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Law and Justice Legislation Amendment Bill 1996
House: House of Representatives
Commencement: Upon Royal Assent except as follows:
Items 1 and 3-6 of Schedule 1, items 4,5 and 9-16 of Schedule 14 and items 1-6 and 8-11 of Schedule 16 which commence on a day (or on days) to be fixed by Proclamation or on the day after 6 months following Royal Assent, whichever is sooner.
This is an omnibus Bill that will amend a number of Acts falling within portfolio of the Attorney-General and Minister for Justice. The major amendments :
. establish a Small Taxation Claims Tribunal;
. expand the jurisdiction of the Federal Court; and
. allow specified child support measures to be dealt with as part of the consensual 'parenting plans' available via the Family Court.
As there is no central theme to the Bill, the background to each major amendment will be explained in the relevant part of the Main Provisions section below.
Schedule 1 - Amendment of the Administrative Appeals Tribunal Act 1975
In November 1993, the Joint Committee of Public Accounts (JCPA) in its Report No. 326 An Assessment of Tax, recommended that:
the current taxation law of Australia be amended to allow the establishment of a Small Taxation Claims Tribunal within the registry of the Administrative Appeals Tribunal. 1
It further recommended that taxpayers be permitted:
to lodge objections against, or seek review of, decisions of the Australian Taxation Office before a Small Taxation Claims Tribunal. 2
Other recommendations included:
. the imposition of a $50 non-refundable fee payable by taxpayers electing to use the Small Taxation Claims Tribunal;
. having a jurisdictional limit of $5,000 for matters determined by the Small Taxation Claims Tribunal; and
. permitting the Australian Taxation Office (ATO) to refer matters from the Small Taxation Claims Tribunal to the Federal Court provided that it meets all the taxpayer's costs (including legal costs) in doing so. 3
The Law and Justice Legislation Amendment Bill (No. 2) 1995 sought to implement the above recommendations, however, the Bill lapsed when Parliament was prorogued in December 1996.
Items 1-3 establish a new tribunal, called the Small Taxation Claims Tribunal, to hear certain types of taxation disputes. Disputes for amounts under $5,000 may be heard by the Tribunal, but proposed section 24AD provides that if the parties cannot agree on the amount of the dispute and the Tribunal considers that the amount is above the $5,000 limit, it may decline jurisdiction until the (normal) higher application fee is paid.
Item 4 requires the Registrar (or a District Registrar or Deputy Registrar as the case may be) to issue the applicant taxpayer a statement setting out the mediation processes available. Proposed subsection 34A(1A)(b) allows the Tribunal to recommend (and if the parties consent, to direct) that the proceedings be dealt with by mediation if the Tribunal considers that this will assist in resolving the dispute.
Item 6 inserts a new provision that requires the Small Taxation Claims Tribunal, when deciding whether to refer a matter to the Federal Court, to take into account the interests of the taxpayer that is seeking a review of a decision of the ATO.
Schedule 2 - Amendment of the Classification (Publications, Films and Computer Games) Act 1995
Item 1 expands the definition of 'contentious material' in the Classification (Publications, Films and Computer Games) Act 1995 (the 'C(PFCG) Act') to include material in a film or computer game that a 'reasonable adult' would consider unsuitable for viewing by a person under 15. The term 'reasonable adult' is not defined in the C(PFCG) Act.
Items 2 and 5 together provide that if a film or computer game contains contentious material that was not brought to the attention of the Classification Board when it was making its decision about the appropriate classification and if it had been brought to their attention, a different classification would have been given, then the original classification is taken never to have been made.
Item 3 includes a new requirement for applicants seeking to have a film or computer game classified, to disclose particulars of all contentious material in the product and the means by which it may be accessed. This is intended to cover the situation, for example, in a computer game where there may be several options depending upon the player's choices. Without such a disclosure provision, the Classification Board might not be aware of all the options and therefore might even know of the existence of particular contentious material.
Item 6 adds to the list of advertisements that will be unsuitable in paragraph 29(4)(b), those that depict a child (or a person who looks as though they are a child) under 16 in such a way as to cause offence to a reasonable adult.
Item 7 proposes an amendment to existing section 94 of the C(PFCG) Act, which defines 'censor'. The amendment will expand the category of people defined as a 'censor' for the purposes of the Act to include those persons so classified under the respective legislation of New South Wales, the Australian Capital Territory and the Northern Territory.
Schedule 3 - Amendment of the Complaints (Australian Federal Police) Act 1981
Items 2 and 3 amend subsection 59(1) of the Complaints (Australian Federal Police) Act 1981 to allow a member of the Disciplinary Tribunal (other than someone who holds a judicial office or a Magistrate's office) to be paid in accordance with the Remuneration Tribunal's determination. In the absence of such a determination then the amount payable to the member may be prescribed. All existing determinations or regulations prescribing remuneration remain in force and are not affected by this proposed change.
Schedule 4 - Amendment of the Crimes Act 1914
Item 1 simply corrects a reference in subsection 3B(2) of the Crimes Act 1914 that currently refers to a 'non-existent' section 18A.
Schedule 5 - Amendment of the Death Penalty Abolition Act 1973
The existing provisions of the Death Penalty Abolition Act 1973purport to apply in the Territories of Papua and New Guinea. These provisions (ie subsections 3(3) and the reference in subsection 3(2)) have conflicted with the Papua New Guinea Independence Act 1975 since its enactment. Items 1 and 2 repeal the subsections and correct this anomaly.
Schedule 6 - Amendment of the Evidence Act 1995
Items 1-3 make minor non-technical amendments to the Evidence Act 1995.
Subsection 68(4) deals with the issue of costs and in NSW the law requires legal practitioners to enter into a costs agreement with their clients, in advance of undertaking any work for a client.
Item 4 amends the note at the bottom of subsection 68(4) to indicate that NSW law differs from the Commonwealth law in this respect.
Item 9 repeals section 107, (a modified version of which is inserted by Item 11) which deals with an exception to the rule against hearsay.
Generally any evidence of a prior 'consistent' statement made by a witness is inadmissible because it adds nothing and because it often offends the rule against hearsay. There are, however, some exceptions to this general rule. Similarly, generally evidence of a witness's 'good character' (other than an accused's good character) is inadmissible unless that character has been attacked, in which case it is possible to adduce evidence of good character to rebut the attack.
Item 11 substitutes new section 108A. This provides that a person whose prior statement has been admitted under one of the exceptions to the rule against hearsay but who is not called as a witness, can only be 'attacked' by evidence led as to that person's credibility if the evidence has 'substantial probative value'.
Existing section 128 deals with the circumstances during which a witness can claim privilege against self-incrimination in other proceedings. The provision allows a witness to object to giving certain evidence (on the grounds that they may incriminate themselves). However, even . if the witness objects, the court may require them to give the evidence:
. if the evidence is likely to prove that the witness committed an offence against an Australian law (or that the witness might be liable for a civil penalty); AND
. if the interests of justice require.
If this situation occurs then the court must give the witness a certificate that provides immunity against prosecution for the criminal offence or liability for the civil penalty.
Item 14 extends the coverage of certificates issued in the above manner by prescribed provisions in State and Territory laws. New subsections 128(10)-(13) will make the certificates effective as if they had been issued under section 128. That is, they will provide immunity against prosecution in:
. proceedings in an ACT court;
. proceedings in a federal court;
. for Commonwealth and ACT offences; and
. for the recovery of civil penalties under a Commonwealth or ACT law.
Items 15-19 clarify the differences between the Commonwealth and the NSW law on evidence.
Items 20-24 make minor amendments, including the insertion of a definition of the 'credibility of a person who has made a representation' under new section 108A.
Schedule 7 - Amendment of the Family Law Act 1975
Existing paragraph 39 of the Family Law Act 1975 vests State and Territory Supreme Courts with jurisdiction to determine certain specified matters under the Act. Items 1 and 2 extend the jurisdiction of those courts (Item 1) and to courts of summary jurisdiction (Item 2) to include the jurisdiction to determine matters arising under the regulations on the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption. 4
The Family Law Act 1975 provides that a written agreement may be reached by the parents of a child or children concerning their ongoing welfare. The 'parenting plan' can cover issues such as the residence, contact, and maintenance of the child or children and other areas of parental responsibility. Once finalised, a parenting plan may be registered (existing section 63E) in the Family Court provided that the court 'considers it appropriate to do so having regard to the best interests of the child to which the plan relates'. The current provisions require agreements regarding child maintenance to be done separately under the Child Support (Assessment) Act 1989.
Item 5 proposes a section 63CAA (although there is currently no section 63CA) which the Explanatory Memorandum (at p14) states is 'inserted to make it clear on the face of the legislation that one agreement may constitute both a parenting plan under the Act, and a child support agreement under the Child Support (Assessment) Act 1989.
Item 8 is a consequential amendment to section 69N(1)(a) arising because of the changes proposed in Item 5. Currently, when the parties are each seeking different orders, a court of summary jurisdiction does not have automatic jurisdiction and must obtain the consent of the parties prior to determining the case or refer the case to a higher court (eg the Family Court). Given that Item 5 will enable child maintenance issues to be included in the parenting plan, the amendment proposed in Item 8 (to exempt disputed child maintenance issues from the need to either obtain consent or refer the matter to a higher court) is required as these issues still fall with the jurisdiction of a court of summary jurisdiction.
Items 11, 12 and 13 extend the list of topics that the judges of the Family Court may make rules (that are not inconsistent with the Family Law Act 1975) to include matter relating to trial management and conciliation conferences.
Schedule 8 - Amendment of the Federal Court of Australia Act 1976
Existing section 18N(1) sets out who will be the officers of the court. For example, each Federal Court will have a District Registrar and a Sheriff but the number of Deputy Registrars and Deputy Sheriffs will vary according to the needs of the particular court. Item 1 will allow the Federal Court to appoint Marshals as officers of the court. Marshals have certain powers to arrest and detain ships (to recover specified expenses, including the Marshal's legal costs in taking such action) under the Admiralty Act 1988.
Existing section 24(1)(b) vests the jurisdiction in the Federal Court to hear appeals from judgments of the Supreme Court of a Territory. Existing section 252 of the ACT Electoral Act 1992 vests the ACT Supreme Court with the jurisdiction to hear disputes about the validity of ACT elections. Whilst determining such disputes the ACT Supreme Court is known as the Court of Disputed Returns. Item 2 will prevent appeals from the ACT Supreme Court sitting as the Court of Disputed Returns from being heard by the Federal Court.
The Federal Court held, in R v L (1994) 122 ALR 464, that the references in section 30A of the Federal Court of Australia Act 1976 to 'Attorney-General' and 'Director of Public Prosecutions' were references to the Commonwealth Attorney-General and Director of Public Prosecutions respectively. The result of this construction was that the ACT Attorney-General and the ACT Director of Public Prosecutions were not authorised to appeal on questions of law to the full Federal Court decisions of the ACT Supreme Court. The effect of Items 3 and 4 will be to allow 'an appropriate authority' (ie like the ACT Attorney-General and the ACT Director of Public Prosecutions) to submit cases to the Federal Court. Item 6 inserts a definition of an 'appropriate authority'.
Existing paragraph 30A(6)(a) makes it a contempt of court to publish a report of a submission made to the Full Court (after a person has been tried on indictment and acquitted either in whole or in part). This might have the effect of making some law reports in contempt of court and so
Item 5 repeals the section and replaces it with one that makes it clear that reports of proceedings, provided that they don't identify the parties, are lawful.
Items 7 to 11 inclusive amend parts of section 32W which deal with the enforcement of New Zealand judgments by the Federal Court. The proposed amendments set out how the conversion from New Zealand currency to Australian currency is to be calculated and will allow the cost of obtaining evidence from a foreign exchange dealer to be included in the amount recoverable.
Schedule 9 - Amendment of the Foreign Judgments Act 1991
The proposed amendments to the Foreign Judgments Act 1991 are consistent with the amendments proposed above (Items 7 to 11 of Schedule 8) with respect to New Zealand judgments. That is, they propose a systematic method for calculating the conversion from foreign currency to Australian currency and allow the cost of obtaining evidence from a foreign exchange dealer, about the conversion rate, to be included in the amount recoverable.
Schedule 10 - Amendment of the Judge's Pensions Act 1968
The Constitution provides in Section 72 that the Justices of the High Court and of the other courts created by the Parliament:
(ii) Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity:
iii) Shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office.
The proposed amendment to the Judge's Pensions Act 1968 will alter subsection 5(1) so that as long as a Judge holds any office as a Judge or holds any remunerated (full-time) judicial office in relation to a Territory they continue to be regarded as a Judge that has not yet retired for the purposes of the Act. If this proposed amendment effectively reduces the remuneration entitlements of any Judge then it would be unconstitutional.
Schedule 11 - Amendment of the Judiciary Act 1903
The Constitution confers substantial original jurisdiction in federal matters upon the High Court and also makes the High Court the ultimate court of appeal within Australia.
Item 1 amends subsection 39B(1) of the Judiciary Act 1903 so as vest original jurisdiction in the Federal Court to hear certain matters. These include:
. matters where the Commonwealth is seeking an injunction or declaration;
. matters arising under or involving the interpretation of the Constitution; and
. matters arising under any laws made by the Parliament.
At the moment the High Court has jurisdiction (by virtue of sections 75 and 76 of the Constitution and section 30 of the Judiciary Act 1903 ) to hear these matters.
Item 2 inserts new section 55H which will allow the State or ACT or NT Government Department's costs for legal services (and disbursements) provided to a person or body to be recovered by that person or body (in the event that they are awarded costs) as if they were legal costs.
Schedule 12 - Amendment of the Jurisdiction of Courts (Cross-vesting) Act 1987
Items 1-4 amend various provisions so as to include both the Australian Capital Territory and the Northern Territory in the definition of 'State' and 'Territory' for the purposes of the act.
Schedule 13 - Amendment of the Privacy Act 1988
Item 1 inserts a definition of 'guarantee' into subsection 6(1).
Item 2 amends subsection 11B(1) so that an agency that is carrying on a business of making loans (and who is determined, and thus gazetted under Item 4, by the Privacy Commissioner to be a credit provider for the purposes of the Privacy Act 1988) is caught by the provisions of the Privacy Act 1988. Item 3 then provides that such an agency is caught by the provisions of Part IIIA of the Act (which deal specifically with credit providers) and not the broader Information Privacy Principles found in section 14.
Existing section 18E deals with the sort of information that is not permitted to be held in a person's credit information file by the credit provider. Item 5 will insert a provision which allows information relating to an overdue payment by a defaulter which the person (whilst acting as a guarantor) becomes liable for but has not paid, to remain on their file provided that certain conditions are met. These are that:
. the credit provider is not prevented under any law of the Commonwealth, a State or a Territory from suing the defaulter (ie other than the guarantor) to recover the overdue payment;
. the credit provider has given notice to the person that the payment is overdue and 60 days have passed since the notice was given; and
. the credit provider has taken all steps to recover the overdue payment from the original defaulter;
Item 8 sets a limit of five years as the maximum amount of time that records of the above matter (in item 5) may be held. If the credit reporting agency was notified of the overdue payment before 25 February 1992 then the five year period commences on that date, otherwise the period commences when the credit reporting agency is notified.
Existing section 44 deals with the powers of the Privacy Commissioner to obtain information and documents relating to an investigation. Item 10 will insert a provision that allows the Privacy Commissioner to make copies of documents and retain possession of the original documents for as long as necessary. Persons who would ordinarily be entitled to inspect the documents will be allowed to inspect them whilst they are in the possession of the Privacy Commissioner.
Schedule 14 - Amendment of the Service and Execution of Process Act 1992
Item 1 extends the existing definition of magistrate to include persons appointed under the Victorian law as bail justices. The Explanatory Memorandum at p24 states that this will allow 'some persons arrested in Victoria under an interstate warrant to be brought before a magistrate more quickly'.
Item 3 amends existing subsection 8(4) so that the Service and Execution of Process Act 1992 will apply to the exclusion of any relevant State law with respect to the service or execution of process or of judgments (both of courts and tribunals) in another State.
Item 4 amends paragraph 17(1)(a) so that a person, after being served, has 21 days or more (if the law in the State where the process was issued provides) to enter an appearance. Similarly,
Item 5 provides that a if a State law varies the amount of time allowed to enter an appearance
according to a prescribed distance, then the time allowed under this provision is to be the maximum period (ie as if the distance were the longest).
Item 8 inserts a new division which applies when a person arrested under a warrant is taken back to the State in which the warrant was issued, via another State either out of necessity or out of convenience. The combined effect of the provisions to be inserted by item 8 is that the law of the issuing State (for example with respect to escaping from lawful custody) applies to the prisoner throughout the journey.
Item 9 inserts a definition of an enforcement officer as including a police officer, Sheriff or Bailiff where applicable. Items 10-16 will allow an enforcement officer to issue and execute warrants of apprehension.
Schedule 15 - Amendment of the Superannuation Act 1976
Existing section 154(7) provides that when hearing an application under the Superannuation Act 1976 the Administrative Appeals Tribunal must have at least one member who is an 'eligible employee' or a 'pensioner' for the purposes of the Act. Item 1 expands the definition of 'eligible employee' and of 'pensioner' so that it will be easier to find a Tribunal that is qualified to determine the application.
Schedule 16 - Amendment of the Taxation Administration Act 1953
Items 1-6 make consequential amendments to the Taxation Administration Act 1953 arising from the creation of a Small Taxation Claims Tribunal (described in Schedule 1 above).
Item 7 provides that hearings before the Administrative Appeals Tribunal are to be held in private, notwithstanding section 35 of the AAT Act, if the taxpayer requests that they be private. This will differ from the situation in relation to hearings before the Small Taxation Claims Tribunal where the onus will be on the taxpayer to convince the Tribunal that they should be private, if the taxpayer so desires.
The Parliament of the Commonwealth of Australia Joint Committee of Public Accounts Report No. 326 An Assessment of Tax: A report on an Inquiry into the Australian Taxation Office (November 1993) AGPS at p331.
4 The Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption was done at The Hague in 1993. Australia has yet to ratify the Convention.