines on the Marriage Act 1961 for authorised celebrants, especially as related to the proposed requirement for a celebrant to meet independently with each party to a marriage.
2.40The AGD clarified the specific requirements of the meeting, articulating:
The duration, timing and approach to a separate meeting with each party to a marriage is at the discretion of the marriage celebrant, and while there will not be a mandatory approach, the department will work with celebrants to develop guidance on options for inclusion in the Guidelines to support celebrants to comply with this obligation.
2.41In regards to the issues of cultural considerations, the AGD also specified that the meeting did not need to be in person, ‘the requirement is only for a celebrant to meet with each party to a marriage ‘separately’. There is no requirement to meet alone with a party.’
2.42The EM of the Bill outlines this proposed amendment as complementary to the changes to the virtual signing of the Notice of Intended Marriage (NOIM):
The amendment will codify expectations of authorised celebrants to be confident the parties are fully consenting to the marriage and provide an additional safeguard where the NOIM is signed by the parties and witnessed by an authorised witness (either the celebrant or another authorised person) remotely.
2.43Further, the AGD highlighted that ensuring a party is consenting or capable of consenting to marriage is an important principle from the Guidelines on the Marriage Act 1961 for authorised celebrants and that the Bill ‘incorporates this long-standing principle from the Guidelines on the face of the legislation.’
Schedule 4 – Other Amendments
2.44Submitters held a range of views on the proposed amendments contained in Schedule 4 of the Bill.
Arbitration amendments ensuring due process and procedural fairness
2.45In regards to the proposed arbitration amendments outlined in Part 1 of Schedule 4 of the Bill, the AGD noted that this procedural measure ‘was developed in consultation with [the] FCFCOA, and is supported by legal bodies including family law arbitrators’.
2.46The EM highlights that the proposed amendments ‘promote due process and procedural fairness’ in arbitration by ensuring:
Individuals will have the ability to access the most appropriate Division to determine a question of law that has arisen during an arbitration or upon seeking review of a registered arbitral award.
2.47The Family Law Council articulated its support for the proposed amendments, noting in particular that it would not increase the workload of Division 1 judges and that Brisbane, Sydney and Melbourne have specialist Division 1 Arbitration List judges and this will ‘ensure the smooth running and specialist attention to arbitration reviews’.
2.48The Family Law Council also highlighted the precedent established in the case of McLaughlin & McLaughlin (2023) FedCFamC2F 1160 whereby the judge in the case was not able to consider all aspects of the case as a result of being a sitting judge of the Federal Circuit and Family Court of Australia (Division 2), not a judge of Division 1. The Family Law Council submitted that the proposed amendment:
… gives appropriate flexibility for all issues relating to the challenge to the arbitral award to be dealt with in the one Court and avoids situations where an applicant may be forced to abandon elements of an asserted error on the basis of lack of jurisdiction.
Clarity in relation to the repeal of Section 213A of the Native Title Act 1993
2.49The National Farmers’ Federation (NFF) was opposed to the repeal of the NativeTitle Respondent Scheme. Specifically, the NFF argued:
The NFF recognises Native Title negotiation as a complex, difficult and tense area. For the Government to take the inequitable approach of allowing (by deed if not by design) the Native Title representative bodies (as claimants) to utilise their existing legal capacities to engage in these processes without commensurate support for respondents is inequitable.
2.50The NFF submission argued that the Scheme has facilitated effective resolution of Native Title claims through contributing to the salary of Native Title officers who assist respondents to Native Title litigation. Further, the NFF highlighted the benefits of the program as:
increasing understanding of native title issues by members of peak bodies or organisations;
coordination of instructions to legal representatives; and
grouping of respondents in claim areas.
2.51The Local Government Association of Queensland (LGAQ) raised similar concerns, highlighting the unique position of local governments in such claims:
Local governments need to be involved, to some extent, in every land determination process to ensure community assets are identified and the continuity of council services.
2.52The LGAQ also emphasized the financial pressures facing Queensland councils currently and noted ‘the cost of being part of Native Title claims and land transfers is something they cannot afford.’ The LGAQ highlighted the usage of the Scheme whereby in 2021, the organisation assisted councils to access almost $133,000 in funds under the Scheme.
2.53Similarly to the NFF, the LGAQ expressed concern about the potential disparity in representation that the abolition of the Scheme could facilitate:
Without the Native Title Respondents Funding Scheme, local governments cannot afford to be part of these processes, and there will be no avenue to address their interests or have access to specialist legal expertise. With Commonwealth assistance still available to Native Title claimants for costs, this leaves an unequal footing to which councils are forced to be part of this process.
2.54The Law Council of Australia raised concerns that there may be an unintended consequence of the repeal of the Scheme, specifically related to the New South Wales Aboriginal Land Councils. The LCA explained that NSW Aboriginal Land Councils are ‘obliged to respond to native title applications made in relation to land under their management if they wish to deal in the land’, due to the specific interaction between the Aboriginal Land Rights Act 1983 (NSW) and the Native Title Act 1993.
2.55The EM of the Bill acknowledged that in some cases Aboriginal and Torres Strait Islander organisations and individuals accessed the Scheme:
In some circumstances, the NTRS [Native Title Respondents Scheme] also supported Aboriginal and Torres Strait Islander people and entities to participate as respondents to native title claims, in order to facilitate the protection and enjoyment of their non-native title rights and interests in the claim area.
2.56The LCA put forward concerns that the abolition of the Scheme had the potential to result in a high financial burden on NSW Aboriginal Land Councils who are unable to access other streams of funding available to claimants in native title cases. Further, ‘the abolition of the Scheme may negatively impact the ability of these entities to participate in, and settle, complex native title claims in a coordinated and efficient manner’.
2.57Conversely, the Central Desert Native Title Services Limited (Central Desert Services) was supportive of the proposed abolition of the Scheme. CentralDesert Services specifically noted the repeal would ‘decrease occurrences of parties unnecessarily becoming respondents in matters simply due to them having been eligible for funding to do so.’
2.58Central Desert Services observed that the repeal was not in breach of any imposed obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. Further, Central Desert Services highlighted that Indigenous peoples seeking to protect their non-native title property rights in native title matters may still be eligible for funding under the Attorney-General Department’s Special Circumstances Scheme.
2.59Finally, Central Desert Services underlined the shifts that have taken place in the legal landscape to enable the proposed repeal of Section 213A, stating:
Many questions of law surrounding native title have now been settled so the necessity of litigation has shifted to a framework of negotiation and mediation. This paradigm shift has reduced the need for funded litigation.
2.60In its submission to the inquiry, the AGD noted the abolition of the Scheme was communicated to stakeholders well in advance, explaining that:
following the election, abolition of the NTRS was communicated to existing grantees and publicised on the AGD website;
the approach was highlighted in the October 2022 – 23 Budget Paper No.2; and
where there was a remaining balance of funding, grants for the period 1May to 31 October 2022 were extended to 30 April 2023, providing respondents additional time to access the funds.
2.61The proposed abolition of the NTRS would also represent the implementation of a longstanding commitment by successive governments. As outlined by the Parliamentary Library, by 2002 the settling of most fundamental legal issues relating to native title meant that the government’s express preference was for claims to be resolved through negotiation rather than litigation. In subsequent years, successive governments restricted funding to the NTRS and limited the scope of the program.
2.62Further, the EM outlines additional considerations made in the proposed abolition of the Scheme, specifically noting that there are additional streams of funding available for native title claimants:
Applicants for Native Title determinations, common law holders of native title and Registered Native Title Bodies Corporate will continue to receive legal assistance provided through Native Title Representative Bodies and Native Title Service Providers, and other programs which are administered by the National Indigenous Australians Agency.
Committee view
2.63The committee acknowledges the contributions made by all submitters and notes the diverse range of expertise shared with the committee, given the broad range of topics covered in this omnibus Bill.
2.64A common theme across the evidence received by the committee relates to the need for greater clarification and explanation in the EM regarding the intended operation of the Bill’s provisions.
2.65In relation to Schedules 1 and 2 of the Bill, the committee acknowledges the evidence provided by the Attorney-General’s Department describing the consultation and engagement on the proposed amendments. However, it appears to the committee that there are still a range of outstanding issues which would benefit from further clarification, as most notably discussed by the LawCouncil of Australia.
2.66The committee is of the view that there could be further explanation of the proposal to confer criminal jurisdiction on the Federal Court of Australia in relation to crimes in the jurisdiction of ASIC. The committee suggests the EM would be improved by more effectively articulating how delays would be reduced, given the argument by the LCA that delays are not dependent on jurisdiction.
2.67The committee supports the intention of the Bill to allow the transfer of corporate crimes to the most appropriate court and sees benefit in the LawCouncil of Australia’s proposal that the accused should also be granted the right to apply for a transfer of proceedings.
2.68In regards to the selection of court for corporate criminal offences, the committee is of the view that the provision of comprehensive public policy guidelines by the CDPP and ASIC, as suggested by the LCA, will alleviate any potential issues that may arise.
2.69The committee is of the view that the explanatory materials could be enhanced with the provision of additional information.
2.70The committee recommends the Attorney-General’s Department update the Explanatory Memorandum to the Attorney-General’s Portfolio Miscellaneous Measures Bill 2023 to include further guidance and information to clarify how the proposed reforms to the Federal Court of Australia in Schedule 1 and 2 of the Billwill result in more efficient prosecution of corporate crimes and increased procedural fairness.
2.71In relation to the proposed amendments to the Marriage Act, the committee appreciates the intent of the Bill to ensure that the operation of the Marriage Act is efficient and operates in a manner that is fit for purpose for both marriage celebrants and parties to a marriage.
2.72The committee commends the attention being paid to the issue of free and informed consent, especially given that forced marriages are still likely to occur in Australia. However, the committee is concerned that in seeking to enhance the accessibility of marriage through the remote witnessing of the NOIM, the Bill may simultaneously create an additional barrier not in line with the spirit of this reform. The requirement for a celebrant to meet separately with both parties to the marriage prior to its solemnisation could place an additional burden on marriage celebrants that may not achieve the intended purpose of confirming consent.
2.73The committee in particular recognises the arguments made by the CelebrantInstitute, outlining the practical difficulties in facilitating such meetings and the lack of guidance provided on how they should be approached in order to ensure free and informed consent to marry.
2.74The committee therefore sees benefit in the AGD updating the Marriage Act Guidelines for authorised celebrants, to clarify how proposed section 42B of the Marriage Act will operate in practice and to ensure celebrants are properly supported in their meetings with each party to a marriage, and in determining consent.
2.75The committee recommends that, subject to the passage of the Bill, the Attorney-General’s Department amend the Guidelines on the Marriage Act 1961 for authorised celebrants to reflect the requirements for a celebrant to hold a separate meeting with each party to the marriage before it is solemnised. The amendments should provide information as to how the meetings might operate in practice and how consent can be determined.
2.76The committee appreciates that there are a divergence of views on the proposed repeal of Section 213A of the Native Title Act 1993. While the committee recognises the intention of the repeal of the Native Title Respondents Scheme, the committee is also of the view that the explanatory materials for the Bill could more comprehensively address the concerns raised by submitters.
2.77However, the committee also acknowledges that the proposed repeal of the NTRS would represent the implementation of a government commitment and would update the legislation to more effectively represent the current legislative landscape that the Native Title Act 1993 operates within, most notably the focus on negotiation and mediation rather than litigation.
2.78Notwithstanding that some areas of the EM could benefit from greater detail, as identified by the committee, as a whole the Bill represents sensible and necessary amendments.
2.79The Bill would ensure that legislation administered by the AGD remains consistent and operates efficiently for individuals and organisations affected by the relevant Acts. In recognition of these benefits, the committee is in support of passage of the Bill.
2.80The committee recommends the Bill be passed.
Senator Nita Green
Chair