Senate

Explanatory Memorandum

(Circulated by authority of the Attorney General, Senator the Hon George Brandis QC)

SCHEDULE 4-COURT SECURITY

GENERAL OUTLINE

155. Schedule 4 will make amendments to the Court Security Act 2013 and make related amendments to the Family Law Act 1975.

156. The Court Security Act will be amended to provide for the retention and disposal of unclaimed items seized by court security officers and to clarify the processes by which court security orders made under the Act can be varied and revoked.

157. Amendments will be made to the Family Law Act to clarify the appeal rights available for court security orders made by the Family Court, and to create an appeal pathway for individuals to challenge court security orders made by the Family Court of Western Australia.

Court Security Act 2013

Item 1: Subsection 16(4)

158. Section 16 deals with how a security officer or an authorised court officer should handle dangerous items that are requested to be left for safekeeping or seized while the person is on court premises.

159. Subsection 16(4) currently provides that if a dangerous item is seized under subsection 16(3) by a security officer or an authorised court officer, he or she 'must' give the item to a police officer as soon as reasonably practicable.

160. Item 1 will amend subsection 16(4) to relax the current obligation on a security officer or an authorised officer to give a seized item to a police officer. The amendment will instead provide that a security officer or an authorised court officer 'must take reasonable steps' to give the item to a police officer as soon as reasonably practicable.

161. In practice, police officers are reluctant to receive knives and other potential weapons where there is no offence provision which covers the confiscation. This amendment will ensure that security officers or court security officers will not be in breach of their obligations under the Act if a police officer refuses to receive these dangerous items.

Item 2: At the end of section 16

162. Item 2 will add a note at the end of section 16 to direct the reader to section 48A, which also deals with disposal of items given up on request, or seized, under section 16.

163. Item 10 will insert new section 48A, which will provide the courts with authority to dispose of dangerous items given up on request or seized under section 16.

Item 3: Paragraph 27(3)(a)

164. Section 27 of the Court Security Act 2013 deals with the power to seize dangerous items.

165. Paragraph 27(3)(a) currently provides that if a dangerous item is seized under section 27 by a security officer, the security officer must ensure that the item is given to a police officer as soon as reasonably practicable.

166. This item will amend paragraph 27(3)(a) to relax the obligation to ensure that a seized item is given to a police officer by omitting 'ensure that the item is given' and substituting 'take reasonable steps to give the item' to a police officer.

167. In practice, police officers are reluctant to receive knives and other potential weapons where there is no offence provision which covers the confiscation. This amendment will ensure that security officers will not be in breach of their obligations under the Act if a police officer refuses to receive these dangerous items.

Item 4: At the end of section 27

168. This item will add a note at the end of section 27 to direct the reader to section 48A of the Court Security Act 2013, which also deals with disposal of items given up on request, or seized, under section 27.

169. Item 10 will insert new section 48A, which will provide the courts authority to dispose of dangerous items seized under section 27.

Item 5: At the end of subsection 41(1)

170. Subsection 41(1) of the Court Security Act 2013 provides for the making of court security orders. This item will add three notes at the end of subsection 41(1). The notes will assist readers to locate related provisions.

171. Note 1 will direct the reader to section 43 for interim court security orders.

172. Note 2 will direct the reader to section 45 for variation or revocation of a court security order.

173. Note 3 will direct readers to see Part X of the Family Law Act 1975 for appeals from the making of a court security order made by a member of the Family Court of Australia or the Family Court of Western Australia. It will also direct readers to see Division 2 of Part III of the Federal Court of Australia Act 1976 for appeals from the making of a court security order made by a member of the Federal Circuit Court of Australia.

Item 6: Section 45

174. Section 45 of the Court Security Act 2013 currently provides that a member of the court who may make a court security order may vary or revoke a court security order.

175. This item will amend section 45 by providing that a court security order may be varied or revoked 'on application under section 45A'. This is a consequential amendment, which reflects the insertion of new section 45A to be inserted by item 8.

Item 7: At the end of section 45

176. Section 45 of the Court Security Act 2013 provides a member of a court who may make a court security order with the power to vary or revoke a court security order relating to the member's court.

177. Item 7 will add a note to the end of section 45. The note will direct readers to see Part X of the Family Law Act 1975 for appeals from the variation or revocation of a court security order made by a member of the Family Court of Australia or the Family Court of Western Australia. It will also direct readers to see Division 2 of Part III of the Federal Court of Australia Act 1976 for appeals from the variation or revocation of a court security order made by a member of the Federal Circuit Court of Australia.

178. The note will assist readers to locate provisions relevant to the variation or revocation of a court security order.

Item 8: After section 45

179. Court security orders are made under Part 4 of the Court Security Act 2013. They are similar in nature to restraining orders under state and territory legislation. These orders restrict the behaviour of a specified person in or around court premises, or in relation to a member or official of a court. Section 45 currently provides that a member of the court who may make a court security order may vary or revoke a court security order. However, it does not provide a procedure by which any other parties may apply to have such orders varied or revoked.

180. Item 8 will insert new section 45A, which will provide a process by which court security orders can be varied or revoked. Given the potentially serious implications for persons against whom court security orders are made, it is important that there is clarity about what review and appeal rights are available in relation to such orders.

181. Subsection 45A(1) will provide that either the administrative head of a court or the person specified in a court security order may make an application for a variation or revocation of a court security order.

182. Subsection 45A(2) will provide that the party who makes an application seeking the variation or revocation will be required to notify the other party of that intention, and both parties will be entitled to be heard on the application.

Item 9: Application of section 45A of the Court Security Act 2013

183. Item 9 will provide that section 45A applies to the variation or revocation, on or after the commencement of section 45A, of court security orders made before, on or after the commencement of section 45A.

184. Section 45A (to be inserted by item 8) will provide for the making of applications for the variation or revocation of court security orders.

Item 10: After section 48

185. The Court Security Act 2013 currently provides that dangerous items that are given up on request or seized by a security officer or an authorised court officer under sections 16 and 27 must either be returned to the person upon request or given to a police officer. However, in practice many people do not seek the return of their items. Police officers are also generally reluctant to receive knives and other potential weapons where there is no offence provision which covers the confiscation. Further, the Court Security Act does not currently provide the courts with authority to dispose of these items. This has led to concerns about the accumulation of unclaimed dangerous items by the courts over an indefinite period of time.

186. Item 10 will insert new section 48A, which will give the courts clear authority to dispose of dangerous items given up or seized under the Court Security Act.

187. Subsection 48A(1) will provide that if a dangerous item is held after being given up on request or seized under section 16 or seized under section 27 of the Court Security Act, and that item is uncollected, abandoned or unclaimed for a period of 6 months, the item may, by order of the administrative head of the court, be destroyed or otherwise disposed of. This will ensure that the courts have the power to hold and dispose of dangerous items. The period of six months is a reasonable period of time within which a person may seek the return of the person's item.

188. To ensure constitutional validity of acquisition powers, and to protect people against unjust acquisitions under subsection 48A(1), subsections 48A(2) and (3) will require the Commonwealth to pay reasonable compensation if the disposal of items would result in an acquisition of property otherwise than on just terms. Where the Commonwealth and a person disagree over the amount of the compensation, the person may take the matter to a court of competent jurisdiction, to determine reasonable compensation.

Item 11: Application of section 48A of the Court Security Act 2013

189. Item 11 will provide that section 48A of the Court Security Act 2013 applies to the disposal on or after the commencement of section 48A, of items given up or seized before, on or after the commencement of section 48A. This will enable the courts to dispose of items that have already been held for a significant amount of time.

190. Section 48A (to be inserted by item 10) will provide for the disposal of dangerous items.

Family Law Act 1975

Item 12: At the end of subsection 94(1)

191. Subsection 94(1) of the Family Law Act 1975 sets out when an appeal lies to a Full Court of the Family Court from certain courts other than the Federal Circuit Court and the Magistrates Court of Western Australia.

192. This item will add a note at the end of subsection 94(1). The note provides that subsection 94(1) applies to appeals from the making, variation and revocation of court security orders under the Court Security Act 2013 as described in section 94AB of the Family Law Act.

193. This item is consequential to the insertion of new section 94AB (to be inserted by item 14) and will refer readers to this new provision.

Item 13: At the end of subsections 94AAA(1A)

194. Subsection 94AAA(1A) of the Family Law Act 1975 sets out when an appeal lies to the Family Court from the Magistrates Court of Western Australia.

195. Item 13 will add a note at the end of subsection 94AAA(1A). The note provides that subsection 94AAA(1A) applies to appeals from the making, variation and revocation of court security orders under the Court Security Act 2013 as described in new section 94AB (to be inserted by item 14).

196. This item is consequential to the insertion of new section 94AB.

Item 14: After section 94AA

197. Part X of the Family Law Act 1975 deals with appeals in the family law jurisdiction. Under the existing provisions, there are no appeal rights for court security orders made by the Family Court or the Family Court of Western Australia.

198. Item 14 will create an appeals pathway for the Family Court and the Family Court of Western Australia by inserting new section 94AB. This new section will provide that appeals in relation to the making, variation or revocation of a court security order made by the Family Court or the Family Court of Western Australia may be appealed in the same way as other orders made by those courts if they are exercising family law jurisdiction.

199. Subsection 94AB(1) will provide that section 94AB deals with how Part X of the Family Law Act is applied to the making, variation or revocation of a court security order under Part 4 of the Court Security Act 2013 by a member (as defined in the Court Security Act) of the Family Court or the Family Court of Western Australia.

200. Subsection 94AB(2) will provide that such a decision can be appealed as if it were a decree of the Family Court or the Family Court of Western Australia exercising original jurisdiction under the Family Law Act. Subsection 94AB(2) will contain a legislative annotation, which notes that if the member is a member of the Family Court or a member of the Family Court of Western Australia other than a Family Law Magistrate of Western Australia, then an appeal from such a decision lies under subsection 94(1) of Part X of the Family Law Act.

201. If a court security order is made, varied or revoked by a member of the Family Court of Western Australia and he or she is a Family Law Magistrate of Western Australia, then subsection 94AB(3) will apply.

202. Subsection 94AB(3) will provide that such decisions may be appealed under Part X as if it were a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia exercising original jurisdiction under the Family Law Act. Further, proceedings for the making, variation or revocation of a court security order are taken to be proceedings in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia. The legislative annotation at the end of subsection 94AB(3) will note that an appeal in this circumstance lies under subsection 94AAA(1A) of Part X of the Family Law Act.

Item 15: Application of section 94AB of the Family Law Act 1975

203. Item 15 will provide that section 94AB (to be inserted by 14) applies to appeals instituted on or after the commencement of that section from the making, variation and revocation of court security orders before, on or after that commencement. This will ensure that such appeals can only be brought once section 94AB has commenced.

204. Section 94AB will provide for appeals relating to court security orders.