Bills Digest no. 18 2015–16
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Jonathan Chowns
Law and Bills Digest Section
4 September 2015
Contents
Purpose of
the Bill
Changes made
by the Bill
Committee
consideration
Policy
position of non-government parties/independents
Position of
major interest groups
Financial
implications
Statement of
Compatibility with Human Rights. 7
Date introduced: 25 June
2015
House: Senate
Portfolio: Attorney-General
Commencement: The substantive
provisions commence on the day after the Act receives Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
The purpose of the Civil Law and Justice (Omnibus
Amendments) Bill 2015 (the Bill) is to make minor amendments to civil justice
legislation in several Acts.
The Explanatory Memorandum describes the amendments as
‘uncontroversial’ and this appears on its face to be true. Some readers may at
first see an exception in the amendments made to the Federal Circuit Court
of Australia Act 1999, which will clarify that a person to whom an arrest
warrant is issued under the Act may use reasonable force to enter premises. These
provisions attracted the attention of the Senate Standing Committee for the
Scrutiny of Bills. However this change can still be regarded as uncontroversial,
since its primary effect is to resolve a current ambiguity in the law.
Another aspect of the Bill that could attract attention is
an amendment to the Federal Court of Australia Act 1976. While most of
the changes to this Act are favourable to an accused, there is one change which
will extend the rule that time spent on bail should not count towards the
service of a sentence. This rule currently applies to indictable offences and
the Bill will extend it to summary offences. It is still a minor change.
The Bill is an omnibus bill which will mainly amend these
Acts:
- Administrative
Appeals Tribunal Act 1975
- Bankruptcy
Act 1966
- Evidence
Act 1995
- Federal
Circuit Court of Australia Act 1999
- Federal
Court of Australia Act 1976 and
- International
Arbitration Act 1974.
Consequential amendments are made to several other Acts that
are listed on page 6 of the digest.
Amendments to the Administrative
Appeals Tribunal Act 1975 (AAT Act)
The AAT Act establishes a scheme for the review by
the Tribunal of certain decisions made under Commonwealth Acts.[1]
These are the material amendments made to the AAT Act:
When a person applies for review of a decision, the AAT Act
now provides that the Tribunal must give notice of the receipt of the
application to the person and to the decision maker.[2]
However, there may be other parties involved. The Bill corrects an omission by
requiring that all parties to a review receive notice (item 1).
The AAT Act now allows the Tribunal to prevent
disclosure of certain information about the proceedings ‘including to another
party or parties’.[3]
It is not clear whether this means all parties. The Bill clarifies that the
Tribunal can make orders that the information must not be disclosed to any or
all of the parties (item 2).
The AAT Act now gives only a presidential member or a
senior member of the Tribunal the power to dismiss an application for review of
a security assessment, in limited circumstances.[4]
The Bill removes that standing power from presidential and senior members, but
gives the President the flexibility to authorise those members and other
members to dismiss an application (item 3).
The AAT Act now allows for some proceedings to be
reinstated after they have been dismissed.[5]
However, the circumstances in which re-instatement can occur do not currently include
a situation where proceedings are dismissed at the request of the applicant,
but there remain other interested parties who do not want the proceedings to
cease. The Explanatory Memorandum gives the example of matters with more than
one non‑governmental party, such as child support reviews. Under the
changes made by the Bill, if the applicant withdraws the application, another
party may seek to have it reinstated (item 4).
The AAT Act now includes a scheme for determining the
manner in which documents and things are to be provided to the Tribunal and how
documents are to be provided to people.[6]
At the moment the method is set out in the regulations and, only if there are
no regulations on the subject, in a direction given by the President under
section 18B, which concerns arrangements for the business of the Tribunal.
Presidential directions are easier to change than regulations, which are
disallowable by Parliament. The Bill provides that the manner of providing
documents and things may be set out in either the regulations or the directions
(item 5).
Amendments to the Bankruptcy Act
1966
The Bankruptcy Act deals with the administrative and
judicial processes involved when people cannot pay their debts and give up their assets and control of their finances, either by
agreement or court order, in exchange for protection from legal action by their
creditors.[7]
Under the Bankruptcy Act, a bankrupt may have to
provide a statement of their personal and financial affairs to the Official
Receiver and to the trustee.[8]
If the approved form for a statement of affairs says that the information in it
is confidential then the Official Receiver must not disclose it.[9]
There is no express exception where another law requires disclosure. The Bill
expressly provides that exception (items 8 and 9). Examples of
laws requiring disclosure are statutory information-gathering powers possessed
by some government agencies.
Minor changes are made by the Bill to require a bankrupt to
lodge certain requests with the Inspector-General rather than the Official Receiver
(items 10, 14 and 21). Minor amendments consequent upon this
change are made (items 11, 12, 15, 16, 22 and 23). Minor changes
are made to remove the requirement for the Inspector‑General
in Bankruptcy to notify the Official Receiver of certain decisions (items 13,
17 and 18).
A minor amendment is made to impose time
limits for applications to the court to review certain decisions of the
Official Receiver (items 19 and 20). It is proposed that the time limit for an
application to review be 60 days after notice of the decision has been given.
The Bill removes a reference to a repealed
provision in section 225 of the Bankruptcy Act (item 24).
Amendments to the Evidence Act 1995
The Bill makes trivial changes to the numbering of
provisions in the Evidence Act to align it with the numbering of the Evidence
Act 1995 (NSW) (items 26 to 33).[10]
Both Acts form part of the evolving national uniform evidence law. The
alignment in numbering is based on the Parliamentary Counsel’s Committee Protocol on Drafting National
Uniform Legislation recommendation that uniform numbering be used across
jurisdictions.[11]
The Bill moves the journalist privilege
provisions from Division 1A of Part 3.10 to new Division 1C of Part 3.10 of the
Commonwealth Evidence Act to make the numbering consistent with the NSW
Act. No substantive change is made.[12]
Amendments to the Federal Circuit
Court of Australia Act 1999
The Bill removes a reference in the
Federal Circuit Court of Australia Act 1999 (FCCA Act)[13] to an obsolete section of
the Family Law Act 1995[14]
(section 31 of the FCCA Act refers to section 19E of the Family Law
Act, which does not exist (item 36)).
The Bill also inserts provisions
concerning the exercise of power of arrest under the FCCA Act (items
37 and 38). These provide an arrester, who is authorised by the Act,
or a warrant issued under the Act or the Rules of Court, with the power to use
reasonable force to enter premises to execute an arrest warrant.
This amendment attracted the attention of
the Senate Standing Committee for the Scrutiny of Bills, which noted the
detailed explanation of the amendment in the explanatory memorandum and the
limitations and safeguards that are put in place. The committee drew ‘Senators’
attention to the provision, as it may be considered to trespass unduly on
personal rights and liberties, in breach of principle 1(a)(i) of the
committee’s terms of reference.’[15]
The provisions are identical to those in
section 55A of the Federal Court of Australia Act 1976, which was
inserted by the Federal Courts Legislation Amendment Act 2015.[16]
Of that amendment, the Shadow Attorney-General,
Mark Dreyfus, said in his second reading speech:
The Bill will
clarify the ability to use reasonable force in entering premises to execute an
arrest warrant, which is unclear under the legislation as it presently stands.[17]
This echoes the Explanatory Memorandum,
which explains that the Bill resolves uncertainty in the law.[18] It also points to the
limitations on the use of force, noting, amongst other matters, that it must be
reasonable in the circumstances.[19]
Amendments to the Federal Court of
Australia Act 1976
The Bill makes minor changes to the pre-trial process for
indictable offences in the Federal Court of Australia Act.[20]
It deals with the time at which a prosecutor may amend or replace an indictment
(items 40 and 41). In short, if an indictment is to be amended or
replaced as of right, it must be done sooner under the proposed law, giving the
accused and the Court more notice of the change. This benefits the accused.
The current position is that the prosecutor may amend or
replace an indictment at any time before the start of a trial. During the trial
the indictment may be amended or replaced only with the leave of the Court. The
new position will be that the prosecutor may amend or replace an indictment in
these circumstances:
-
When no date has been set for trial, the indictment may be amended
or replaced at any time.
-
When a date has been set, the indictment may be amended or
replaced more than 90 days before that date.
-
When a date has been set, and there are fewer than 90 days until
the start date, or if the trial has started, the indictment may be amended or
replaced only with the leave of the Court.
The Bill makes another minor change to the pre-trial process
for indictable offences (item 42). The current position is that the
Federal Court must order a pre-trial hearing as soon as possible after
the indictment is filed and the accused must attend court and enter a plea. The
new rule is that the Court may give notice in writing of a pre-trial
hearing and if it does, the accused must attend and enter a plea. This could benefit
some accused to the extent that it reduces unnecessary appearances.
The Bill makes a minor change to the information that must
be given by the prosecutor to the accused prior to the trial (item 43).
Currently, the notice of the prosecution’s case must include a copy of a signed
statement by the witness that sets out the evidence the witness is to give at
the trial or a written summary of the evidence of the witness. Under the
Bill, a written summary may be given only if the prosecutor cannot obtain a
statement signed by the witness. The Explanatory Memorandum comments that ‘[t]his
will ensure that whenever possible, the defence will be provided with the most
accurate account of the witness statements for witnesses the prosecution
proposes to call at trial.’[21]
The Bill makes a minor change to the way a jury roll is
prepared (item 44). Currently, the Sherriff is required to prepare a
jury roll for a jury district (subsection 23DG(1)) but there is no guidance
about how this is to be done. The Bill requires that the jury roll be prepared
using electoral rolls.
Minor amendments are made about the empanelment and
discharge of juries and about jurors being excused (items 45, 47, 48, 49).
A redundant provision, subsection 23EL(1) is removed (item
46).
The Bill removes the ability of a judge in criminal appeal
proceedings to order that someone be joined or removed as a party (item 51).
The Explanatory Memorandum says that these are ‘orders of a kind which are not
appropriate in criminal appeal proceedings because in a criminal appeal there
is no basis for a court to join additional parties.’[22]
The Bill makes a substantive change to the existing
principle in section 30AL that time spent on bail pending the determination of
an appeal should not count towards the service of a sentence (item 52).
Currently that rule applies only to indictable offences. The Bill extends the
rule to summary offences. This change will not benefit an accused who is
convicted.
The Bill clarifies that the Court may remit a matter for
further hearing to a magistrate and not just to a Judge as currently provided (item
53). The rule applies in cases of appeals from summary prosecution under
section 30BF.
Amendments to the International
Arbitration Act 1974
The Bill simplifies provisions in the International
Arbitration Act 1974 for enforcement of foreign arbitral awards (items 56,
57 and 58).[23]
The Explanatory Memorandum explains:
Part II of the Act implements the 1958 New York Convention
on the Recognition and Enforcement of Foreign Arbitral Awards (the
‘Convention’).
Section 7 of Part II regulates the enforcement of foreign arbitration
agreements and section 8 of Part II regulates the enforcement of arbitral
awards.
...
Subsection 8(4) of the International Arbitration Act
provides that foreign arbitral awards may not be enforced where the award was
made in a country which is not a party to ... the Convention at the time
enforcement is sought. This is the case unless the party seeking enforcement is
at that time domiciled or ordinarily resides in Australia or another country
which is a party to the Convention.
These items will remove this restriction and allow
enforcement of foreign awards in Australia regardless of the country in which
they are made. As such, they will improve compliance with the Convention by
broadening the scope of application of the enforcement provisions under the
Act.[24]
The Bill also improves the rights of parties to resist
enforcement in Australia of a foreign award (item 59). The Explanatory
Memorandum says:
Paragraph 8(5)(a) of the International Arbitration Act
allows a party to an arbitration agreement to apply to a court to resist
enforcement of an award only on the basis of the incapacity of the award
debtor. An award debtor cannot apply to resist enforcement on the basis of the
incapacity of another party to the arbitration agreement.
This item will allow a party to rely on the incapacity of any
party to the arbitration agreement in a plea for refusal of enforcement, rather
than the legal incapacity of the award debtor only. This item will make
enforcement proceedings fairer for all parties and improve the Act’s
consistency with the Convention.[25]
The Bill improves the confidentiality of international
arbitration proceedings conducted in Australia (items 60 to 63). Currently,
in some circumstances, the parties must specify that proceedings are to be
confidential. Those cases will now be confidential by default.
Consequential amendments to other
Acts
The Bill makes consequential amendments to the Acts listed
below. The Explanatory Memorandum sufficiently explains the basis of these
changes.
Consequential amendments are made to these Acts:
- A
New Tax System (Family Assistance) (Administration) Act 1999
- Child
Support (Registration and Collection) Act 1988
- Family
Law Act 1975
- Freedom
of Information Act 1982
- James
Hardie (Investigations and Proceedings) Act 2004
- Paid
Parental Leave Act 2010
- Proceeds
of Crime Act 2002
- Public
Interest Disclosure Act 2013
- Social
Security (Administration) Act 1999 and
- Student
Assistance Act 1973.
House of Representatives Selection
Committee
At the time of writing, the Committee has not considered the
Bill.[26]
Senate Standing Committee on
Selection of Bills
In Report No. 10 of 2015, of 20 August 2015, the Committee
resolved to recommend that the Bill not be referred to a committee for inquiry.[27]
Senate Standing Committee for the
Scrutiny of Bills
The remarks of the Senate Standing Committee for the
Scrutiny of Bills have been recorded in the section dealing with amendments to
the Federal Circuit Court of Australia Act 1999 on page 4 of this
digest.[28]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights considers
that the Bill does not require additional comment as it promotes human rights
and/or contains justifiable limitations on human rights.[29]
The Bill has not been the subject of public comment by the
Labor Party, the Australian Greens or other members or Senators.
The Bill has not been the subject of public comment.
The Explanatory Memorandum says the Bill has no financial
impact.[30]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[31]
Both the Senate Standing Committee for the Scrutiny of
Bills and the Parliamentary Joint Committee on Human Rights have considered the
human rights aspects of the Bill. Their remarks are recorded above.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Administrative Appeals
Tribunal Act 1975, accessed 4 September 2015.
[2]. AAT
Act, section 29AC.
[3]. AAT
Act, subsection 35(4).
[4]. AAT
Act, section 39A.
[5]. AAT
Act, subsections 42A(8) and (8A).
[6]. AAT
Act, section 68.
[7]. Bankruptcy Act 1966,
accessed 4 September 2015.
[8]. Bankruptcy
Act, sections 54 and 55.
[9]. Bankruptcy
Act, subsections 54(6) and 55(11).
[10]. Evidence
Act 1995 (NSW), accessed 28 August 2015.
[11]. Parliamentary
Counsel’s Committee, Protocol
on drafting national uniform legislation, 4th edition, 10 July
2014, p. 5, accessed 28 August 2015.
[12]. Evidence Act 1995
(Cth), accessed 4 September 2015.
[13]. Federal Circuit Court of
Australia Act 1999, accessed 4 September 2015.
[14]. Family Law Act 1975,
accessed 4 September 2015.
[15]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 7, 2015, The Senate, 12 August 2015, p. 26, accessed
28 August 2015.
[16]. Federal Court of
Australia Act 1976, section 55A and Federal
Courts Legislation Amendment Act 2015, item 10 of Schedule 1,
both accessed 4 September 2015.
[17]. M
Dreyfus, ‘Second
reading speech: Federal Court Amendment Bill 2014’, House of
Representatives, Debates, 2 December 2014, p. 13945.
[18]. Explanatory
Memorandum, Civil Law and Justice (Omnibus Amendments) Bill 2015,
paragraphs 26-27, accessed 4 September 2015
[19]. Ibid.,
paragraphs 29-32.
[20]. Federal Court of
Australia Act 1976, accessed 4 September 2015.
[21]. Ibid.,
p. 23.
[22]. ibid.,
p. 25.
[23]. International
Arbitration Act 1974, accessed 4 September 2015.
[24]. Explanatory
Memorandum, op. cit., p. 27.
[25]. Ibid.
[26]. Australian
Parliament, ‘House of Representatives
Selection Committee’, Australian Parliament website, accessed 28 August
2015.
[27]. Senate
Standing Committee on Selection of Bills, Report,
10, 2015, The Senate, 20 August 2015, accessed 28 August 2015.
[28]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 7, 2015, The Senate, 12 August 2015, p. 25, accessed
28 August 2015.
[29]. Parliamentary Joint
Committee on Human Rights, Twenty-fifth
report of the 44th Parliament, August 2015, p. 2, accessed
28 August 2015.
[30]. Explanatory
Memorandum, op. cit., p. 3.
[31]. The
Statement of Compatibility with Human Rights can be found at pages 4-10 of the
Explanatory Memorandum to the Bill.
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