Senate

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Michaelia Cash)

Notes on clauses

List of abbreviations

A Bill for an Act to amend the law relating to courts and tribunals, and for related purposes

Preliminary

Item 1 - Short Title

1. This item provides for the short title of the Act to be the Courts and Tribunals Legislation Amendment (2021 Measures No. 1) Act 2021 (the Act).

Item 2 - Commencement

2. This item provides for the commencement of each provision in the Act, as set out in the table. Sub item 2(1) provides that each provision of the Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table, and that any other statement in column 2 has effect according to its terms.

3. Item 1 of the table provides that sections 1 to 3 (and anything else not covered by the table) will commence the day the Act receives Royal Assent.

4. Item 2 of the table provides that Schedule 1, Part 1 will commence on a day to be fixed by Proclamation or within 6 months from the day that the Act receives Royal Assent.

5. Item 3 of the table provides that Schedule 1, Parts 2 to 15, commences the day after the Act receives Royal Assent.

6. Item 4 of the table provides that Schedule 2, Part 1 commences the day after the Act receives Royal Assent.

7. Item 5 of the table provides that Schedule 2, Part 2 commences at the same time as the provisions covered by table item 4. However, the provisions do not commence at all if the Federal Circuit and Family Court of Australia Act 2021 commences after the commencement of the provisions covered by table item 4.

8. Item 6 of the table provides that Schedule 2, Part 3, Division 1 commences at the same time as the provisions covered by table item 4. However, the provisions do not commence at all if the Federal Circuit and Family Court of Australia Act 2021 commences before the commencement of the provisions covered by table item 4.

9. Item 7 of the table provides that Schedule 2, Part 3, Division 2 commences immediately after the commencement of the Federal Circuit and Family Court of Australia Act 2021. However, the provisions do not commence at all if the Federal Circuit and Family Court of Australia Act 2021 commences before the commencement of the provisions covered by table item 4.

10. Item 8 of the table provides that Schedule 3 commences the day after the Act receives Royal Assent.

11. The note to the table provides that the table relates only to the provisions of the Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

12. Sub item 2(2) provides that any information in column 3 of the table is not part of the Act and may be amended, in any published version of the Act.

Item 3 - Schedules

13. This item provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1 - Main Amendments

Part 1 - Powers to require giving of information or evidence or production of documents

14. In all divisions of the AAT, the AAT has powers to require parties and other persons to provide information or documents to the AAT. These include powers to require a person to give evidence and/or produce documents for the purposes of a review. This power is set out in subsection 40A(1) of the AAT Act for all divisions except the Migration and Refugee Division and the Social Services and Child Support Division (SSCSD) where the equivalent powers exist in legislation outside of the AAT Act.

15. The intention of Part 1 is to standardise across divisions other than the Migration and Refugee Division the use of a single set of powers set out in the AAT Act to require parties to provide information or to otherwise require persons to give evidence or produce documents. Part 1 repeals notes in the AAT Act which specify that the summons powers in the Act do not apply to the SSCSD, amend legislation in the Social Services portfolio which provide jurisdiction to the AAT and sets out certain information gathering powers.

Administrative Appeals Tribunal Act 1975

Item 1 - Subsection 40A(1) (note)

16. Subsection 40A(1) provides that the President or an authorised member or officer of the AAT may summon a person to appear before the AAT to give evidence or to produce any document or other thing specified in the summons. The note to subsection 40A(1) provides that this subsection does not apply in relation to proceedings in the SSCSD. Item 1 repeals the note in subsection 40A(1) as that subsection will now apply to the SSCSD.

Item 2 - Subsection 40B(1) (note)

17. Subsection 40B(1) provides that the President or an authorised member or officer of the AAT may give a party to a proceeding leave to inspect a document or thing produced under a summons. The note to subsection 40B(1) provides that this subsection does not apply in relation to proceedings in the SSCSD. Item 2 repeals the note in subsection 40B(1) as that subsection will now apply to the SSCSD.

A New Tax System (Family Assistance) (Administration) Act 1999 (Family Assistance Administration Act)

Item 3 - Sections 117 and 118

18. This item repeals both section 117 and section 118 of the Family Assistance Administration Act.

19. Section 117 of the Family Assistance Administration Act provides that section 40A of the AAT Act does not apply to a first review by the AAT of a decision under the Family Assistance Administration Act. Section 117 will be repealed so section 40A can also apply to an AAT first review conducted in the SSCSD.

20. Section 118 of the Family Assistance Administration Act provides for the provision of further information or a document by the Secretary of the Department when requested to do so by the SSCSD. Section 118 of the Family Assistance Administration Act is no longer required as the SSCSD can rely on the power in section 33 of the AAT Act to direct the Secretary of the Department to provide further information or a document as required.

Item 4 - Subsection 119(1)

21. This item repeals subsection 119(1) of the Family Assistance Administration Act and substitutes a new subsection. The effect of the amendment is to repeal paragraph 119(1)(b) which provides that the AAT can require a person to produce to the AAT a document that is relevant to an AAT first review. This provision is no longer required as section 40A of the AAT Act will apply to an AAT first review. The substituted subsection 119(1) will continue to permit the SSCSD to require a person, by written notice, to provide specified information if the AAT reasonably believes that the person has information that is relevant to an AAT first review.

Child Support (Registration and Collection) Act 1988 (Child Support Act)

Item 5 - Sections 95F and 95G

22. This item repeals both section 95F and section 95G of the Child Support Act. Section 95F of the Child Support Act provides that section 40A of the AAT Act does not apply to a first review by the AAT of a decision under the Child Support Act. Section 95F will be repealed so section 40A can also apply to an AAT first review conducted in the SSCSD.

23. Section 95G of the Child Support Act provides for the provision of further information or a document by the Child Support Registrar when requested to do so by the SSCSD. Section 95G of the Child Support Act is no longer required as the SSCSD can rely on the power in section 33 of the AAT Act to direct the Registrar to provide further information or a document as required.

Item 6 - Subsection 95H(1)

24. This item repeals subsection 95H(1) of the Child Support Act and substitutes a new subsection. The effect of the amendment is to repeal paragraphs 95H(1)(b) and (c) which provide that the AAT can require a person to produce to the AAT a document that is relevant to an AAT first review or to attend before the AAT and answer questions. These provisions are no longer required as section 40A of the AAT Act will apply to an AAT first review. The substituted subsection 95H(1) will continue to permit the SSCSD to require a person, by written notice, to provide specified information if the AAT reasonably believes that the person has information that is relevant to an AAT first review.

Paid Parental Leave Act 2010

Item 7 - Sections 228 and 229

25. This item repeals both section 228 and section 229 of the Paid Parental Leave Act 2010.

26. Section 228 of the Paid Parental Leave Act 2010 provides that section 40A of the AAT Act does not apply to a first review by the AAT of a decision under the Paid Parental Leave Act 2010. Section 228 will be repealed so section 40A can also apply to an AAT first review conducted in the SSCSD.

27. Section 229 of the Paid Parental Leave Act 2010 provides for the provision of further information or a document by the Secretary of the Department when requested to do so by the SSCSD. Section 229 of the Paid Parental Leave Act 2010 is no longer required as the SSCSD can rely on power in section 33 of the AAT Act to direct the Secretary of the Department to provide further information or a document as required.

Item 8 - Subsection 230(1)

28. This item repeals subsection 230(1) of the Paid Parental Leave Act 2010 and substitutes a new subsection. The effect of the amendment is to repeal paragraphs 230(1)(b) and (c) which provide that the AAT can require a person to produce to the AAT a document that is relevant to an AAT first review or to attend before the AAT and answer questions. These provisions are no longer required as section 40A of the AAT Act will apply to an AAT first review. The substituted subsection 230(1) will continue to permit the SSCSD to require a person, by written notice, to provide specified information if the AAT reasonably believes that the person has information that is relevant to an AAT first review.

Social Security (Administration) Act 1999

Item 9 - Section 147 (table item 3)

29. This item repeals table item 3 in section 147 of the Social Security (Administration) Act 1999. Table item 3 of section 147 of the Social Security (Administration) Act 1999 provides that section 40A of the AAT Act does not apply to a first review of a decision under the Social Security (Administration) Act 1999. Table item 3 of section 147 will be repealed so section 40A can also apply to an AAT first review conducted in the SSCSD.

Item 10 - Section 165

30. This item repeals section 165 of the Social Security (Administration) Act 1999. Section 165 provides for the provision of further information or a document by the Secretary of the Department when requested to do so by the AAT. Section 165 of the Social Security (Administration) Act 1999 is no longer required as the SSCSD can rely on the power in section 33 of the AAT Act to direct the Secretary of the Department to provide further information or a document as required.

Item 11 - Subsection 165A (heading)

31. This item repeals the heading of section 165A of the Social Security (Administration) Act 1999 and substitutes it with 'The AAT's power to obtain information for AAT first review'. Item 11 changes the heading to reflect the changes being made to section 165A.

Item 12 - Subsection 165A(1)

32. This item repeals subsection 165A(1) of the Social Security (Administration) Act 1999 and substitutes a new subsection. The effect of the amendment is to repeal paragraph 165A(1)(b) which provides that the AAT can require a person to produce to the AAT a document that is relevant to an AAT first review. This provision is no longer required as section 40A of the AAT Act will apply to an AAT first review. The substituted subsection 165A(1) will continue to permit the SSCSD to require a person, by written notice, to provide specified information if the AAT reasonably believes that the person has information that is relevant to an AAT first review.

Item 13 - Subsection 165A(3) (note)

33. This item repeals the note at subsection 165A(3) of the Social Security (Administration) Act 1999. The note in this subsection refers to the item 3 which was in the table at section 147 which as part of this Act will be repealed.

Item 14 - Saving provisions

34. This item provides savings provisions whereby notices given for the provision of information under the below listed sections continue to apply on and after the commencement of the new provisions contained in this Act as long as those notices were issued before the commencement of the provisions. This will provide certainty regarding the effect of requests made and notices issued prior to the commencement of this Part.

a.

Sections 118 and 119 of the Family Assistance Administration Act

b.

Sections 95G and 95H of the Child Support Act

c.

Sections 229 and 230 of the Paid Parental Leave Act 2010, and

d.

Sections 165 and 165A of the Social Security (Administration) Act 1999.

Part 2 - Procedural fairness

AAT Act

35. This Part amends the AAT Act to clarify that an agency party's consent is not required for the AAT to be able to determine a review on the papers in the SSCSD (s34J) and harmonises the right of a non-agency party in the SSCSD to be given a reasonable opportunity to present their case (s39).

Circumstances in which a hearing may be dispensed with

Item 15 - Section 34J

36. Item 15 is a structural amendment to provide for two subsections in section 34J of the AAT Act, the first subsection retaining the original section with the addition of a new subsection.

Item 16 - At the end of section 34J

37. Section 34J of the AAT Act provides that the AAT can review a decision by considering the documents or other material before the AAT if it appears to the AAT that the issues for determination on the review can be adequately determined in the absence of the parties and the parties consent to the review being determined without a hearing. Section 34J is being amended to add new subsection (2) to section 34J which specifies that the consent of the agency party in an SSCSD proceeding is not required before the AAT can determine a review 'on the papers'. The agency party does not generally participate in a hearing in a proceeding in the SSCSD, therefore it is not necessary to seek the consent of the agency party in order to determine the review without holding a hearing.

Obligation to give parties a reasonable opportunity to present their case

38. Section 39(1) of the AAT Act provides, subject to certain other provisions, that the AAT must ensure every party to a proceeding is given a reasonable opportunity to present their case and, in particular, to inspect any documents to which the AAT proposes to have regard in reaching a decision and to make submissions in relation to those documents. Section 39 does not currently apply to a proceeding in the SSCSD, which is currently dealt with under section 39AA of the AAT Act. In particular, subsection 39AA(1) provides that non-agency parties may make oral and/or written submissions to the AAT.

39. The items below amend sections 39 and 39AA so that the AAT's procedural fairness obligations in relation to non-agency parties in the SSCSD are the same as for parties in other divisions to whom section 39 applies. The rights of an agency party in the SSCSD remain different as set out in section 39AA, reflecting that they do not generally participate in AAT first reviews. Applying subsection 39(1) to non-agency parties in the SSCSD ensures a consistent standard of fairness for most parties across the AAT's divisions.

Item 17 - Section 39 (heading)

40. This item repeals the existing section 39 heading and substitutes a new heading which reflects that section 39 generally applies except in the Security Division. This more accurately reflects the amendments below.

Item 18 - Paragraph 39(2)(b)

41. Subsection 39(2) provides that section 39 does not apply to certain proceedings in the Security Division (s39(2)(a)) or a proceeding in the SSCSD (s39(2)(b)).

42. Item 18 repeals paragraph 39(2)(b) and inserts a new paragraph which provides that section 39 does not apply to the agency party in the SSCSD. Therefore section 39 will apply to a non-agency party in the SSCSD.

Item 19 - At the end of subsection 39(2)

43. This item adds a note at the end of subsection 39(2) to clarify that the rights of an agency party to a proceeding in the SSCSD are contained in section 39AA.

Item 20 - Section 39AA (heading)

44. This item repeals the existing heading at section 39AA substituting it with a new heading which reflects that section 39AA will only apply to agency parties in the SSCSD, and not to both non-agency and agency parties as it currently does.

Item 21 - Subsection 39AA(1)

45. This item repeals subsection 39AA(1) which deals with the right of a non-agency party in the SSCSD to make submissions to the AAT. The provision is no longer required as the broader subsection 39(1) will apply to non-agency parties in the SSCSD.

Item 22 - Subsection 39AA(2) (heading)

46. This item repeals the heading directly before subsection 39AA(2). As section 39AA will only deal with when agency parties in the SSCSD may or may be required to make submissions, and subsection 39AA(1) is to be repealed, there is no requirement to differentiate between agency and non-agency parties in this section.

Item 23 - Application provision

47. This item is an application provision which provides that the amendments made by this Part apply in relation to proceedings that arise in the AAT on or after the commencement of the item, and proceedings that are pending in the AAT immediately before the commencement.

Part 3 - Alternative dispute resolution process

AAT Act

48. Subsection 34A of the AAT Act provides that the President of the AAT may direct that a proceeding, or any part of it or matter arising out of the proceeding, be referred to an alternative dispute resolution (ADR) process to be conducted by a member, officer of the AAT or a suitable person engaged by the Registrar.

49. These types of pre-hearing processes, particularly conferencing and conciliation, are commonly used in most divisions of the AAT. They offer an opportunity for the AAT to assist parties to identify and narrow the issues in the review, explore whether an application can be resolved by agreement and otherwise clarify the steps required to prepare for a hearing. ADR processes cannot be used currently in the SSCSD.

50. This Part will extend conferencing to the SSCSD, expanding the range of pre-hearing processes available to manage cases in the division. The SSCSD will have the flexibility to be able to refer suitable types of cases to conferencing which may include, for example:

•

reviews of child support decisions involving two non-agency parties where the parties may be able to reach agreement as to the terms of a decision without the need for a hearing, or

•

more complex reviews where additional case management through conferencing may assist an applicant to better prepare for a hearing.

Early engagement through conferencing can provide benefits both for the parties and for the SSCSD in appropriate cases.

Item 24 - Section 34

51. Subsection 34(b) provides that Division 3 of Part IV of the AAT Act relating to ADR processes does not apply to a proceeding in the SSCSD. This item repeals the section and substitutes a new section. The effect of the amendment is to repeal subsection 34(b) and will enable ADR to be used in the SSCSD.

Item 25 - After subsection 34A(1)

52. This item inserts a new subsection which specifies that the only type of ADR process to which the President can refer a proceeding in the SSCSD is conferencing.

53. It also provides that the agency party to a proceeding is not required to participate in a pre-hearing conference. These provisions reflect that the agency party does not generally participate in a review in the SSCSD and that, in these circumstances, conferencing is the type of process most suited to the SSCSD.

Item 26 - At the end of section 34A

54. Subsection 34A(3) provides that the parties to a proceeding referred to an ADR process must act in good faith in relation to the conduct of the process. This item inserts a new subsection (4) that will clarify that subsection 34A(3) does not apply to the agency party if it is not participating in a conference in a proceeding in the SSCSD.

Item 27 - After paragraph 34D(1)(a)

55. Section 34D sets out what occurs if, in the course of an ADR process, the parties or their representatives reach agreement as to the terms of a decision the AAT may make in relation to the proceeding, part of the proceeding or a matter arising out of the proceeding. This item inserts words in paragraph 34D(1) to clarify that, if the agency party to a proceeding in the SSCSD did not participate in the ADR process and an agreement is reached, its agreement is also required before the AAT can act in accordance with the agreement.

Item 28 - Application provision

56. This item is an application provision which provides that the amendments made by this Part apply in relation to an application for review made on or after the commencement of the item.

Part 4 - Constitution of the Tribunal

AAT Act

Item 29 - At the end of paragraph 19B(1)(b)

57. Paragraph 19B(1) of the AAT Act provides that the AAT as constituted for the purposes of a proceeding:

(a)

must not have more than 3 members, unless another provision of the AAT Act or another enactment otherwise in relation to the proceeding, and

(b)

must not have more than one member who is a Judge.

58. Paragraph 19B(1)(b) is inconsistent, however, with a number of other enactments which suggest that the AAT may be constituted with multi-member panels that have more than one Judge: see section 46 of the Archives Act 1983, section 141 of the Commonwealth Electoral Act 1918 and section 58B of the Freedom of Information Act 1982.

59. Item 29 amends paragraph 19B(1)(b) to clarify that another provision of the AAT Act or another enactment may allow there to be more than one Judge on a multi-member panel constituted for the purposes of a proceeding.

Commonwealth Electoral Act 1918

Item 30 - Subsection 141(6A)

60. This item repeals subsection 141(6A) of the Commonwealth Electoral Act 1918 (Electoral Act) and is consequential to the amendment made by the above item.

61. Subsection 141(6A) provides that paragraph 19B(1)(b) of the AAT Act does not apply in relation to a review of a decision made under section 141 of the Electoral Act.

62. In light of the above amendment to paragraph 19B(1)(b), subsection 141(6A) will no longer be required and the AAT will continue to be able to be constituted in accordance with subsection 141(6).

Item 31 - Subsection 298H(5)

63. This item is a consequential amendment to subsection 298H(5) of the Commonwealth Electoral Act 1918 to omit the reference to subsection 141(6A) and substitute a reference to subsection 141(6).

Item 32 - Application provision

64. This item is an application provision which provides that the amendments made by this Part apply in relation to the constituting (or reconstituting) of the AAT on or after the commencement of the item.

Part 5 - Reconstitution of the Tribunal

AAT Act

65. Section 19D of the AAT Act provides that the President of the AAT can revoke a direction to constitute the AAT for the purposes of a proceeding either before the hearing commences (s19D(1)) or after the hearing commences (s19D(2)). Subsection 19D(2) provides that the President may make a direction to reconstitute the AAT if:

•

the member, or one of the members, who constitutes the AAT stops being a member (s19D(2)(a)(i)), is for any reason unavailable (s19D(2)(a)(ii)), or is directed by the President not to take part in the proceeding (s19D(2)(a)(iii)

•

the President considers that doing so is in the interests of achieving the expeditious and efficient conduct of the proceeding.

66. Subsection 19D(5) provides that the President must not give a direction to a member under subparagraph 19D(2)(a)(iii) not to take part in a proceeding unless the President is satisfied it is in the interests of justice to do so, and has consulted the member.

Item 33 - Paragraph 19D(5)(b)

67. This item amends subsection 19D(5) by providing that the President must have consulted the member 'where it is reasonably practicable to do so'. This amendment reflects that it may not always be possible to consult the member depending on the particular circumstances.

Item 34 - Paragraph 19D(6)(b)

68. Subsection 19D(6) provides that the President cannot act under subsection 19D(2) to revoke a direction and give another direction unless the President is satisfied it is in the interests of justice to do so and has consulted with each member who as a result ceases to be a member of the AAT as constituted for the proceeding.

69. Item 34 amends subsection 19D(6) by providing that the President must have consulted each member who ceases to be a member of the AAT as constituted 'where it is reasonably practicable to do so'. Similar to the above item, this amendment reflects that it may not always be possible to consult a member depending on the particular circumstances such as where the member is seriously ill.

Item 35 - Application provision

70. This item is an application provision which provides that the amendment of paragraph 19D(5)(b) made by this Part applies in relation to the giving of a direction referred to in subparagraph 19D(2)(a)(iii) on or after the commencement of the item.

71. This item also provides that the amendment of paragraph 19D(6)(b) made by this Part applies in relation to a revocation under subsection 19D(2) on or after the commencement of the item irrespective or whether or not the direction was given under subsection 19A(1) before, on or after that commencement.

Part 6 - Dismissal powers

AAT Act

72. This Part amends section 42A of the AAT Act to permit authorised officers to dismiss applications in limited circumstances and to standardise the time within which a party must apply for reinstatement of an application that has been dismissed.

Dismissal if decision is not reviewable

73. Prior to amalgamation with the AAT, the Principal Member of the former Social Security Appeals Tribunal (SSAT) was able to delegate to SSAT staff the power to dismiss applications for review of decisions that were not reviewable by the SSAT. A substantial volume of applications made to the SSAT were for the review of decisions that had not been subject to internal review and could therefore not be reviewed.

74. Vesting this dismissal power in authorised officers recognises that the SSCSD continues to receive a significant number of applications in relation to decisions which the AAT does not have power to review, primarily on the basis that the decision has not been subject to internal review. Consistent with other provisions in the AAT Act that allow authorised staff members to exercise powers that would otherwise be exercised by members (see, for example, sections 33(2) and 40B of the AAT Act), it will also help to achieve efficiencies in the SSCSD by allowing members to focus on more complex matters.

75. The following safeguards exist to ensure the power is exercised appropriately:

•

the power will only be able to be exercised by officers authorised by the President under section 59B of the AAT Act and in accordance with any limitations imposed on the authorisation by the President, and

•

a member of the AAT may reinstate an application under subsection 42A(10) if it appears that the application has been dismissed in error either on the application of a party or on its own initiative.

Reinstatement of application

76. Subsections 42A(8), (8A) and (10) of the AAT Act provide that a party to a proceeding may apply to the AAT for reinstatement of an application if:

•

the applicant notified the AAT under subsection 42A(1A) or (1AA) that the application is discontinued or withdrawn and another party wishes the review to continue (s42A(8))

•

the AAT dismissed the application under subsection 42A(2) after the applicant failed to appear in person or by a representative at an ADR process, directions hearing or hearing (s42A(8A)), or

•

the AAT dismissed, or is taken to have dismissed the application under any provision of section 42A and the party considers the application was dismissed in error (s42A(10)).

77. An application for reinstatement under subsection 42A(8) or (8A) must be made within 28 days after the person receives notification that the application has been dismissed or such longer period as the AAT, in special circumstances, allows (s42A(8B)).

78. Items 39 to 41 amend the provisions relating to reinstatement of an application by standardising in new subsection 42A(11) that the same time limit applies for applications made under subsection 42A(10) as well as applications made under subsections 42A(8) or (8A). This will improve consistency in relation to the operation of the reinstatement provisions, clarify for parties the time within which an applications must be made and promote the timely finalisation of applications in the AAT.

Item 36 - After subsection 42A(4)

79. This item amends the AAT Act by inserting a new subsection 42A(4A) which will allow authorised officers of the AAT to dismiss an application for review of a decision if the officer is satisfied that the decision is not reviewable.

Item 37 - Subsections 42A(8) and (8A)

80. This item amends subsections 42A(8) and (8A) to remove references to the repealed subsection 42A(8B) and to instead reference the new subsection 42A(11).

Item 38 - Subsection 42A(8B)

81. This item removes subsection 42A(8B) which provides the timeframes in which a party has to apply for reinstatement of an application under subsection 42A(8) or (8A). The timeframes to apply for reinstatement are set out in new subsection 42A(11).

Item 39 - Subsection 42A(10)

82. This item amends subsection 42A(10) to specify that, where an application appears to have been dismissed in error, a party to the proceeding must apply to have the application reinstated within the period referred to in new subsection 42A(11).

Item 40 - At the end of section 42A

83. This item adds a new subsection 42A(11) which specifies the time period within which a party must apply for reinstatement under subsections 42A(8), (8A) and (10): that is, within 28 days after the person receives notification that the application has been dismissed or, if the party requests an extension, such longer period as the AAT, in special circumstances, allows. This new subsection replaces the former subsection 42A(8B).

Item 41 - Subsection 69BA(1)

84. Section 69BA provides that the dismissal powers set out in sections 42A and 42B of the AAT Act, which apply to applications for review of a decision, extend to other types of applications that may be made to the AAT. The exception specified in subsection 69BA(1) is the power in subsection 42A(4) to dismiss an application if the AAT is satisfied that the decision is not reviewable by the AAT. This can only apply to an application for review of a decision.

85. This item makes a consequential amendment to subsection 69BA(1) to add a reference to subsection 42A(4A) inserted by this Part as it can also only apply to an application for review of a decision.

Item 42 - Application provision

86. This item is an application provision which provides that subsection 42A(4A) applies in relation to an application for review made on or after the commencement of this item.

87. The application provisions also provide that amendments to subsections 42A(8), (8A) and (10) apply in relation to notification of a dismissal given on or after the commencement of this item irrespective of whether or not the dismissal was made (or taken to have been made) before, on or after the commencement of this item.

Part 7 - Correction of errors

AAT Act

Item 43 - Subsection 43AA(4)

88. This item repeals subsection 43AA(4) which provides that the AAT's power to correct errors in the text of a decision or in a written statement of reasons for the decision can only be exercised by the President or the member who presided at the proceeding. Errors that can be corrected under this provision include: obvious errors in the text of a decision such as obvious clerical or typographical errors or inconsistencies between the decision and the statement of reasons.

89. This item substitutes a new subsection 43AA(4) which provides that the power to correct errors in decisions or statement of reasons may be exercised by:

•

the member who constituted the AAT for the purposes of the proceeding or, if the AAT was constituted by more than one member, the member who presided at the proceeding, or

•

if that member has stopped being a member or is unavailable for any reason, the President or an authorised member.

90. This amendment will give greater flexibility to the AAT in correcting errors, and allow those errors to be corrected more quickly, in circumstances where the presiding member is unavailable.

Item 44 - Application provision

91. This item is an application provision which provides that the amendments made by this Part apply in relation to the exercise of powers of the AAT on or after the commencement of the item.

Part 8 - Appointments, authorisations and assignments

AAT Act

Item 46 - At the end of subsection 10(2)

92. This item limits an acting appointment to no more than 12 months unless section 10 applies. Time limits to acting appointments should be applied as these appointments are temporary in nature.

Item 47 - After subsection 10(2)

93. Section 10 of the AAT Act provides for acting appointments. Subsection 10(2) sets out that the Minister may appoint a person to act as a member (other than the President) during any period, or during all periods, when a full-time member is absent from duty or from Australia or a part-time member is unavailable to perform the duties of office. This item inserts new subsection (2A), which clarifies that the Minister may appoint a person to act as a Deputy President in circumstances where there are no Deputy Presidents. The new subsection specifies that an acting appointment must be for no more than 12 months.

Items 48 - 49

94. These items make consequential amendments.

95. Subsection 10(3) provides that a person must not be appointed to act as the President of the AAT under subsection 10(1) or as an acting member under subsection 10(2) unless the person meets the requirements in section 7 for appointment to the office. Item 48 removes the reference to subsection 10(1) in subsection 10(3) as subsection 10(1) already specifies that the Minister can only appoint a Judge of the Federal Court of Australia to act as the President, the same requirement as is specified in subsection 7(1). Item 48 also adds a reference to new subsection 10(2A) to clarify that the requirements of an acting appointment under subsection 10(3) now also apply to the new subsection 10(2A).

96. Subsection 10(7) provides that a person (other than a Judge) appointed to act under subsection 10(2) is to act on such terms and conditions as the Minister determines in writing. Item 49 adds a reference to new subsection 10(2A).

Items 50 - 54

97. Section 17L of the AAT Act provides for the assignment by the Minister of a Deputy President or senior member to be the deputy head of one or more Divisions of the AAT. Items 50 to 54 amend subsections 17L(1), (3), (6) and (7) to replace references to 'the deputy head' with 'a deputy head' to ensure that the AAT Act's language reflects clearly that more than one deputy head may be appointed for a Division of the AAT at any one time.

98. Subsection 17L(7) sets out the circumstances in which a member may be assigned to act the deputy head of a Division. Item 54 also clarifies that, in addition to being able to assign a member to act when a deputy head of a Division is absent from duty or from Australia, an acting assignment may be made 'when there is no deputy head of the Division'. This accounts for circumstances where there may be no deputy head of a division at a particular time and, as such, an acting deputy head is required.

Officers of the Tribunal

99. Section 24P of the AAT Act provides that the Registrar of the AAT and members of the staff of the AAT have the functions and powers conferred on them by the AAT Act and any other enactment and by the President. Section 24PA of the AAT Act allows the Registrar to appoint a person (a member of the staff of the AAT engaged under the Public Service Act 1999, an APS employee made available to the AAT or an officer of the Supreme Court of Norfolk Island) as an officer of the AAT if satisfied that the person has appropriate qualifications and experience.

100. Items 55-57 amend the AAT Act to clarify the operation of these provisions, including the power of the Registrar to determine the scope of the functions or powers an officer of the AAT may perform or exercise.

Item 55 - Section 24P (heading)

101. This item repeals the heading of 24P and replaces it with 'Functions of officers and staff members of the Tribunal' to accurately reflect the changes made by the next items.

Item 56 - Section 24P

102. The term 'officer of the Tribunal' is defined in subsection 3(1) of the AAT Act to mean the Registrar or a person appointed as an officer of the AAT under section 24PA. The classes of person who can be appointed as an officer of the AAT extend beyond the staff of the AAT. This item amends section 24P to make clear that subsection 24P of the AAT Act relates to all officers of the AAT as well as all members of the staff of the AAT.

Item 57 - Section 24PA

103. This item repeals and replaces existing section 24PA. Under the current provision, there is no ability for the Registrar to limit a person's appointment as an officer: that is, once appointed, the person may perform or exercise any function or power that is conferred on an officer. New subsection 24PA(2) makes clear that the Registrar can limit a person's appointment as an officer to specified decisions or proceedings or to specified functions or powers. The Registrar will be able to make appointments which specify, for example, that persons may only exercise powers in relation to applications in certain divisions or that particular powers may only be exercised by staff of the AAT at or above a particular level. This will give the Registrar additional flexibility to determine how best to ensure the proper performance or exercise of the various functions and powers conferred on officers in different divisions which range from receiving, emailing or posting documents to conducting ADR processes and issuing summonses for persons to give evidence or produce documents.

104. This item also removes the requirement that the Registrar can only appoint a person to be an officer of the AAT if satisfied that the person has appropriate qualifications and experience. The relevance of this requirement to some of the routine functions that must be performed by officers of the AAT, such as receiving, emailing or posting documents, is unclear. The Registrar can be expected to ensure persons who will be appointed as officers have appropriate qualifications and experience for the functions or powers they may perform or exercise without this being a requirement under the Act. There is no requirement of this kind in other legislation such as the Federal Court of Australia Act 1976 or other legislation governing the operation of federal courts relating to the appointment of officers of the courts.

Items 58 - 59

105. These items amend subsections 59A(2) and 59B(2) of the AAT Act to provide that the President may limit the authorisation of members and officers to perform or exercise particular functions or powers in addition to specified decisions or proceedings. This will give the President additional flexibility to determine whether certain functions or powers should only be exercised by particular members or officers or categories of members or officers.

Item 60 - Application provision

106. This item provides that the amendments made by this Part under subsection 10(2) apply in relation to appointments made on or after the commencement of the item.

107. This item provides that assignments made under subsection 17L(1) or (7) immediately before the commencement of this item continue in force on and after the commencement.

108. This item provides that conferral of a function or power by the President under section 24P or an appointment under section 24PA made before the commencement of this item are not impacted by amendments made in this Part .

109. This item provides that the amendments made by this Part under sections 59A and 59B apply in relation to authorisations given on or after the commencement of the item.

Part 9 - Taxation of costs

AAT Act

Item 61 - Paragraph 69A(1)(a)

110. In general, the AAT does not have power to order a party to a proceeding to pay the costs incurred by another party. However, this power exists in a small number of Acts that confer jurisdiction on the AAT: see, for example, section 67 of the Safety, Rehabilitation and Compensation Act 1988. Section 69A of the AAT Act provides that, if the AAT has ordered a party to pay reasonable costs incurred by another party, and the parties cannot agree on the amount of those costs, the AAT may tax and determine the 'reasonable costs'.

111. In Dive and Comcare (1997) 48 ALD 753; (1997) 25 AAR 11, Deputy President Forgie held that the particular procedures set out in section 69A of the AAT Act only apply if the order made by the AAT is to pay the 'reasonable costs' incurred by that party and they do not apply otherwise.

112. Section 69A should apply in any circumstance where the AAT (pursuant to the AAT Act or another enactment) has ordered that costs be paid, and not specifically where the order relates to reasonable costs. Accordingly, this item removes the word 'reasonable' from subsection 69A(1) of the AAT Act.

Item 62 - Application provision

113. This item is an application provision which provides that the amendments made by this Part apply in relation to costs orders made by the AAT on or after the commencement of the item.

Part 10 - Protection and immunity of Reviewers of Immigration Assessment Authority

AAT Act

Item 63 - Section 60 (heading)

114. This item simplifies the heading at section 60 by repealing the existing heading which refers to the different categories of persons covered by the section and substituting the new heading 'Protection and immunity'.

Item 65 - Before subsection 60(4)

115. This item is a technical amendment to add a subheading - 'Definitions' - to subsection 60(4) to more clearly indicate that it is a subsection containing definitions.

Part 11 - Application for review of child support decisions

Child Support Act

116. Section 89 of the Child Support Act sets out the decisions in relation to which an application may be made to the AAT for first review of a decision of the Child Support Registrar and who can apply for review of the decision. Pursuant to item 2 of the table in section 89, these decisions include a decision to disallow, or to allow in whole or in part, an objection to a decision about a parent or non-parent carer's percentage of care for a child for child support assessment purposes (care percentage decision). Item 2 of the table sets out that the person who objected to the original decision may apply for review but, as currently drafted, does not specify that the other parent or non-parent carer may also apply for review of the objection decision. However, as a person whose interests are affected by the decision, the other parent or non-parent carer is entitled to apply for review of an objection decision about care percentage decision in accordance with subsection 27(1) of the AAT Act.

117. The purpose of this Part is to amend section 89 of the Child Support Act to specify clearly in that section that a parent or non-parent carer who did not object to a care percentage decision may apply for review of a decision on the objection. This amendment will also clarify that, where an application is made by the person who objected to the care percentage decision, the other parent or non-parent is automatically a party to the review in the AAT in accordance with section 95D of the Child Support Act. Currently, the AAT must make an order under subsection 30(1A) making the other parent or non-parent carer a party to the review.

Item 66 - Section 89 (table item 2, column headed "Who may apply for review", paragraph (a))

118. This item amends table item 2 column headed 'Who may apply for review' paragraph (a) to include 'in any case-' before 'the person'.

Item 67 - Section 89 (table item 2, column headed "Who may apply for review", paragraph (b))

119. This item amends table item 2 column headed 'Who may apply for review' paragraph (b) to include 'if the original decision is not a care percentage decision-' before 'a person'.

Item 68 - Section 89 (at the end of the cell table item 2, column headed "Who may apply for review")

120. This item inserts a new paragraph (c) in table item 2 which will specify that a person who was required to be notified under section 85A of the Child Support Act that an objection had been lodged in relation to a care percentage decision may apply for review of a decision on the objection. This will also have the effect that such a person will be automatically a party to the review if the person who objected to the care percentage decision applies to the AAT for review of the decision on the objection.

Item 69 - Application provision

121. This item is an application provision which provides that the amendments made by this Part apply in relation to decisions made under subsection 87(1) of the Child Support Act on or after the commencement of the item irrespective of whether the objection was lodged before on or after that commencement.

Part 12 - Parties to review of reviewable determination under Military Rehabilitation and Compensation Act

Military Rehabilitation and Compensation Act 2004 (MRC Act)

122. When a primary decision made under the MRC Act is reviewed by the Veterans' Review Board, either the claimant, the Chief of the Defence Force or the Military Rehabilitation and Compensation Commission can apply to the AAT for review of the Board's decision: see item 2 of the table in section 355.

123. If the Chief of the Defence Force or the Commission applies to the AAT, there is no provision modifying section 30 of the AAT Act, which specifies who are the parties to a proceeding before the AAT, to ensure the claimant is automatically made a party to the review.

Item 70 - Section 355 (table item 5)

124. This item amends table item 5 in section 355 of the MRC Act to make further modifications to section 30 of the AAT Act so that a claimant under the MRC Act is automatically made a party to an AAT review where the Chief of the Defence Force or the Commission applies to the AAT for review of a decision of the Veterans' Review Board.

Item 71 - Application provision

125. This item is an application provision which provides that the amendments made by this Part apply in relation to applications for review under subsection 354(1) of the MRC Act made on or after the commencement of the item.

Part 13 - Admiralty amendments

126. This Bill amends the Admiralty Act 1988 (Admiralty Act) to apply the Legislation Act 2003 (the Legislation Act) to the Admiralty Rules 1988 (Admiralty Rules) (except sunsetting and certain other provisions).

127. This Bill also clarifies that the Admiralty Rules, made under the Admiralty Act, are rules of court, for the avoidance of doubt.

128. The application of the Legislation Act to the Admiralty Rules aligns with the application of the Legislation Act to rules of the federal courts (the Legislation Act, other than its sunsetting provisions and certain other provisions, applies to such rules pursuant to the Legislation Amendment (Sunsetting and Other Measures) Act 2018). The application of the Legislation Act to rules of court implements recommendations 34 and 35 of the Report on the Operation of the Sunsetting Provisions in the Legislation Act 2003 (the Sunsetting Review Report). The Sunsetting Review Report was tabled in the House of Representatives on 23 October 2017 and in the Senate on 13 November 2017.

129. The application of the Legislation Act to the Admiralty Rules will ensure that, as rules of court, there is no doubt that the Admiralty Rules do not sunset. It will also ensure that the Admiralty Rules continue to be registered and published in accordance with the processes set out in the Legislation Act.

130. It is appropriate that the Admiralty Rules not be subject to sunsetting since they are made by the Admiralty Rules Committee, which is established under section 42 of the Admiralty Act. The Admiralty Rules Committee advises the Attorney-General with respect to the Admiralty Rules and is comprised by judges of the Federal Court of Australia and of State or Territory Supreme Courts and senior legal practitioners of admiralty law. Separation of powers considerations support the position that rules of court should be exempted from sunsetting.

131. It is also appropriate that it be made a requirement under the Legislation Act that the Admiralty Rules be published and registered for reasons of transparency, accessibility and accountability. This accords with the view of the Committee in the Sunsetting Review Report.

Admiralty Act 1988

Item 72 - at the end of section 41

132. Subparagraph 41(5) applies the Legislation Act (other than sections 8, 9, 10 and 16 and Part 4 of Chapter 3 of that Act) to the Admiralty Rules. Part 4 of Chapter 3 of the Legislation Act relates to sunsetting, from which it is appropriate that the Admiralty Rules, as rules of court, be exempt. It is not necessary to apply sections 8, 9 and 10 of the Legislation Act to the Admiralty Rules as this amendment applies the Legislation Act independently of whether the Rules meet the definition of 'legislative instrument' under that Act. It is not appropriate to apply section 16 of the Legislation Act as the Admiralty Rules are rules of court (and generally not drafted by the Office of Parliamentary Counsel).

133. Subparagraph 41(6) clarifies that the Admiralty Rules are rules of the court within the meaning of section 2K of the Acts Interpretation Act 1901. The rules have been considered and otherwise treated as rules of court so this paragraph is for the avoidance of doubt.

Item 73 - Application provision

134. This item clarifies that the application of the Legislation Act (other than sections 8, 9, 10 and 16 and Part 4 of Chapter 3 of that Act) to the Admiralty Rules applies to existing and to new rules made on or after the commencement of this Bill.

Part 14 - Foreign State immunity amendments

135. Part 14 of the Bill amends the Foreign States Immunities Act 1985 (the FSI Act) to ensure that proceedings in Australian courts are conducted in accordance with Australia's international obligations to afford immunity to foreign States in certain circumstances. In particular, the Bill limits the circumstances in which proceedings may be commenced against a foreign State on an ex parte basis (proceedings that occur in the absence of, and without notice being given to, the foreign State).

136. Specifically, Part 14 of the Bill will preclude an Australian court from:

a.

entering a judgment,

b.

making an order for the registration of a foreign judgment, or

c.

making an order for the recognition or enforcement of a foreign award against a foreign State in ex parte proceedings. These amendments have been made following the High Court of Australia's decision in Firebird Global Master Fund II Ltd v Republic of Nauru (Firebird). ^[1]

137. In Firebird, the High Court considered the application of section 27 of the FSI Act to the registration of a foreign judgment. Section 27 prevents a 'judgment in default of appearance' being entered against a foreign State unless (1) the FSI Act's service requirements have been complied with, and (2) the court is satisfied that the foreign State is not immune in the proceeding. In Firebird, the Republic of Nauru contended that the term 'judgment in default of appearance' means any judgment obtained where there is no appearance by the foreign State, including an ex parte application to register a foreign judgment. This interpretation would have extended the procedural protection afforded to foreign States under section 27, that is expressly prohibiting the entry of a judgment against a foreign State in circumstances where the initiating process has not been served in accordance with the requirements in Part III of the Act, to cover ex parte proceedings.

138. The majority of the High Court rejected this interpretation, drawing a distinction between a 'judgment in default of appearance' and ex parte proceedings, including the registration of a foreign judgment, in which the Court held there was no default. ^[2] Only Gageler J, in his dissenting opinion, preferred Nauru's argument stating that section 27 of the FSI Act prevents a court from making an ex parte order for the registration of a foreign judgment against a foreign State where the service requirements of Part III have not been observed. ^[3] As per Gageler J:

Section 27(1) is rather to be understood as protective of a foreign State whenever a foreign State has for any reason not appeared in a proceeding. It is directed to ensuring in those circumstances that a court will not proceed to make an order against the foreign State unless the foreign State has been made a party to the proceeding as a result of service of an initiating process by a method allowed under Pt III of the Immunities Act and unless the immunity from jurisdiction conferred on the foreign State by Pt II is not infringed. ^[4]

139. The effect of the majority judgment is that, when considering whether to enter judgment in an ex parte proceeding against a foreign State, including to register a foreign judgment, a court need not be satisfied either that the foreign State has been served with the initiating process in accordance with the Act, nor that the foreign State is not immune in the proceeding. Accordingly, the Bill clarifies the application of the FSI Act to ex parte proceedings to ensure that foreign States are afforded appropriate procedural immunities, and to reduce the risk that an Australian court could register a foreign judgment against a foreign State in circumstances where Australia is obliged to afford that foreign State immunity under customary international law.

140. Furthermore, the amendments to the FSI Act similarly extend procedural protections in proceedings relating to the recognition or enforcement of a foreign award against a foreign State pursuant to the International Arbitration Act 1974 (the Arbitration Act). The Arbitration Act gives effect to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and the International Centre for Settlement of Investment Disputes Convention (ICSID Convention). Pursuant to the Arbitration Act, awards made under these conventions may be enforced in Australian courts as if the awards were judgments or orders of the competent courts. However, the Arbitration Act does not prescribe any requirements for service of initiating process. Accordingly, in harmonising service provisions relating to foreign States, the amendments to the FSI Act also clarify the circumstances in which an Australian court can make an order for the recognition or enforcement of a foreign award against a foreign State or a separate entity of a foreign State.

Foreign Judgments Act 1991 (Foreign Judgments Act)

Item 74 - At the end of subsection 6(1)

141. Subsection 6(1) of the Foreign Judgments Act provides that a judgment creditor under a judgment to which Part 2 of the Act applies may apply to the appropriate court to have the judgment registered in the court within a specified timeframe. Item 74 inserts a note to subsection 6(1) to clarify that where the foreign judgment has been made against a foreign State, or a separate entity of a foreign State, the FSI Act is the appropriate regime for regulating the registration of that foreign judgment.

FSI Act

Item 75 - Subsection 3(1)

142. Subsection 3(1) of the FSI Act sets out the definitions of key terms used in the Act. Item 75 inserts definitions of the terms 'foreign award' and 'foreign judgment'. In particular, 'foreign award' is defined as an arbitral award within the meaning of Part II of the Arbitration Act (relating to the New York Convention) or an award within the meaning of Part IV of the Act (relating to the ICSID Convention). The definitions of 'foreign award' and 'foreign judgment' are aligned with the use of the terms in the Arbitration Act and the Foreign Judgments Act respectively, to ensure consistency with these regimes.

Item 76 - Subsection 3(1) (definition of initiating process )

143. Item 76 amends the definition of 'initiating process' to capture applications that seek to initiate proceedings on an ex parte basis. Ex parte proceedings would not otherwise be captured by the original definition, which stated that an initiating process means 'an instrument...by reference to which a person becomes a party to a proceeding' (emphasis added). This amendment also brings the definition of 'initiating process' into alignment with the original Explanatory Memorandum to the FSI Act, which states that 'initiating process' 'includes all statements of claim, summons etc. that commence proceedings in court. It also includes other instruments by reason of which or by reference to which a person becomes a party to proceedings such as third party notices'.

144. Furthermore, the insertion of subparagraph (a) into the definition of 'initiating process' also brings the definition into alignment with the definition of 'initiating process' in subsection 3(1) of the Service and Execution of Process Act 1992 (SEPA), which is identical to the proposed amendment. The Foreign Judgments Act refers to SEPA with respect to registration of judgments. Accordingly, the amendment further aligns all three Acts.

145. Item 76 also inserts a note to the definition of 'initiating process' to clarify that examples of an initiating process include a summons for the registration of a foreign judgment and an application for the recognition or enforcement of a foreign award. This note reflects the High Court's position in Firebird, where it stated that the definition of 'initiating process' is wide and would include a summons for the registration of a foreign judgment. ^[5]

Item 77 - After section 26

146. Item 77 inserts a new section, section 26A, which precludes an Australian court from:

a.

entering a judgment other than an interlocutory judgment

b.

making an order for the registration of a foreign judgment, and

c.

making an order for the recognition of enforcement of a foreign award against a foreign State on an ex parte basis. Precluding Australian courts from entering a judgment (other than an interlocutory judgment), making an order for the registration of a foreign judgment or the recognition or enforcement of a foreign award in such circumstances in unqualified. This is because these categories of orders and judgments do not attract the level of urgency normally associated with ex parte applications. Moreover, this amendment will also ensure that foreign States are properly notified of any proceeding against them.

147. It is important to note that while these judgments and orders may not be sought on an ex parte basis, they can still be sought against a foreign State provided that service of the initiating process is effected in accordance with the Act and the time for appearance has expired.

148. Given the High Court in Firebird noted that proceedings in default of appearance do not include ex parte proceedings, ^[6] these amendments prohibiting ex parte proceedings are dealt with in a separate section rather than in section 27. This also avoids any tension between the ordinary meaning of the terms 'ex parte' and 'in default of appearance'.

149. Section 26A does not extend the same procedural protection with respect to ex parte proceedings against a separate entity of a foreign State. This approach is consistent with the current treatment of a separate entity of a foreign State in the FSI Act, which in turn was based on the recommendations in the Australian Law Reform Commission's 1984 report on Foreign State Immunity (Report No 24) ^[7] (the ALRC Report). The ALRC Report recommended extending immunity to a separate entity of a foreign State on a more restrictive basis and, in relation to service, states that a separate entity is to be treated no differently to a foreign corporation. ^[8] On that basis, it remains permissible for an ex parte proceeding of any kind (other than interlocutory judgments) to be commenced against a separate entity of a foreign State provided the court is satisfied that, in the proceedings, the separate entity is not immune.

150. In relation to interlocutory judgments, section 26A leaves open the possibility of an interlocutory judgment being entered against either a foreign State or a separate entity of a foreign State, on an ex parte basis. However, where a matter is able to proceed against a foreign State, or a separate entity of a foreign State, on an ex parte basis, this does not automatically mean that such a proceeding is warranted. The effect of section 26A is that it provides the Australian court seized of the matter with the discretion to determine whether a particular proceeding should be conducted on an ex parte basis. Such discretion would include consideration of whether the foreign State, or the separate entity of the foreign State, might be immune in respect of the interlocutory order sought in the ex parte proceedings.

Item 78 - Section 27 (heading)

151. Item 78 repeals the current heading of section 27, 'Judgment in default of appearance', to 'Judgments or orders in default of appearance' to reflect the amendments to section 27 as per items 79 and 80 below.

Item 79 - Subsection 27(1)

152. Subsection 27(1) provides that a judgment in default of appearance may be entered against a foreign State where (1) it is proved that service of the initiating process was effected in accordance with the FSI Act and that the time for appearance has expired, and (2) the court is satisfied that the foreign State is not immune in the proceeding.

153. In light of new section 26A, item 79 amends subsection 27(1) of the FSI Act to clarify that, where the requirements of subsection 27(1) are satisfied, an Australian court may:

a.

enter a judgment (whether interlocutory or final) in default of appearance against a foreign State

b.

make an order for the registration of a foreign judgment in default of appearance against a foreign State, or

c.

make an order for the recognition or enforcement of a foreign award in default of appearance against a foreign State.

154.'In default of appearance' is to be given its ordinary meaning.

Item 80 - Subsection 27(2)

155. Subsection 27(2) provides that a judgment in default of appearance may be entered against a separate entity of a foreign State where the court is satisfied that the separate entity is not immune in the proceeding.

156. Consistent with the rationale behind item 79, item 80 similarly clarifies that an Australian court may enter a judgment (whether interlocutory or final) in default of appearance, or make an order for the registration of a foreign judgment or an order for the recognition or enforcement of a foreign award in default of appearance where the court is satisfied that the separate entity is not immune in that proceeding.

Item 81 - Section 28 (heading)

157. Item 81 repeals the current heading of section 28, 'Enforcement in default of appearance', to 'Enforcement of judgments and orders in default of appearance' to reflect the amendments to section 28 as per items 82 to 89 below.

Item 82 - Subsection 28(1)

158. Subsection 28(1) sets out the procedures for enforcing against a foreign State a judgment in default of appearance, including the appropriate documents to be served on the foreign State before the default judgment can be enforced. Item 82 amends section 28 to clarify that the procedures for enforcing a judgment in default of appearance by a foreign State also extend to an order for the registration of a foreign judgment and an order for the recognition or enforcement of a foreign award, in default of appearance. This amendment mirrors and is consistent with the amendments to section 27.

Item 83 - Paragraph 28(1)(a)

159. Consistent with the rationale behind item 82, item 83 amends paragraph 28(1)(a) to insert 'or order' after 'copy of the judgment'. This amendment ensures that an order for the registration of a foreign judgment, or for the recognition or enforcement of a foreign award, in default of appearance is included within the scope of that paragraph.

Item 84 - Subparagraphs 28(1)(b)(i) and (ii)

160. Consistent with the rationale behind item 82, item 84amends subparagraphs 28(1)(b)(i) and (ii) to insert 'or order' after 'translation of the judgment'. This amendment ensures that an order for the registration of a foreign judgment, or for the recognition or enforcement of a foreign award, in default of appearance within the scope of those paragraphs.

Item 85 - Subsection 28(2)

161. Subsection 28(2) states that the document to be served on a foreign State is to be given together with Form 2 in the Schedule to the FSI Act to the Attorney-General's Department (AGD). Consistent with the rationale behind item 82, item 85 amends subsection 28(2) to include an order for the registration of a foreign judgment, or for the recognition or enforcement of a foreign award, in default of appearance within the scope of that subsection.

Item 86 - Subsection 28(5)

162. Subsection 28(5) sets out the time period for applying to have a default judgment set aside. Consistent with the rationale behind item 82, item 86 amends subsection 28(5) to insert 'or order' after 'judgment'. This amendment ensures that an order for the registration of a foreign judgment, or for the recognition or enforcement of a foreign award, in default of appearance is included within the scope of that subsection.

Item 87 - Subsection 28(6)

163. Subsection 28(6) sets out the conditions under which a court may enforce a default judgment to be enforced against a foreign State. Consistent with the rationale behind item 82, item 87 amends subsection 28(6) to include an order for the registration of a foreign judgment, or for the recognition or enforcement of a foreign award, in default of appearance within the scope of that subsection.

Item 88 - Subsection 28(6)

164. Consistent with item 87, item 88 amends subsection 28(6) to insert 'or order was made' after 'judgment was given'. This amendment ensures that an order for the registration of a foreign judgment, or for the recognition or enforcement of a foreign award, in default of appearance is included within the scope of that subsection.

Item 89 - Subsection 28(6)

165. Consistent with item 87, item 89 amends subsection 28(6) to include an order for the registration of a foreign judgment, or for the recognition or enforcement of a foreign award, in default of appearance within the scope of that subsection.

Item 90 - Schedule (Form 1)

166. Item 90 introduces a technical amendment to Form 1 in the Schedule to the FSI Act. Currently, Form 1 requests that the 'initiating process, the translation and the certificate' be transmitted to the department or organ of the foreign State that is equivalent to the Department of Foreign Affairs and Trade (DFAT). Section 24(2) of the FSI Act provides that the 'initiating process' shall be accompanied by Form 1, the statutory declaration, and the English translation. Accordingly, the amendments amend Form 1 so that it specifies that the Form 1 and the statutory declaration are also to be transmitted. This amendment reflects the current practice of AGD, which bears responsibility for transmitting documents delivered to it under the FSI Act to DFAT.

Item 91 - Schedule (Form 2)

167. Item 91 amends Form 2 to allow that Form to be used when requesting service on a foreign State of an order for the registration of a foreign judgment and an order for the recognition or enforcement of a foreign award, in default of appearance. This amendment mirrors and is consistent with the amendments to section 28.

Item 92 - Schedule (Form 2)

168. Consistent with item 91, item 92 amends Form 2 to allow that Form to be used when requesting service on a foreign State of an order for the registration of a foreign judgment, or for the recognition or enforcement of a foreign award, in default of appearance.

Item 93 - Schedule (Form 2)

169. Consistent with item 91 item 93 amends Form 2 to allow that Form to be used when requesting service on a foreign State of an order for the registration of a foreign judgment, or for the recognition or enforcement of a foreign award, in default of appearance.

Item 94 - Schedule (Form 2)

170. Consistent with item 91, item 94 amends Form 2 to allow that Form to be used when requesting service on a foreign State of an order for the registration of a foreign judgment, or for the recognition or enforcement of a foreign award, in default of appearance.

Item 95 - Application provisions

171. Item 95 clarifies that section 26A, as inserted by item 77, takes effect on or after the commencement of item 95. This allows foreign States and applicants to become aware of the changes made to the FSI Act, and the avenues for recourse against foreign States under the Act.

172. Amendments to section 27, as made by items 79 and 80, and amendments to section 28, as made by items 82 to 89, come into effect on or after the commencement of item 95, where the service of the initiating process was effected on or after that commencement. This avoids retroactive application of the amendments to judgments that have already been entered and to orders that have already been made. This allows foreign States and applicants to become aware of the changes made to the FSI Act and the avenues for recourse against foreign States under the Act.

International Arbitration Act 1974 (Arbitration Act)

Item 96 - At the end of subsection 8(3)

173. Subsection 8(3) of the Arbitration Act provides that a foreign award made under the auspices of the New York Convention may be enforced in the Federal Court of Australia as if the award were a judgment or order of that court. Item 96 inserts a note to subsection 8(3) to clarify that the FSI Act is the appropriate regime for regulating enforcement of a foreign award against a foreign State, or a separate entity of a foreign State.

Item 97 - At the end of subsection 35(4)

174. Subsection 35(4) provides that an award made under the auspices of the ICSID Convention may be enforced in the Federal Court of Australia with the leave of that court as if the award were a judgment or order of that court. Item 97 inserts a note to subsection 35(4) to clarify that the FSI Act is the appropriate regime for regulating enforcement of an award against a foreign State, or a separate entity of a foreign State.

Part 15 - Other amendments

AAT Act

Items 98 and 99

175. Changes made to the AAT Act by the Tribunals Amalgamation Act 2015 removed the need for a summons issued by the AAT under section 40A to require a person to appear specifically at a hearing or directions hearing. Subsection 40A(1) provides that a summons may require a person to give evidence and/or produce any document or thing on the day and at the time and place specified in the summons. Subsection 40A(3) provides that a person may comply with a summons to produce a document or thing by producing the document or thing at the Registry from which the summons was issued before the day specified in the summons and, if the person does so, the person is not required to attend the hearing of the proceeding unless the person's attendance is otherwise required.

176. Items 98 and 99 amend subsection 40A(3) and paragraph 40A(3)(b) of the AAT Act to ensure the language in this provision is consistent with the section as a whole as amended by the Tribunals Amalgamation Act. References to 'attending the hearing' will be replaced with references to 'appearing before the Tribunal'. The effect of these items is that attendance in response to a summons is required at the AAT generally rather than specific attendance at a hearing, unless the AAT summons a person to attend the AAT to give evidence.

Item 100 - Application provision

177. This item is an application provision which provides that the amendments by this Part to section 40A apply in relation to a summons issued under subsection 40A(1) on or after the commencement of the item.

Judiciary Act 1903 (Judiciary Act)

178. There is currently inconsistencies between the Judiciary Act which refers to consideration 'in Chambers' and the High Court Rules 2004, which refer to 'other than in open court'. Items 103-115 amend the Judiciary Act to ensure consistency in terminology.

Item 103 - Section 16 (heading)

179. This item repeals the existing section 16 heading and replaces it with 'Jurisdiction other than in open court' which reflects the new terminology being adopted by the High Court of Australia.

Item 104 - Section 16

180. This item removes the words 'in chambers' and replaces them with 'other than in open court in Chambers' in the opening sentence of section 16 and in 16(C) and 16(d).

Item 105 - Section 17 (heading)

181. This item repeals the existing section 17 heading and replaces it with 'State Supreme Courts invested with jurisdiction other than in open court' which maintains consistency with the changes to terminology in section 16 made by items 103 and 104.

Item 106 - Subsection 17(1)

182. This item changes the words in subsection 17(1) from 'in Chambers' to 'other than in open court' which maintains consistency with the changes to terminology in section 16 made by items 103 and 104.

Item 107 - Subsection 17(2)

183. This item inserts 'or otherwise' to subsection 17(2) to make the Judiciary Act to ensure that the practices of each state/territory court are reflected.

Item 108 - Subsection 17(2)

184. This item changes the words in section 17(2) from 'High Court sitting in Chambers' to 'High Court sitting other than in court'. This change maintains consistency with the changes to terminology in section 16 made by items 103 and 104.

Item 109 - Section 18

185. This item changes the words in section 18 from 'in Chambers' to 'otherwise'. This change reflects the new terminology being adopted by the High Court of Australia.

Item 110 - Section 26

186. This item changes the words in section 26 from 'in Chambers' to 'other than in open court'. This change reflects the new terminology being adopted by the High Court of Australia.

Item 111 - Subsection 34(1)

187. This item changes the words in subsection 34(1) from 'in Chambers' to 'otherwise'. This change reflects the new terminology being adopted by the High Court of Australia.

Item 112 - Subsection 34(2)

188. This item changes the words in subsection 34(2) from 'in Chambers' to 'otherwise'. This change reflects the new terminology being adopted by the High Court of Australia.

Item 113 - Subsection 69(3)

189. This item changes the words in subsection 69(3) from 'in Chambers' to 'sitting other than in open court'. This change reflects the new terminology being adopted by the High Court of Australia.

Item 114 - Subsection 76(3)

190. This item changes the words in subsection 76(3) from 'in Chambers' to 'otherwise'. This change reflects the new terminology being adopted by the High Court of Australia.

Item 115 - Subsections 77RR(1), (2) and (3)

191. This item changes the words in subsections 77RR(1), (2) and (3) from 'in Chambers' to 'other than in open court'. This change reflects the new terminology being adopted by the High Court of Australia.

Item 116 - Paragraph 86(1)(d)

192. This item changes the words in paragraph 86(1)(d) from 'Prescribing the forms' to 'making provision for or in relation to the forms'. This allows the High Court to remove the forms from the High Court Rules 2004 and to prescribe the forms instead by practice direction. This amendment would allow for consistency with the Federal Court as approved forms are defined in the Federal Court Rules 2011 as a 'form approved by the Chief Justice'.

Item 117 - Application and saving provisions

193. This item clarifies that amendments to section 86 of the Judiciary Act 1903 do not affect the validity of the Rules of Court made under paragraph 86(1)(d) of that Act and in force immediately before the commencement of this item.

Social Security (Administration) Act

Item 118 - Paragraph 144(s)

194. Section 144 of the Social Security (Administration) Act sets out a range of decisions made under the social security law that cannot be reviewed by the AAT. Paragraph 144(s) excludes from AAT review a decision relating to the power of the Secretary of the Department of Social Services under section 182 of the Social Security (Administration) Act to settle proceedings before the AAT.

195. Item 66 of Schedule 3 to the Tribunals Amalgamation Act renumbered the Secretary's power to settle AAT proceedings from section 182 to section 181. Consequential changes to paragraph 144(s) had not been made to reflect this change.

196. This item amends paragraph 144(s) of the Social Security (Administration) Act to refer to section 181 rather than section 182 of the Social Security (Administration) Act for accuracy.

Schedule 2 - Remote hearing amendments

Part 1 - Amendments

Family Law Act 1975

Item 1 - After subsection 97(2)

197. This item inserts a new subsection 97(2A) into the Family Law Act 1975 to provide that a person is taken to be present in court during a proceeding if the person accesses the proceeding by way of video link, audio link or other appropriate means.

198. Subsection 97(2) of the Family Law Act 1975 concerns the power of the Family Court of Australia, or another court when exercising jurisdiction under the Family Law Act 1975, by its own motion, or on application of a party to the proceedings, to exclude the presence of a specified individual, a specified class of persons, or all persons excepting parties to the proceedings, their representatives and any other persons as specified by the court, to part or all of the proceedings.

199. This item seeks to clarify that hearings conducted remotely are exercised in open court pursuant to subsection 97(2) of the Family Law Act 1975.

Item 2 - Validation of orders

200. This item provides that the amendments made by Part 1, Schedule 1 apply retrospectively to any orders made, or purported to have been made, under subsection 97(2) of the Family Law Act 1975 by a court exercising jurisdiction under that Act, during the period beginning on 15 March 2020 and ending on the day this item commences.

201. This item also declares the status and rights of all persons to be, and always have been, the same as if the Family Law Act as amended by this Part had been in force at the time the order was made.

Federal Circuit and Family Court of Australia Act 2021

Item 3 - After subsection 136(2)

202. This item inserts a new subsection 136(2A) into the proposed Federal Circuit and Family Court of Australia Act 2021 to provide that the circumstances in which the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) is exercised in an open court, include where the exercise of jurisdiction is made accessible to the public by way of video link, audio link or other appropriate means.

203. Subsection 136(2) provides that the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) must be exercised in open court. However, this rule does not apply where, as authorised by this Chapter of another law of the Commonwealth, the jurisdiction of the Court is exercised by a Judge of that Court sitting in Chambers.

204. This item seeks to clarify that hearings conducted remotely using videoconferencing technology are exercised in open court pursuant to subsection 136(2) of the Federal Circuit and Family Court of Australia Act 2021.

Item 4 - At the end of section 136

205. This item inserts a new subsection 136(8) in the Federal Circuit and Family Court of Australia Act 2021 to provide that reference in subsection 136(7) of that Act to a sitting of the Federal Circuit and Family Court of Australia (Division 2) includes a reference to a sitting of that Court is conducted by way of video link, audio link or other appropriate means.

206. Subsection 136(7) of the Federal Circuit and Family Court of Australia Act 2021 is concerned with the ability for the Federal Circuit and Family Court of Australia (Division 2) to order the exclusion of the public, or of persons specified by the Court from a sitting of that Court, if the Court is satisfied that the presence of the public or of those persons would be contrary to the interests of justice or prejudicial to the security of the Commonwealth.

207. In accordance with the operation of subsection 136(1) this item would not apply to family law or child support proceedings, which are covered by the operation of item 2 of this Schedule.

Federal Court of Australia Act 1976

Item 5 - After subsection 17(1)

208. This item inserts a new subsection 17(1A) into the Federal Court of Australia Act 1976 to provide that the circumstances in which the jurisdiction of the Federal Court of Australia is exercised in an open court, include where the exercise of jurisdiction is made accessible to the public by way of video link, audio link or other appropriate means.

209. Subsection 17(1) of the Federal Court of Australia Act 1976 provides that except where, as authorised by this Act or another law of the Commonwealth, the jurisdiction of the Court is exercised by a Judge sitting in Chambers, the jurisdiction of the Court shall be exercised in open court.

210. This item seeks to clarify that hearings conducted remotely are exercised in open court pursuant to subsection 17(1) of the Federal Court of Australia Act 1976.

Item 6 - At the end of section 17

211. This item inserts a new subsection 17(5) in the Federal Court of Australia Act 1976 to provide that reference in subsection 17(4) of that Act to a sitting of the Federal Court of Australia, includes a reference to a sitting of the Federal Court of Australia that is conducted by way of video link, audio link or other appropriate means.

212. Subsection 17(4) of the Federal Court of Australia Act 1976 is concerned with the ability for the Federal Court of Australia to order the exclusion of the public, or of persons specified by the Federal Court of Australia from a sitting of that Court, if the Court is satisfied that the presence of the public or of those persons would be contrary to the interests of justice.

Item 7 - Validation of orders

213. This item provides that the amendments made by Part 1, Schedule 1 apply retrospectively to any orders made, or purported to have been made, under subsection 97(2) of the Family Law Act 1975 by a court exercising jurisdiction under that Act, during the period beginning on 15 March 2020 and ending on the day this item commences.

214. This item also declares the status and rights of all persons to be, and always have been, the same as if the Federal Court of Australia Act as amended by this Part had been in force at the time the order was made.

Judiciary Act

Item 8 - After subsection 79(1)

215. This item inserts a new subsection 79(1A) which provides that for the purposes of subsection 79(1) of the Judiciary Act, a Court exercising federal jurisdiction in a proceedings is taken to be exercising federal jurisdiction in, if the proceeding is transferred or remitted, the State or Territory to which the proceeding is transferred or remitted, and otherwise in the State or Territory in which the proceeding was commenced.

216. Subsection 79(1) of the Judiciary Actconcerns the application of laws relating to procedure, evidence, and the competency of witnesses, which shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State of Territory in all cases in which they are applicable.

217. This item seeks to reduce uncertainty around the application of subsection 79(1) of the Judiciary Act where a proceedings is conducted by way of video link, audio link, or other appropriate means across State and Territory boundaries.

Item 9 - Application of amendments - section 79 of the Judiciary Act 1903

218. This item provides that the amendments to section 79 of the Judiciary Act made by this Schedule apply prospectively, in relation to a proceeding that is commenced on or after the commencement of this item.

Part 2 - Amendments contingent on the commencement of the Federal Circuit and Family Court of Australia Act 2020

Division 1 - Amendments

Family Law Act 1975

Item 10 - After subsection 97(1)

219. This item inserts a new subsection 97(1AA) in the Family Law Act 1975 which provides that in circumstances in which a proceeding in the Federal Circuit and Family Court of Australia, or in the Court of a Territory (other than the Northern Territory), is exercising jurisdiction under that Act, is heard in open court include where a proceeding is made accessible to the public by way of video link, audio link or other appropriate means.

220. Subsection 97(1) provides that subject to this Act, regulations and applicable Rules of Court, all proceedings in the Family Court, in the Federal Circuit Court of Australia, or in a court of a Territory when exercising jurisdiction under this Act should be heard in open court.

221. This item seeks to clarify that hearings conducted remotely are exercised in open court pursuant to subsection 97(1) of the Family Law Act 1975.

Division 2 - Validation of orders

Item 11 - Validation of orders made by the Federal Circuit and Family Court of Australia (Division 2)

222. This item provides that the amendments made by Part 1, Schedule 1 apply retrospectively to any orders made, or purported to have been made, under subsection 136(7) of the Federal Circuit and Family Court of Australia Act 2021 by the Federal Circuit and Family Court of Australia (Division 2), beginning on the day the Federal Circuit and Family Court of Australia Act commences and ending on the day this item commences.

223. This item also declares the status and rights of all persons to be, and always have been, the same as if the Federal Circuit and Family Court of Australia Act as amended by this Part had been in force at the time the order was made.

Item 12 - Validation of orders made by Federal Circuit Court of Australia

224. This item provides that the amendments made by Part 1, Schedule 1 apply retrospectively to any orders made, or purported to have been made, under subsection 13(7) of the Federal Circuit Court of Australia Act 1999 by the Federal Circuit Court of Australia, during the period beginning on 15 March 2020 and ending on the day that the Act is repealed.

225. This item also declares the status and rights of all persons to be, and always have been, the same as if at the time the order was made by the Federal Circuit Court of Australia under subsection 13(7), subsections 13(2) and 13(7) of the Federal Circuit Court of Australia Act 1999 provided that an exercise or jurisdiction in open court includes where it is made accessible to the public remotely, and a sitting of a Court includes one that is conducted remotely.

226. This item clarifies the retrospective application of the amendments made by Part 1, Schedule 1 despite repeal of the Federal Circuit Court of Australia Act 1999.

Part 3 - Amendments if the Federal Circuit and Family Court of Australia Act 2021 does not commence first

Division 1 - Amendments in the Federal Circuit and Family Court of Australia Act 2021 commences

Family Law Act 1975

Item 13 - Subsection 27(3)

227. This item repeals subsection 27(3), which provides that for the purposes of determining the law which applies to a split court is sitting, the Court is taken to be sitting at the place where the presiding Judge is sitting.

Item 14 - After subsection 97(1)

228. This item inserts a new subsection 97(1AA) in the Family Law Act 1975 which provides that in circumstances in which a proceeding in the Family Court or Federal Circuit Court of Australia, or in the Court of a Territory (other than the Northern Territory), is exercising jurisdiction under that Act, is heard in open court include where a proceeding is made accessible to the public by way of video link, audio link or other appropriate means.

229. Subsection 97(1) provides that subject to this Act, regulations and applicable Rules of Court, all proceedings in the Family Court, in the Federal Circuit Court of Australia, or in a court of a Territory when exercising jurisdiction under this Act, should be heard in open court.

230. This item seeks to clarify that hearings conducted remotely are exercised in open court pursuant to subsection 97(2) of the Family Law Act 1975.

Federal Circuit Court of Australia Act 1999

Item 15 - After subsection 13(2)

231. This item inserts a new subsection 13(2A) into the Federal Circuit Court of Australia Act 1999 to provide that the circumstances in which the jurisdiction of the Federal Circuit Court of Australia is exercised in an open court, include where the exercise of jurisdiction is made accessible to the public by way of video link, audio link or other appropriate means.

232. Subsection 13(2) of the Federal Circuit Court of Australia Act 1999 provides that the jurisdiction of the Federal Circuit Court of Australia must be exercised in open court. However, this rule does not apply where, as authorised by this Chapter of another law of the Commonwealth, the jurisdiction of the Court is exercised by a Judge of that Court sitting in Chambers.

233. This item seeks to clarify that hearings conducted remotely are exercised in open court pursuant to subsection 13(2) of the Federal Circuit Court Act 1999.

Item 16 - At the end of section 13

234. This item inserts a new subsection 13(8) in the Federal Circuit Court of Australia Act 1999 to provide that reference in subsection 13(7) of that Act to a sitting of the Federal Circuit Court of Australia includes a reference to a sitting of the Federal Circuit Court of Australia that is conducted by way of video link, audio link or other appropriate means.

235. Subsection 13(7) of the Federal Circuit Court of Australia Act 1999 is concerned with the ability for the Federal Circuit Court of Australia to order the exclusion of the public, or of persons specified by the Federal Circuit Court of Australia from a sitting of that Court, if the Court is satisfied that the presence of the public or of those persons would be contrary to the interests of justice or prejudicial to the security of the Commonwealth.

Item 17 - Validation orders

236. This item provides that the amendments made by this Part retrospectively apply to any orders made, or purported to have been made, under subsection 13(7) of the Federal Circuit Court of Australia Act 1999 by the Federal Circuit Court of Australia, during the period beginning on 15 March 2020 and ending on the day this item commences.

237. This item also declares the status and rights of all persons to be, and always have been, the same as if at the time the order was made by the Federal Circuit Court of Australia under subsection 13(7), subsections 13(2) and 13(7) of the Federal Circuit Court of Australia Act 1999 provided that an exercise or jurisdiction in open court includes where it is made accessible to the public remotely, and a sitting of a Court includes one that is conducted remotely.

Family Law Act 1975

Item 18 - Subsection 97(1AA)

238. This item omits reference to the "Family Court, in the Federal Circuit Court of Australia" in subsection 97(1AA) of the Family Law Act 1975, and substitutes it with a reference to the "Federal Circuit and Family Court of Australia" to reflect the changes to the structure of the federal family courts due to commence on 1 September 2021. Schedule 3 - Repeals

Schedule 3 - Repeals

Nauru (High Court Appeals) Act 1976

Item 1 - The whole of the Act

239. This item repeals the whole of the Nauru (High Court Appeals) Act 1976 so that the High Court of Australia is no longer able to hear appeals from the Supreme Court of Nauru.