Chapter 1Introduction

1.1On 30 November 2023, the Senate referred the Attorney-General’s Portfolio Miscellaneous Measures Bill 2023 (the Bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 1February2024.[1]

1.2The referral followed a recommendation of the Senate Standing Committee for the Selection of Bills. Appendix1 to that committee’s report indicated the reason for referral was to ‘carefully scrutinise this legislation’ and to seek evidence from a range of stakeholders.[2]

Conduct of the inquiry

1.3In accordance with its usual practice, the committee advertised the inquiry on its website and invited organisations and individuals to submit by 28December2023.

1.4The committee received eight public submissions, which are listed at Appendix1 and are available on the committee’s website.

1.5The committee agreed to conduct the inquiry on the papers, with reference to the Bill, information contained in the Explanatory Memorandum (EM) and the submissions received from organisations.

Structure of the report

1.6This report comprises two chapters as follows:

Chapter 1 provides an overview of the Bill, including the purpose and key provisions of the Bill; and

Chapter 2 examines the key issues raised by submitters. It also sets out the committee’s views and recommendations in relation to the Bill.

Acknowledgements

1.7The committee thanks the organisations who made written submissions to this inquiry.

Purpose of the Bill

1.8The Bill is an omnibus bill that would amend 10 Commonwealth Acts, covering a range of legislative domains.[3]

1.9The Bill would make amendments to the following legislation:

Australian Securities and Investments Commission Act 2001 (ASIC Act);

Corporations Act 2001 (Corporations Act);

Family Law Act 1975;

Federal Circuit and Family Court of Australia Act 2021 (FCFCOA Act);

Federal Court of Australia Act 1976 (Federal Court Act);

Judiciary Act 1903 (Judiciary Act);

Marriage Act 1961 (Marriage Act);

National Consumer Credit Protection Act 2009 (NCCP Act);

Native Title Act 1993 (Native Title Act); and

Superannuation Industry (Supervision) Act 1993 (SIS Act).[4]

1.10In the second reading speech for the Bill, the Attorney-General, the Hon Mark Dreyfus KC MP, outlined the purpose of the Bill by stating:

The Attorney-General’s Portfolio Miscellaneous Measures Bill 2023 will make a range of important amendments to update, clarify and improve the intended operation of legislation administered by the Attorney-General.[5]

Key provisions

1.11The Bill consists of four schedules which would address different legislative areas. As below, these include:

Schedule 1; Federal Court criminal jurisdiction

Schedule 2; Federal Court juries

Schedule 3; Amendment of the Marriage Act 1961

Schedule 4; Other amendments

1.12This chapter provides a high level overview of the key changes that would be enacted by these Schedules, while Chapter Two addresses key issues raised by submitters relevant to each Schedule.

Schedule 1 – Federal Court Criminal Jurisdiction

1.13The EM for the Bill outlines that the purpose of Schedule 1 is to:

… confer jurisdiction on the Federal Court of Australia (Federal Court) to hear and determine a range of summary and indictable offences relating to conduct within the regulatory remit of the Australian Securities and Investments Commission (ASIC).[6]

1.14The Attorney-General’s second reading speech on the Bill also notes that the Legislative and Governance Forum on Corporations was consulted in relation to Schedule 1 of the Bill; as required by the Corporations Agreement 2002 and the National Credit Law Agreement 2009.[7]

Part 1

1.15Part 1 of Schedule 1 would amend the ASIC Act,[8] Corporations Act,[9] JudiciaryAct,[10] NCCP Act[11] and SIS Act.[12] These proposed amendments expand the jurisdiction of the Federal Court to hear and determine summary and indictable offences within the Acts that are administered by the AustralianSecurities and Investments Commission (ASIC).[13]

1.16Of particular note, proposed section 67G of the Judiciary Act outlines the specific jurisdictions of the Federal Court against provisions of the CriminalCode that could be captured under ASIC’s remit. These include:

bribery of foreign public officials;

forgery and related offences;

identity crime;

money laundering;

computer offences;

financial information offences;

and accounting records.[14]

1.17The EM clarifies in relation to subsection 67G(4) that it will ‘confer jurisdiction on the Federal Court to hear and determine prosecutions for indictable offences against the Criminal Code which are likely to be relied upon in prosecutions arising from investigations undertaken by ASIC.’[15]

1.18The EM to the Bill notes the Federal Court has ‘considerable expertise in civil commercial and corporate matters and is well positioned to deal with matters under this corporate criminal jurisdiction.’[16]

1.19In relation to the proposed expansion of the jurisdiction of the Federal Court, the EM outlines the interaction with State and Territory courts in relation to these offences:

The new jurisdiction of the Federal Court will operate concurrently with the existing jurisdiction of State and Territory courts in relation to these offences. The Bill makes no changes to the jurisdiction of State and Territory courts. Matters will be able to be transferred between courts to ensure proceedings can be heard across the Australian court system and in the most appropriate forum.[17]

Part 2

1.20Part 2 of Schedule 1 would amend the Corporations Act,[18] Federal Court Act,[19] Judiciary Act[20] and the NCCP Act.[21] The proposed amendments give effect to the conferral of criminal jurisdiction on the Federal Court under Part 1 of the Bill by detailing the proceedings for related summary offences under each of these Acts.

1.21The most substantial proposed changes in Part 2 of Schedule 1 relate to the Federal Court Act and the Judiciary Act.

1.22The proposed amendments to the Federal Court Act outline the practice and procedure applicable to proceedings for related summary offences, evidence in such proceedings and processes for appeal for a related summary offence.[22]

1.23Further, proposed new section 32AE outlines a process for discretionary transfer of certain corporate crime offences between the Federal Court and a court of a State or Territory.[23] This section also defines a corporate crime offence.[24] Of the proposed new section 32AE, the EM outlines the purpose is to:

… enable proceedings to be moved across the Australian court system to the most appropriate forum and venue, having regard to the interests of justice, to support the effective and efficient administration of justice.[25]

1.24The proposed amendments to the Judiciary Act include detailed descriptions of how the changes to the Federal Court Act would interact with State and Territory laws in relation to proceedings for related summary offences.[26]

1.25The EM for the Bill describes the proposed changes outlined in Part 2 of Schedule 1 as ‘minor technical and procedural amendments’[27] that will ‘support the exercise of jurisdiction within the scope of part 1, by the Federal Court, and State and Territory courts’.[28]

1.26Further, the Attorney-General outlined the potential benefit associated with the proposed amendments in Schedule 1 of the Bill:

To support the efficient resolution of criminal proceedings, the bill will confer jurisdiction on the Federal Court to hear and determine summary offences which arise substantially from 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.[29]

Schedule 2 – Federal Court Juries

1.27Schedule 2 of the Bill puts forward proposed changes to the Federal Court Act to enable State and Territory jury officials to provide a jury panel to the FederalCourt.

1.28The proposed changes to the Federal Court Act include the formulation of two options for jury provision to the Federal Court by the Sheriff of the Court.[30] The Sheriff may provide a jury panel to the Court under the Act or can request a State or Territory jury official provide a jury panel to the court prepared under State or Territory laws.[31]

1.29Proposed subdivision DA to be included in the Federal Court Act outlines the following in relation to indictable primary proceedings where a jury is prepared by the Sheriff:

selection and preparation processes for a jury;[32]

investigation powers of the Sheriff to determine eligibility for jury service;[33]

qualification to serve as a juror;[34]

disqualification from serving on a jury (convictions, charges, detention orders etc);[35]

disqualification from serving on a jury (professional ineligibility);[36]

removing names from a jury list;[37]

jury summonses;[38] and

preparing the jury panel.[39]

1.30Similarly, the Bill outlines the proposed approach to jury panels prepared under state or territory laws to be provided to the Federal Court. Under proposed subdivision DB, ‘the Sheriff may request the Supreme Court of a State or Territory to provide a jury panel to the court for a trial in that State or Territory’.[40]

1.31The subdivision states that the laws in force in the State or Territory concerned will generally apply in preparation of the jury panel and that the Court must pay the State or Territory a fee for provision of the jury panel (including a nil fee).[41]

1.32The subdivision provides detail related to:

provision of a jury panel by a State/Territory jury official, including process of request by the Sheriff of the Court;[42]

qualification to serve as a juror;[43]

application of State or Territory laws in preparation of a jury panel;[44]

disclosure of personal information by a Sheriff or State/Territory jury official;[45]

payments to a State or Territory;[46] and

arrangements with a State or Territory.[47]

1.33The Bill also includes proposed amendments related to the Sheriff’s power to excuse or discharge potential jurors[48] and details the process for empanelling the jury.[49]

1.34The EM for the Bill notes that these proposed amendments to the FederalCourtAct will ‘improve the efficiency of jury preparation processes for primary indictable proceedings in the Federal Court’.[50]

1.35Further, the Attorney-General in his second reading speech explained that consideration had been given to the maintenance of the relationship between the Supreme Courts of the states and territories and the Federal Court of Australia:

To respect the independence of states and territories, the consent of the relevant state or territory will be required before the sheriff can request a state or territory jury official to provide a jury panel.[51]

Schedule 3 – Amendment of the Marriage Act 1961

1.36The Bill seeks to make a series of amendments to the Marriage Act 1961. The EM explains that the amendments would:

make minor technical amendments to clarify and improve the operation of the Commonwealth Marriage Celebrants Program and provides greater accessibility for marrying couples.[52]

Changes to the Marriage Celebrants Program

1.37The Bill proposes a range of administrative amendments that would enhance efficiency of processes for the Marriage Celebrants Program.

1.38The Bill includes provision for the Registrar of Marriage Celebrants to delegate, in writing, certain powers to the new position of a Deputy Registrar of Marriage Celebrants,[53] which the Attorney-General notes would assist to process large volumes of applications to become a marriage celebrant.[54] The EM further explains:

This will improve the efficiency of services provided by the program to aspiring celebrants, as presently statutory decisions may only be made by the Registrar of Marriage Celebrants and this limits the volume of decisions which can be made.[55]

1.39The Bill further specifies the areas that could not be delegated to a DeputyRegistrar of Marriage Celebrants as below:

Source: Attorney-General’s Portfolio Miscellaneous Measures Bill 2023

1.40The Bill would expand timeframes for consideration of applications to become registered as a marriage celebrant, from three months to six months.[56] Currently, if a decision for an application for registration is not made in three months, it is deemed a refusal.[57] This provision would provide additional timing for applicants to provide the necessary information for an application and for the decision to be made.[58]

1.41The Bill would also establish a provision that the Registrar of Marriage Celebrants would be able to refund an application fee where an application was made by an individual without the appropriate qualifications.[59]

1.42The Bill would clarify that celebrants are required to be physically present at a marriage,[60] seeking to address the following concern:

The term presence is not defined in the Marriage Act and there is some uncertainty as to whether presence could be held to include an online presence.[61]

1.43The Bill outlines the identity requirements to be satisfied by parties to a marriage.[62] The Attorney-General explained the considerations related to identity requirements as follows:

The identity requirements to be provided to an authorised celebrant will be clarified by providing that a statutory declaration can be used to provide identity details if it is impracticable to obtain an official record of birth and the person does not have a current passport.[63]

1.44There are three categories of authorised celebrants in Australia:

Subdivision A; Ministers of Religion of recognised denominations;

Subdivision B; State and Territory Officers; and

Subdivision C; Commonwealth registered civil/religious celebrants[64]

1.45The Bill would amend the Marriage Act to clarify that marriage celebrants can only be registered in one subdivision at a time.[65] The EM explains that this is to:

… ensure celebrants and regulators have clear and unambiguous obligations, which will better support legal marriage, and remove risks, administrative complexity and costs associated with individual celebrants being authorised under multiple regulatory regimes. Commonwealth registered marriage celebrants will retain the choice to identify as religious marriage celebrants.[66]

Notice of Intended Marriage

1.46In Australia, couples who marry are required to provide a Notice of Intended Marriage (NOIM) to their authorised celebrant at least one month prior to the solemnisation of marriage.[67]

1.47The Bill proposes amendments to the NOIM process. During the COVID-19 pandemic, temporary measures were put in place that enabled authorised witnesses to witness the NOIM via audio link or video link rather than requiring witnessing to occur in person.[68] The most recent determination implementing this power expired as of 31 December 2023.[69] The provisions in this Bill would make the process for authorised witnesses to witness the NOIM via electronic means a permanent feature of the Marriage Act.[70]

1.48The Attorney-General outlined the intention of these proposed changes:

The amendments will improve accessibility by permanently allowing the option of virtual witnessing for notices of intended marriage. Marrying couples, particularly those in rural and regional areas, will greatly benefit from this change.[71]

1.49In addition to the proposed changes to the NOIM, the Bill would create an additional amendment to the Marriage Act that would require the authorised celebrant to meet in person separately with each party to the marriage prior to the solemnisation of the marriage.[72]

1.50The EM observes that the ‘purpose of the meeting is to ensure that each party is freely and voluntarily consenting to the marriage’.[73] Further, the EM describes this provision as an ‘additional safeguard, where the NOIM is remotely witnessed, or witnessed by an authorised person other than a celebrant’.[74] The Attorney-General describes this proposed amendment as a mechanism to ‘ensure the foundational requirement of consent is safeguarded’.[75]

Schedule 4 – Other Amendments

1.51Schedule 4 of the Bill makes amendments to a range of Acts related to different legislative domains.

Arbitration

1.52Part 1 of Schedule 4 of the Bill would amend the Family Law Act 1975 to make technical changes to the arbitration framework in the Act.[76]

1.53This change would:

… provide that applications for the determination of a question of law in arbitration, and review of an arbitral award, can be made to both divisions of the Federal Circuit and Family Court of Australia.[77]

1.54The Attorney-General observed that the amendments would:

… allow parties and arbitrators to make applications for review of an arbitral award or to determine a question of law to both divisions of the Federal Circuit and Family Court. These amendments remove the administrative burden on the Federal Circuit and Family Court arising from the current need to transfer these applications from division 2 to division 1 for determination.[78]

Repeal of Section 213A of the Native Title Act 1993

1.55Part 2 of Schedule 4 would amend the Native Title Act 1993 to abolish the NativeTitle Respondents Scheme (NTRS) through a repeal of Section 213A of the Act.[79]

1.56Under the NTRS, ‘funding for legal representation and disbursement costs was provided to some native title respondents, up to a cap of $10,000 per six-month period’.[80]

1.57The EM explains that the majority of the respondents under the Scheme are non-Indigenous people and entities, and the majority of funds under the Scheme have been granted to support non-Indigenous parties to native title matters.[81] The EM notes that primary recipients of funding under the Scheme were pastoralists, commercial fishers, miners and local government councils.[82]

1.58Abolition of the Scheme was an election commitment of the government and is estimated to save $6.4 million over four years from 2022 – 23.[83]

1.59In regard to the issue of funding, the EM specifies the operation of the proposed amendment of the Bill whereby current funding applications will not be considered:

Sub-item 10(2) will provide that if a person has made an application for the provision of financial assistance under section 213A of the Native Title Act before the commencement of this item, and the Attorney-General has not made a decision on the application before that time, the application is taken never to have been made and the Attorney-General is not required to consider outstanding applications for funding under section 213A of the Native Title Act.[84]

1.60In providing detail on the Bill, the Attorney-General noted:

Many significant questions of native title law have now been settled and the government considers that many current native title respondents, which are generally commercially viable or sound entities, would have the capacity to deal with native title matters as part of their ordinary business costs.[85]

Typographical corrections

1.61Part 3 of Schedule 4 of the Bill corrects typographical errors in the Federal Circuit and Family Court of Australia Act 2021 (FCFCOA Act) and in the Federal Court Act.[86]

1.62In the FCFCOA Act, the changes will correctly refer to regulations made under section 285 where appropriate through the Act.[87]

1.63In the Federal Court Act, the changes will correct cross references to the Competition and Consumer Act2010.[88]

Consideration by other parliamentary committees

1.64When examining a Bill, the committee takes into account any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (the Scrutiny of Bills Committee) and the Parliamentary Joint Committee on Human Rights (PJCHR).

1.65The Scrutiny of Bills Committee assesses legislative proposals against a set of accountability standards that focus on the effect of proposed legislation on individual rights, liberties and obligations, the rule of law and on parliamentary scrutiny. At the time of writing of this report, the Scrutiny of Bills Committee had not undertaken an assessment of the Bill.

1.66The PJCHR examines bills and legislative instruments for compatibility with human rights and reports its findings to both Houses of Parliament. Following its examination of the Bill, the PJCHR had no comment on the Bill.[89]

Footnotes

[1]Journals of the Senate, No. 90, 30 November 2023, p. 2522.

[2]Senate Standing Committee for the Selection of Bills, Report No. 15 of 2023, pp. 3 – 5.

[3]Attorney-General’s Portfolio Miscellaneous Measures Bill 2023, Explanatory Memorandum to the Attorney-General’s Portfolio Miscellaneous Measures Bill 2023 (EM), p. 3.

[4]EM, p. 3.

[5]Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 15 November 2023, p. 13.

[6]EM, p. 3.

[7]Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 15 November 2023, p. 13.

[8]Item 3 in Part 1 of Schedule 1 of the Bill; proposed section 243A of the ASIC Act.

[9]Item 4 in Part 1 of Schedule 1 of the Bill; proposed section 1338AA of the Corporations Act. For further descriptions of the indictable offences against the Corporations Act, see the EM, paragraph 23, p 21.

[10]Item 8 in Part 1 of Schedule 1 of the Bill; proposed section 67G of the Judiciary Act.

[11]Item 9 in Part 1 of Schedule 1 of the Bill; proposed section 203A of the National Consumer Credit Protection Act. For further descriptions of the indictable offences against the NCCP Act, see the EM, paragraph 45, pp. 24 – 25.

[12]Items 11 and 12 in Part 1 of Schedule 1 of the Bill; proposed sections 201A and 324B of the Superannuation Industry (Supervision) Act. For further descriptions of the indictable offences against the SIS Act, see the EM, paragraph 53, p. 26.

[13]EM, p. 4.

[14]Item 8 in Part 1 of Schedule 1 of the Bill; proposed section 67G of the Judiciary Act.

[15]EM, p. 24.

[16]EM, p. 4.

[17]EM, p. 4.

[18]Item 13 in Part 2 of Schedule 1 of the Bill; proposed addition to subsection 1338A(3) of the Corporations Act.

[19]Item 16 in Part 2 of Schedule 1 of the Bill; proposed sections 23K and 23L. Item 17 in Part 2 of Schedule 1 of the Bill; proposed subsection 30AA(2A). Item 19 in Part 2 of Schedule 1 of the Bill; proposed section 32AE of the Federal Court of Australia Act.

[20]Item 23 in Part 2 of Schedule 1 of the Bill; proposed section 68D of the Judiciary Act.

[21]Item 25 in Part 2 of Schedule 1 of the Bill; proposed addition to subsection 203(2) of the NationalConsumer Credit Protection Act.

[22]Item 16 in Part 2 of Schedule 1 of the Bill; proposed sections 23K, 23L and subsection 30AA(2A) of the Federal Court of Australia Act.

[23]Item 19 in Part 2 of Schedule 1 of the Bill; proposed section 32AE of the Federal Court of Australia Act.

[24]Item 19 in Part 2 of Schedule 1 of the Bill; proposed section 32AE of the Federal Court of Australia Act.

[25]EM, pp. 29 – 30.

[26]Item 23 in Part 2 of Schedule 1 of the Bill; proposed section 68D of the Judiciary Act.

[27]EM, p. 4.

[28]EM, p. 4.

[29]Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 15 November 2023, p. 13.

[30]Item 6 in Schedule 2 of the Bill.

[31]Item 6 in Schedule 2 of the Bill; proposed section 23DA.

[32]Item 6 in Part 2 of the Bill, proposed sections 23 DH and 23DJ.

[33]Item 6 in Part 2 of the Bill, proposed section 23DK.

[34]Item 6 in Part 2 of the Bill, proposed section 23DL.

[35]Item 6 in Part 2 of the Bill, proposed section 23DM. Further information provided in the EM, pp.42–43.

[36]Item 6 in Part 2 of the Bill, proposed section 23DN. Further information provided in the EM, pp.43–44.

[37]Item 6 in Part 2 of the Bill, proposed section 23DP.

[38]Item 6 in Part 2 of the Bill, proposed section 23DQ.

[39]Item 6 in Part 2 of the Bill, proposed section 23DR.

[40]Item 6 in Part 2 of the Bill, proposed section 23DS.

[41]Item 6 in Part 2 of the Bill, proposed section 23DS. See also proposed section 23DY.

[42]Item 6 in Part 2 of the Bill, proposed section 23DU.

[43]Item 6 in Part 2 of the Bill, proposed section 23DV.

[44]Item 6 in Part 2 of the Bill, proposed section 23DW.

[45]Item 6 in Part 2 of the Bill, proposed section 23DX.

[46]Item 6 in Part 2 of the Bill, proposed section 23DY.

[47]Item 6 in Part 2 of the Bill, proposed section 23DZ.

[48]Item 6 in Part 2 of the Bill, proposed section 23DZD and 23DZE.

[49]Item 6 in Part 2 of the Bill, proposed section 23DZJ.

[50]EM, p. 4.

[51]Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 15 November 2023, p. 14. For further detail on this issue, see the EM, paragraph 184, p. 46 and the Attorney-General’s Department, Submission 4, p. 2.

[52]EM, p. 5.

[53]Item 2 in Part 1 of Schedule 3, proposed amended section 39A of the Marriage Act.

[54]Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 15 November 2023, p. 14.

[55]EM, p. 7.

[56]Item 5 in Part 2 of Schedule 3, proposed amended subsection 34(5) to the Marriage Act.

[57]EM, p. 64.

[58]EM, p. 64.

[59]Item 13 in Part 3 of Schedule 3, proposed subsection 39D(1E) of the Marriage Act.

[60]Part 4 of Schedule 3 of the Bill.

[61]EM, pp. 65 – 66.

[62]Part 5 of Schedule 3 of the Bill.

[63]Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 15 November 2023, p. 14.

[64]EM, p. 6.

[65]Part 7 of Schedule 3 of the Bill.

[66]EM, p. 6.

[67]EM, p. 5.

[68]EM, p. 5.

[69]EM, p. 5. The full title of the instrument is the Coronavirus Economic Response Package (Modifications – Statutory Declarations and Notices of Intention to Marry) Determination 2021.

[70]Part 6 of Schedule 3 of the Bill.

[71]Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 15 November 2023, p. 14.

[72]Part 6 of Schedule 3, proposed section 42B of the Marriage Act.

[73]EM, p. 6.

[74]EM, p. 6.

[75]Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 15 November 2023, p. 14.

[76]Part 1 of Schedule 4 of the Bill.

[77]EM, p. 8.

[78]Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 15 November 2023, p. 14.

[79]Part 2 of Schedule 4 of the Bill.

[80]Attorney-General’s Department, Submission 4, p. 4.

[81]EM, p. 16.

[82]EM, p. 15.

[83]Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 15 November 2023, p. 14.

[84]EM, p. 75.

[85]Hon Mark Dreyfus KC MP, Attorney-General, House of Representatives Hansard, 15 November 2023, p. 14.

[86]Part 3 of Schedule 4 of the Bill.

[87]EM, p. 8.

[88]EM, p. 8.

[89]The Parliamentary Joint Committee on Human Rights, Report 13 of 2023, November 2023, p. 1.