Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Philip Ruddock MP)Notes on clauses
1. The short title of this Act is the Law and Justice Legislation Amendment Act 2004.
2. This clause provides a table that identifies the day of commencement for each item which is noted in the explanation for each item.
3. This clause provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule.
Schedule 1 - Amendments
Aboriginal and Torres Strait Islander Commission Act 1989
4. This item removes the power of judges to set fees under subclause 28(1) of Schedule 4 of the Aboriginal and Torres Strait Islander Commission Act. The subclause currently allows judges of the Federal Court to make rules about fees payable by parties bringing election petitions. Fees are usually prescribed by regulation rather than determined by judges. Following the repeal of subclause 28(1) fees will be prescribed by regulation (under section 60 of the Federal Court of Australia Act 1976) in accordance with usual Government practice.
5. This item commences at Proclamation or within 6 months of commencement of this Act, to allow time for the regulations to be made.
Administrative Decisions (Judicial Review) Act 1977
6. This item renumbers a paragraph as '(ya)' to correct a double reference to paragraph (z) in Schedule 1 of the Administrative Decisions (Judicial Review) Act.
7. This item commences immediately after the commencement of item 1 of Schedule 6 to the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002, which incorrectly added the second paragraph (z) to the Schedule.
8. Section 13 of the Act provides that a person who is entitled to bring proceedings under the Act in relation to a decision may seek a notice in writing from the person who made the decision setting out, in relation to the decision, the findings on material questions of fact, the evidence on which those findings were based and the reasons for the decision. Schedule 2 excludes certain classes of decisions from this provision.
9. Items 3 and 4 update Schedule 2 of the Administrative Decisions (Judicial Review) Act by removing the reference to the Housing Loans Insurance Corporation and the Aboriginal and Torres Strait Islander Commercial Development Corporation (which no longer exist), and adding a reference to Indigenous Business Australia (which replaced the latter).
10. These items commence the day after the Act receives the Royal Assent.
11. Subsection 3(1) of the Admiralty Act defines 'Civil Liability Convention' as the International Convention on Civil Liability for Oil Pollution Damage 1969 as amended by the 1976 Protocol or the 1984 Protocol. The 1984 Protocol never entered into force and was superseded by the 1992 Protocol and the 2000 amendments.
12. Item 5 updates the definition of 'Civil Liability Convention' in the Admiralty Act by direct reference to the relevant definition of 'the Convention' in the Protection of the Sea (Civil Liability) Act 1981. (This Act implements the Convention, and its amending protocols, into Australian domestic law.)
13. This item will commence the day after the Act receives the Royal Assent.
Australian Crime Commission Act 2002
14. These items update Schedule 2 of the Australian Crime Commission Act which lists certain bodies that are not subject to section 19A. Section 19A allows examiners to request information from Commonwealth agencies.
15. These items remove references to the Australian Shipping Commission, the Housing Loans Insurance Corporation, the Pipeline Authority, and the Superannuation Fund Investment Trust, which no longer exist.
16. These items commence the day after the Act receives the Royal Assent.
Australian Human Rights Commission Act 1986
17. This item rectifies a drafting error in subsection 36(10) by replacing the reference to 'subsection (1)' with a reference to 'subsection (2) or (3)'. The item ensures that the actions of persons who are acting as President or as a Human Rights Commissioner are valid notwithstanding any irregularity in connection with their appointment. This validation is consistent with acting appointments generally.
18. The commencement of this item is tied to the commencement of the Australian Human Rights Commission Legislation Bill 2003, which is currently before Parliament. If that Bill does not commence before this Bill receives the Royal Assent, then this amendment will not commence and the existing Human Rights and Equal Opportunity Commission Act 1986 will be amended instead (see Item 38).
19. Item 11 amends the Bankruptcy Act to allow affidavits used for the purposes of the Act to be sworn before locally engaged staff at Australian diplomatic and consular missions overseas (as authorised under paragraphs 3(c) and (d) of the Consular Fees Act 1955), that is, employees of the Commonwealth or the Australian Trade Commission authorised in writing by the Secretary of the Department of Foreign Affairs and Trade.
20. Item 12 makes a consequential amendment to the paragraph 262(2)(d) by replacing 'paragraph (aa), (a), (b) or (c)' with 'any of paragraphs (aa) to (c)', so as to include the new provisions in its scope. This means that affidavits may also be sworn before a person who is qualified to administer an oath in that place and who is certified by locally engaged staff at Australian diplomatic and consular missions overseas to be so qualified.
21. These items address the June 1997 Senate Foreign Affairs, Defence and Trade References Committee report Helping Australians Abroad - A review of the Australian Government's consular services by allowing more staff to undertake routine notarial acts such as witnessing and certifying certificates thereby allowing consular and diplomatic officers to spend greater time on non-administrative matters.
22. These items commence the day after the Act receives the Royal Assent.
23. This item corrects a drafting error in paragraph 15H(c) of the Crimes Act, which sets out the definition of a 'controlled operation', by replacing a reference to subsection 15I(3), which is an incorrect cross-reference, with a reference to subsection 15I(2).
24. This item commences immediately after the commencement of item 17 of Schedule 1 to the Measures to Combat Serious and Organised Crime Act 2001, which added paragraph 15H(c) to the Crimes Act.
Director of Public Prosecutions Act 1983
25. These items make minor changes to the Director of Public Prosecutions Act consequential on the establishment, by the Judiciary Amendment Act 1999, of the Australian Government Solicitor (AGS) as a separate legal entity to the Attorney-General's Department.
26. All items commence the day after the Act receives the Royal Assent.
27. Item 14 repeals the definition of 'relevant proceedings' in subsection 15(3) consequential on the repeal of subsection 15(2) by the Judiciary Amendment Act. (Subsection 15(2) contained the only reference to the term 'relevant proceedings' and therefore the definition is no longer required.)
28. Item 15 restructures subsection 32(1) (without altering its meaning or substance) consequential on the repeal of paragraph 32(1)(b).
29. Item 16 amends paragraph 33A(b), which deals with service of a process on the Director of Public Prosecutions, to replace a reference to service on officers of the Attorney-General's Department with a reference to service on authorised AGS lawyers.
30. Under section 170 of the Evidence Act, certain persons may give evidence of fact about certain listed technical matters (such as proof of business records, tags or labels). This includes 'authorised persons' as defined in section 171. Currently, where evidence is given outside Australia, only an Australian Diplomatic Officer or an Australian Consular Officer within the meaning of the Consular Fees Act 1955 exercising functions in that place may give this formal evidence.
31. This item amends the definition of 'authorised person' in the Evidence Act to address the June 1997 Senate Foreign Affairs, Defence and Trade References Committee report Helping Australians Abroad - A review of the Australian Government's consular services. The amendment will enable locally engaged staff at Australian diplomatic and consular missions overseas (as authorised under paragraphs 39c) and (d) of the Consular Fees Act 1955) to give evidence of fact thereby allowing consular and diplomatic officers to spend greater time on non-administrative issues.
32. This item commences the day after the Act receives the Royal Assent.
Federal Court of Australia Act 1976
33. These items amend the Federal Court of Australia Act to enhance the operational effectiveness and efficiencies of the Federal Court by ensuring that a single judge is able to deal with ancillary and interlocutory matters without the need to constitute a Full Court. All powers extended to single judges are existing powers exercised by the Full Court.
34. Item 18 amends subsection 20(5) of the Act, which provides that a single judge or a Full Court may make certain orders or directions, including an order that the matter be dismissed for failure to comply with a direction of the court (paragraph 20(5)(d)). The amendment will allow a single judge or a Full Court to also make an order that a matter be dismissed for failure of the applicant to attend a hearing relating to the matter.
35. This item also allows the Full Court or a single judge to make an order that varies or sets aside an order made under paragraphs 20(5)(c) (dismissing a matter for want of prosecution) or (d) (dismissing a matter for failure to comply with a direction or for failure of the applicant to attend a hearing relating to the matters). This means that any order dismissing a matter can be set aside and the matter reinstated.
36. Item 19 amends section 25 of the Act, which provides for the exercise of appellate jurisdiction. Section 25(2B) provides for certain powers to be exercised by a single judge or a Full Court. Subsection 25(2B) will be amended to provide that a single judge or a Full Court may make an order dismissing an appeal by reason of non-attendance at any hearing by the appellant. The amendment will also enable a single judge to set aside or vary such orders.
37. Item 20 is an application provision that means that the amendments made by items 18 and 19 only apply to matters (proceedings) or appeals that commence on or after the day on which those items commence.
38. These items commence the day after the Act receives the Royal Assent.
Foreign Proceedings (Excess of Jurisdiction) Act 1984
39. This item amends the definition of 'foreign court' in subsection 3(1) to remove the reference to the Judicial Committee of the Privy Council as the Privy Council as it is no longer an appellate court in the Australian legal system.
40. This item commences the day after the Act receives the Royal Assent.
41. This item amends subsection 8(3) to correct a drafting error by replacing all references to subsection (1) with references to subsection (2).
42. This item commences the day after the Act receives the Royal Assent.
Freedom of Information Act 1982
43. These items make minor amendments to the Freedom of Information Act and commence the day after the Act receives the Royal Assent.
44. Item 23 makes a minor modernisation of the drafting of the definition of 'request'. The amendment will remove 'in accordance with' and insert 'under'.
45. Item 24 makes an amendment to subsection 45(1). Section 45 was amended in 1991 to introduce new wording into subsection 45(1). However there appears to have been an oversight at the time and the reference to 'other than the Commonwealth' should in fact be to '(other than an agency or the Commonwealth)'. This is necessary because not all agencies covered by the Freedom of Information Act are part of the Commonwealth. The amendment will also bring subsection 45(1) into line with paragraph 45(2)(b) of the Act. This amendment corrects the drafting error.
46. Items 25 to 37 make minor amendments to Schedules 1, 2 and 3 to remove references to repealed legislation and abolished companies, replacing the latter with new companies where relevant.
Human Rights and Equal Opportunity Commission Act 1986
47. This item rectifies a drafting error in subsection 36(10) by replacing the reference to 'subsection (1)' with a reference to 'subsection (2) or (3)'. It ensures that the actions of persons who are acting as President or Human Rights Commissioner are valid notwithstanding any irregularity in connection with their appointment. This validation is consistent with acting appointments generally.
48. The commencement of this item is tied to the commencement of the Australian Human Rights Commission Legislation Bill 2003, which is currently before Parliament. If that Bill commences before this Act receives the Royal Assent, then this amendment will not commence and the Australian Human Rights Commission Act 1986 will be amended instead (see Item 10).
Industrial Relations (Consequential Provisions) Act 1988
49. This item has the effect of abolishing the Australian Industrial Court with effect 31 August 1998. Section 79 of the Act provides for the court to continue in existence as if it had not been repealed by the Conciliation and Arbitration Act 1904. This was to continue its existence for the purpose of certain administrative matters associated with existing judicial appointments. As the last remaining Judge resigned on 31 August 1998, there is no longer a requirement to maintain the Court.
50. This item commences on 31 August 1998.
International Arbitration Act 1974
51. These items amend section 4 of the International Arbitration Act which gives approval for Australia's accession to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in 1958 by the United Nations Conference on International Commercial Arbitration. As that accession took place on 26 March 1975 this approval has been spent and can be removed.
52. The items also make consequential amendments to subsections 2(1) and 10(2) to remove references to section 4.
53. These items commence the day after the Act receives the Royal Assent.
54. This item repeals subsection 55U(3) of the Judiciary Act which refers to giving advice to certain persons instead of those listed under paragraph 5(2)(a) of the Remuneration Tribunal Act 1973. As paragraph 5(2)(a) has been repealed and not replaced, the proposed amendments will repeal subsection 55U(3).
55. This item will commence the day after the Act receives the Royal Assent.
56. Section 13 of the Law Officers Act allows the Solicitor-General, in his or her official capacity, to practise as a barrister in any federal court, any court exercising federal jurisdiction or in any Territory court. While the majority of the Solicitor-General's current work relates to matters in federal courts or in State courts exercising federal jurisdiction, it is possible that the Solicitor-General may be briefed to appear in a State court exercising State jurisdiction. In particular, in light of the High Court's decision in Re Wakim; Ex parte McNally (1999)
73 ALJR 839
, there may be some matters arising in State courts exercising State jurisdiction (eg cases arising under the transitional provisions of the new Corporations Act) where the Commonwealth may wish the Solicitor-General to appear.
57. Item 44 amends section 13 of the Act to allow the Solicitor-General to appear in (a) State courts (whether exercising State or Federal jurisdiction) and (b) Commonwealth, State and Territory tribunals.
58. This item will commence the day after the Act receives the Royal Assent.
59. This item amends subsection 17(6) of the Law Officers Act to update the reference to the Telephonic Communications (Interception) Act 1960 by replacing it with a reference to the Telecommunications (Interception) Act 1979. This will ensure that the prohibition on delegating the power to issue telecommunications interception warrants remains and that this power must be exercised by the Attorney-General. (The power to issue warrants under the Telecommunications (Interception) Act has not been delegated.)
60. This item will commence the day after the Act receives the Royal Assent.
Legislative Instruments Act 2003
61. These items make minor amendments to the Legislative Instruments Act and commence immediately after the commencement of section 3 of the Legislative Instruments Act, so that the amendments are in place as soon as the Act commences.
62. Item 46 makes a minor amendment to item 20 of the table in subsection 7(1), which sets out the instruments that are not legislative instruments for the purposes of the Act. The amendment removes a comma which had the unintended effect of narrowing the range of instruments covered by the item.
63. Item 47 makes a minor amendment to subsection 7(2) to clarify its intended meaning.
64. Item 48 amends subparagraphs 42(2)(b)(i) and 42 (3)(c)(i) to remove the reference to motions to disallow being deferred. The amendments are consequential on the removal of section 43 from the Act (which would have dealt with deferring motions to disallow). Section 43 was removed during the debate on the Legislative Instruments Act.
65. Item 49 makes clear that listing instruments in the table in section 44 which provides exemptions from the disallowance regime, does not make them legislative instruments. Whether an instrument is a legislative instrument depends on whether the instrument meets the definition of legislative instrument in the Act. The amendment makes clear that, if an instrument does not fall within the definition, there can be no argument that its inclusion in section 44 makes it a legislative instrument.
66. Item 50 makes clear that listing instruments in the table in section 54 which provides exemptions from the disallowance regime, does not make them legislative instruments. Whether an instrument is a legislative instrument depends on whether the instrument meets the definition of legislative instrument in the Act. The amendment makes clear that, if an instrument does not fall within the definition, there can be no argument that its inclusion in section 54 makes it a legislative instrument.
67. Sections 187, 194 and 199D of the Native Title Act provide for the inspection of certain registers which are to be established and kept by the Native Title Registrar for the National Native Title Tribunal. Subsections 187(2), 194(2) and 199D(2) provide for inspection of such registers by members of the public upon payment of a prescribed fee.
68. These items repeal these subsections to enable public access to the registers free of charge. It is no longer considered appropriate to require payment of a fee for such access, particularly given that the Tribunal is currently able to provide extensive information services free of charge under other provisions of the Native Title Act. The imposition of a specific fee for access to the registers is difficult to administer and runs counter to the objective of increasing access to information on native title processes. Removal of the reference to prescribed fees would also facilitate the provision of on-line access to information from the registers.
69. These items commence the day after the Act receives the Royal Assent.
Public Order (Protection of Persons and Property) Act 1971
70. This item amends section 13A of the Public Order (Protection of Persons and Property) Act. Section 13A defines 'court premises' for the purposes of, among other things, identifying the area within which certain protective powers might be exercised.
71. These items clarify the definition to cover premises that are occupied or used, whether permanently, temporarily, under a lease or otherwise in connection with the sittings, or any other operation, of the court.
72. This item will commence the day after the Act receives the Royal Assent.
Statutory Declarations Act 1959
73. Paragraph 8(a) of the Statutory Declarations Act provides that a statutory declaration made under the Act must be in the form set out in the Schedule to the Act. This item amends the paragraph to provide that a statutory declaration must be in a prescribed form (which would be set out in regulations) rather than in the form in the Schedule. The Schedule containing the form will also be removed. This will allow the form to be revised as necessary in keeping with contemporary drafting practice.
74. These items commence at Proclamation or within 6 months of commencement of this Act, to allow time for the regulations to be made.
75. These items amend section 415, and subsection 340(3) of Schedule 1B, of the Workplace Relations Act to ensure that a single judge or the Full Court have the same powers when acting under the Workplace Relations Act as under the Federal Court of Australia Act 1976. These items include an application provision that means that the amendments only apply to matters (proceedings) that commence on or after the day on which those items commence.
76. These items commence the day after the Act receives the Royal Assent.
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