Senate

Explanatory Memorandum

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

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Courts and Tribunals Legislation Amendment Bill 2020

1. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

2. The purpose of this omnibus Bill is to make a number of administrative amendments to improve the operation and clarity of various legislation.

3. The Bill is an omnibus bill which would amend the following Acts:

a.

Administrative Appeals Tribunal Act 1975

b.

Admiralty Act 1988

c.

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

d.

Child Support (Registration and Collection) Act 1988

e.

Family Law Act 1975

f.

Federal Circuit and Family Court of Australia Act 2021

g.

Federal Circuit Court of Australia Act 1999

h.

Federal Court of Australia Act 1976

i.

Foreign Judgments Act 1901

j.

Foreign States Immunities Act 1985

k.

International Arbitration Act 1974

l.

Judiciary Act 1903

m.

Military Rehabilitation and Compensation Act 2004

n.

Nauru (High Court Appeals) Act 1976

o.

Paid Parental Leave Act 2010

p.

Social Security (Administration) Act 1999

Amendments

4. Key amendments to the AAT Act include:

a.

harmonising procedural fairness requirements in relation to non agency parties in the Social Services and Child Support Division

b.

empowering the Social Services and Child Support Division to hold pre-hearing conferences, and

c.

updating provisions relating to the appointment and assignment of members on an acting basis, the constitution and reconstitution of the Tribunal, the appointment and authorisation of officers of the AAT to perform functions in relation to proceedings, the dismissal and reinstatement of proceedings, the correction of errors in the text of a decision, and the taxation of costs.

5. Amendments to the A New Tax System (Family Assistance) (Administration) Act 1999, Child Support (Registration and Collection) Act 1988, Paid Parental Leave Act 2010 and Social Security (Administration) Act 1999 standardise across all divisions the AAT's powers to issue summonses to require persons to give evidence or produce documents.

6. Amendments to the Child Support (Registration and Collection) Act 1988 also include amendments to clarify that, when the AAT reviews child support decisions about the percentage of care for a child, each parent or non-parent carer is able to apply for review of the decision and is automatically a party to the review.

7. Amendments to the Social Security (Administration) Act 1999 include a technical amendment to clarify numbering of a non-reviewable decision.

8. Amendments to the Commonwealth Electoral Act 1918 are consequential upon amendments to the Administrative Appeals Tribunal Act 1975 which authorise the constitution of the AAT with more than one member who is a Judge if an enactment so provides.

9. A technical amendment to the Military Rehabilitation and Compensation Act 2004 provides that a claimant is automatically a party to an application to the AAT made by the Chief of the Defence Force or the Military Rehabilitation and Compensation Commission for review of a decision of the Veterans' Review Board.

10. Amendments to the Admiralty Act 1988 bring the Admiralty Rules, as rules of court within the federal court system, into alignment with other rules of federal courts. Key amendments include:

a.

apply the Legislation Act 2003 to the Admiralty Act 1988 to align its application to the Admiralty Rules 1988 with its application to other rules of the federal courts

b.

apply these proposed amendments to rules made on or after the commencement of these changes, including rules in force immediately before commencement, and

c.

declare the Admiralty Rules to be rules of court for the avoidance of doubt.

11. The Bill makes minor amendments to the Family Law Act 1975, Federal Circuit Court of Australia Act 1999 (and as of 1 September 2021, the Federal Circuit and Family Court of Australia Act 2021), and Federal Court of Australia Act 1976 to clarify that hearings conducted remotely using videoconferencing technology are exercised in 'open court'.

12..

13. Amendments to the Judiciary Act 1903 reflect modern practices and terminology in the High Court of Australia, enhance consistency with the High Court Rules 2004, and clarify the power of the Court to prescribe forms other than in the Rules of Court. The Bill also amends section 79 of the Judiciary Act 1903 to clarify that a court shall be taken to be exercising federal jurisdiction in a proceeding in the State or Territory in which the proceeding was commenced.

14. Amendments to the Foreign States Immunities Act 1985 clarify the application of the Act to ex parte proceedings to ensure that foreign States are afforded appropriate procedural protections. Those procedural protections ensure that Australian courts can enter a judgment, register a foreign judgment, and recognise or enforce a foreign award against a foreign State consistently with Australia's obligations under international law to afford that foreign State immunity in certain circumstances.

15. The Bill repeals the Nauru (High Court Appeals) Act 1976 which was enacted to give effect to the Agreement between the Government of Australia and the Government of the Republic of Nauru relating to Appeals to the High Court of Australia from the Supreme Court of Nauru (the Agreement). It provided for appeals to the High Court of Australia from certain classes of decisions of the Supreme Court of Nauru. This Agreement was terminated on 13 March 2018 following the Government of Nauru providing formal notification of its intention to withdraw from the Agreement on 12 December 2017. The amendments remove the ability to hear appeals from the Supreme Court of Nauru in the High Court of Australia.

Human rights implications

16. The Bill enlivens the right to a fair hearing as set out in article 14 of the International Covenant on Civil and Political Rights (ICCPR), by amending the Federal Court of Australia Act 1976, the Federal Circuit Court of Australia Act 1999 (and as of 1 September 2021, the Federal Circuit and Family Court of Australia Act 2021), and the Family Law Act 1975 to clarify that hearings conducted remotely using videoconferencing technology are exercised in 'open court'.

17. COVID-19 restrictions have precipitated a move in Australia's federal courts to deliver remote access to justice more broadly, so as to ensure that necessary and urgent hearings can remain safe and accessible for Australians, without causing unnecessary delays.

18. By amending the definition of 'open court', these amendments seek to clarify the validity of remote hearings, and by extension, ensure that the court can continue to hear matters throughout the undefined COVID-19 period and beyond.

19. These amendments are done to ensure that a public hearing incorporates the principle that justice should not only be done, but be seen to be done, by subjecting legal proceedings to public scrutiny. The amendments also seek to ensure that individuals have access to courts in a timely and expeditious manner.

20. The Government considers that the amendments, on balance, increase the right to a fair trial.

Conclusion

21. This Bill is compatible with human rights as it does not raise any human rights issues.