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Civil Law and Justice (Omnibus Amendments) Bill 2015



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ISSN 1328-8091

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BILLS DIGEST NO. 18, 2015-16 4 SEPTEMBER 2015

Civil Law and Justice (Omnibus Amendments) Bill 2015 Jonathan Chowns Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 2

Changes made by the Bill ..................................................... 2

Amendments to the Administrative Appeals Tribunal Act 1975 (AAT Act) ......................................................................... 2

Amendments to the Bankruptcy Act 1966 .............................. 3

Amendments to the Evidence Act 1995 .................................. 3

Amendments to the Federal Circuit Court of Australia Act 1999 ................................................................................... 3

Amendments to the Federal Court of Australia Act 1976 ....... 4

Amendments to the International Arbitration Act 1974 ......... 5

Consequential amendments to other Acts .............................. 6

Committee consideration .................................................... 6

House of Representatives Selection Committee ..................... 6

Senate Standing Committee on Selection of Bills ................... 6

Senate Standing Committee for the Scrutiny of Bills .............. 6

Parliamentary Joint Committee on Human Rights .................. 6

Policy position of non-government parties/independents ..... 6

Position of major interest groups ......................................... 6

Financial implications .......................................................... 6

Statement of Compatibility with Human Rights .................... 7

Date introduced: 25 June 2015

House: Senate

Portfolio: Attorney-General

Commencement: The substantive provisions commence on the day after the Act receives Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

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Purpose of the Bill The purpose of the Civil Law and Justice (Omnibus Amendments) Bill 2015 (the Bill) is to make minor amendments to civil justice legislation in several Acts.

The Explanatory Memorandum describes the amendments as ‘uncontroversial’ and this appears on its face to be true. Some readers may at first see an exception in the amendments made to the Federal Circuit Court of Australia Act 1999, which will clarify that a person to whom an arrest warrant is issued under the Act may use reasonable force to enter premises. These provisions attracted the attention of the Senate Standing Committee for the Scrutiny of Bills. However this change can still be regarded as uncontroversial, since its primary effect is to resolve a current ambiguity in the law.

Another aspect of the Bill that could attract attention is an amendment to the Federal Court of Australia Act 1976. While most of the changes to this Act are favourable to an accused, there is one change which will extend the rule that time spent on bail should not count towards the service of a sentence. This rule currently applies to indictable offences and the Bill will extend it to summary offences. It is still a minor change.

Changes made by the Bill The Bill is an omnibus bill which will mainly amend these Acts:

• Administrative Appeals Tribunal Act 1975

• Bankruptcy Act 1966

• Evidence Act 1995

• Federal Circuit Court of Australia Act 1999

• Federal Court of Australia Act 1976 and

• International Arbitration Act 1974.

Consequential amendments are made to several other Acts that are listed on page 6 of the digest.

Amendments to the Administrative Appeals Tribunal Act 1975 (AAT Act) The AAT Act establishes a scheme for the review by the Tribunal of certain decisions made under Commonwealth Acts.1

These are the material amendments made to the AAT Act:

When a person applies for review of a decision, the AAT Act now provides that the Tribunal must give notice of the receipt of the application to the person and to the decision maker.2 However, there may be other parties involved. The Bill corrects an omission by requiring that all parties to a review receive notice (item 1).

The AAT Act now allows the Tribunal to prevent disclosure of certain information about the proceedings ‘including to another party or parties’.3 It is not clear whether this means all parties. The Bill clarifies that the Tribunal can make orders that the information must not be disclosed to any or all of the parties (item 2).

The AAT Act now gives only a presidential member or a senior member of the Tribunal the power to dismiss an application for review of a security assessment, in limited circumstances.4 The Bill removes that standing power from presidential and senior members, but gives the President the flexibility to authorise those members and other members to dismiss an application (item 3).

The AAT Act now allows for some proceedings to be reinstated after they have been dismissed.5 However, the circumstances in which re-instatement can occur do not currently include a situation where proceedings are dismissed at the request of the applicant, but there remain other interested parties who do not want the proceedings to cease. The Explanatory Memorandum gives the example of matters with more than one

1. Administrative Appeals Tribunal Act 1975, accessed 4 September 2015. 2. AAT Act, section 29AC. 3. AAT Act, subsection 35(4). 4. AAT Act, section 39A. 5. AAT Act, subsections 42A(8) and (8A).

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non-governmental party, such as child support reviews. Under the changes made by the Bill, if the applicant withdraws the application, another party may seek to have it reinstated (item 4).

The AAT Act now includes a scheme for determining the manner in which documents and things are to be provided to the Tribunal and how documents are to be provided to people.6 At the moment the method is set out in the regulations and, only if there are no regulations on the subject, in a direction given by the President under section 18B, which concerns arrangements for the business of the Tribunal. Presidential directions are easier to change than regulations, which are disallowable by Parliament. The Bill provides that the manner of providing documents and things may be set out in either the regulations or the directions (item 5).

Amendments to the Bankruptcy Act 1966 The Bankruptcy Act deals with the administrative and judicial processes involved when people cannot pay their debts and give up their assets and control of their finances, either by agreement or court order, in exchange for protection from legal action by their creditors.7

Under the Bankruptcy Act, a bankrupt may have to provide a statement of their personal and financial affairs to the Official Receiver and to the trustee.8 If the approved form for a statement of affairs says that the information in it is confidential then the Official Receiver must not disclose it.9 There is no express exception where another law requires disclosure. The Bill expressly provides that exception (items 8 and 9). Examples of laws requiring disclosure are statutory information-gathering powers possessed by some government agencies.

Minor changes are made by the Bill to require a bankrupt to lodge certain requests with the Inspector-General rather than the Official Receiver (items 10, 14 and 21). Minor amendments consequent upon this change are made (items 11, 12, 15, 16, 22 and 23). Minor changes are made to remove the requirement for the Inspector-General in Bankruptcy to notify the Official Receiver of certain decisions (items 13, 17 and 18).

A minor amendment is made to impose time limits for applications to the court to review certain decisions of the Official Receiver (items 19 and 20). It is proposed that the time limit for an application to review be 60 days after notice of the decision has been given.

The Bill removes a reference to a repealed provision in section 225 of the Bankruptcy Act (item 24).

Amendments to the Evidence Act 1995 The Bill makes trivial changes to the numbering of provisions in the Evidence Act to align it with the numbering of the Evidence Act 1995 (NSW) (items 26 to 33).10 Both Acts form part of the evolving national uniform evidence law. The alignment in numbering is based on the Parliamentary Counsel’s Committee Protocol on Drafting National Uniform Legislation recommendation that uniform numbering be used across jurisdictions.11

The Bill moves the journalist privilege provisions from Division 1A of Part 3.10 to new Division 1C of Part 3.10 of the Commonwealth Evidence Act to make the numbering consistent with the NSW Act. No substantive change is made.12

Amendments to the Federal Circuit Court of Australia Act 1999 The Bill removes a reference in the Federal Circuit Court of Australia Act 1999 (FCCA Act)13 to an obsolete section of the Family Law Act 199514 (section 31 of the FCCA Act refers to section 19E of the Family Law Act, which does not exist (item 36)).

The Bill also inserts provisions concerning the exercise of power of arrest under the FCCA Act (items 37 and 38). These provide an arrester, who is authorised by the Act, or a warrant issued under the Act or the Rules of Court, with the power to use reasonable force to enter premises to execute an arrest warrant.

6. AAT Act, section 68. 7. Bankruptcy Act 1966, accessed 4 September 2015. 8. Bankruptcy Act, sections 54 and 55. 9. Bankruptcy Act, subsections 54(6) and 55(11). 10. Evidence Act 1995 (NSW), accessed 28 August 2015. 11. Parliamentary Counsel’s Committee, Protocol on drafting national uniform legislation, 4th edition, 10 July 2014, p. 5, accessed 28 August 2015. 12. Evidence Act 1995 (Cth), accessed 4 September 2015. 13. Federal Circuit Court of Australia Act 1999, accessed 4 September 2015. 14. Family Law Act 1975, accessed 4 September 2015.

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This amendment attracted the attention of the Senate Standing Committee for the Scrutiny of Bills, which noted the detailed explanation of the amendment in the explanatory memorandum and the limitations and safeguards that are put in place. The committee drew ‘Senators’ attention to the provision, as it may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the committee’s terms of reference.’15

The provisions are identical to those in section 55A of the Federal Court of Australia Act 1976, which was inserted by the Federal Courts Legislation Amendment Act 2015.16

Of that amendment, the Shadow Attorney-General, Mark Dreyfus, said in his second reading speech:

The Bill will clarify the ability to use reasonable force in entering premises to execute an arrest warrant, which is unclear under the legislation as it presently stands. 17

This echoes the Explanatory Memorandum, which explains that the Bill resolves uncertainty in the law.18 It also points to the limitations on the use of force, noting, amongst other matters, that it must be reasonable in the circumstances.19

Amendments to the Federal Court of Australia Act 1976 The Bill makes minor changes to the pre-trial process for indictable offences in the Federal Court of Australia Act.20 It deals with the time at which a prosecutor may amend or replace an indictment (items 40 and 41). In short, if an indictment is to be amended or replaced as of right, it must be done sooner under the proposed law, giving the accused and the Court more notice of the change. This benefits the accused.

The current position is that the prosecutor may amend or replace an indictment at any time before the start of a trial. During the trial the indictment may be amended or replaced only with the leave of the Court. The new position will be that the prosecutor may amend or replace an indictment in these circumstances:

• When no date has been set for trial, the indictment may be amended or replaced at any time.

• When a date has been set, the indictment may be amended or replaced more than 90 days before that date.

• When a date has been set, and there are fewer than 90 days until the start date, or if the trial has started, the indictment may be amended or replaced only with the leave of the Court.

The Bill makes another minor change to the pre-trial process for indictable offences (item 42). The current position is that the Federal Court must order a pre-trial hearing as soon as possible after the indictment is filed and the accused must attend court and enter a plea. The new rule is that the Court may give notice in writing of a pre-trial hearing and if it does, the accused must attend and enter a plea. This could benefit some accused to the extent that it reduces unnecessary appearances.

The Bill makes a minor change to the information that must be given by the prosecutor to the accused prior to the trial (item 43). Currently, the notice of the prosecution’s case must include a copy of a signed statement by the witness that sets out the evidence the witness is to give at the trial or a written summary of the evidence of the witness. Under the Bill, a written summary may be given only if the prosecutor cannot obtain a statement signed by the witness. The Explanatory Memorandum comments that ‘[t]his will ensure that whenever possible, the defence will be provided with the most accurate account of the witness statements for witnesses the prosecution proposes to call at trial.’21

The Bill makes a minor change to the way a jury roll is prepared (item 44). Currently, the Sherriff is required to prepare a jury roll for a jury district (subsection 23DG(1)) but there is no guidance about how this is to be done. The Bill requires that the jury roll be prepared using electoral rolls.

15. Senate Standing Committee for the Scrutiny of Bills, Alert digest, 7, 2015, The Senate, 12 August 2015, p. 26, accessed 28 August 2015. 16. Federal Court of Australia Act 1976, section 55A and Federal Courts Legislation Amendment Act 2015, item 10 of Schedule 1, both accessed 4 September 2015. 17. M Dreyfus, ‘Second reading speech: Federal Court Amendment Bill 2014’, House of Representatives, Debates, 2 December 2014, p. 13945. 18. Explanatory Memorandum, Civil Law and Justice (Omnibus Amendments) Bill 2015, paragraphs 26-27, accessed 4 September 2015 19. Ibid., paragraphs 29-32. 20. Federal Court of Australia Act 1976, accessed 4 September 2015. 21. Ibid., p. 23.

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Minor amendments are made about the empanelment and discharge of juries and about jurors being excused (items 45, 47, 48, 49).

A redundant provision, subsection 23EL(1) is removed (item 46).

The Bill removes the ability of a judge in criminal appeal proceedings to order that someone be joined or removed as a party (item 51). The Explanatory Memorandum says that these are ‘orders of a kind which are not appropriate in criminal appeal proceedings because in a criminal appeal there is no basis for a court to join additional parties.’22

The Bill makes a substantive change to the existing principle in section 30AL that time spent on bail pending the determination of an appeal should not count towards the service of a sentence (item 52). Currently that rule applies only to indictable offences. The Bill extends the rule to summary offences. This change will not benefit an accused who is convicted.

The Bill clarifies that the Court may remit a matter for further hearing to a magistrate and not just to a Judge as currently provided (item 53). The rule applies in cases of appeals from summary prosecution under section 30BF.

Amendments to the International Arbitration Act 1974 The Bill simplifies provisions in the International Arbitration Act 1974 for enforcement of foreign arbitral awards (items 56, 57 and 58).23

The Explanatory Memorandum explains:

Part II of the Act implements the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the ‘Convention’).

Section 7 of Part II regulates the enforcement of foreign arbitration agreements and section 8 of Part II regulates the enforcement of arbitral awards.

Subsection 8(4) of the International Arbitration Act provides that foreign arbitral awards may not be enforced where the award was made in a country which is not a party to … the Convention at the time enforcement is sought. This is the case unless the party seeking enforcement is at that time domiciled or ordinarily resides in Australia or another country which is a party to the Convention.

These items will remove this restriction and allow enforcement of foreign awards in Australia regardless of the country in which they are made. As such, they will improve compliance with the Convention by broadening the scope of application of the enforcement provisions under the Act. 24

The Bill also improves the rights of parties to resist enforcement in Australia of a foreign award (item 59). The Explanatory Memorandum says:

Paragraph 8(5)(a) of the International Arbitration Act allows a party to an arbitration agreement to apply to a court to resist enforcement of an award only on the basis of the incapacity of the award debtor. An award debtor cannot apply to resist enforcement on the basis of the incapacity of another party to the arbitration agreement.

This item will allow a party to rely on the incapacity of any party to the arbitration agreement in a plea for refusal of enforcement, rather than the legal incapacity of the award debtor only. This item will make enforcement proceedings fairer for all parties and improve the Act’s consistency with the Convention. 25

22. ibid., p. 25. 23. International Arbitration Act 1974, accessed 4 September 2015. 24. Explanatory Memorandum, op. cit., p. 27. 25. Ibid.

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The Bill improves the confidentiality of international arbitration proceedings conducted in Australia (items 60 to 63). Currently, in some circumstances, the parties must specify that proceedings are to be confidential. Those cases will now be confidential by default.

Consequential amendments to other Acts The Bill makes consequential amendments to the Acts listed below. The Explanatory Memorandum sufficiently explains the basis of these changes.

Consequential amendments are made to these Acts:

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

• Child Support (Registration and Collection) Act 1988

• Family Law Act 1975

• Freedom of Information Act 1982

• James Hardie (Investigations and Proceedings) Act 2004

• Paid Parental Leave Act 2010

• Proceeds of Crime Act 2002

• Public Interest Disclosure Act 2013

• Social Security (Administration) Act 1999 and

• Student Assistance Act 1973.

Committee consideration House of Representatives Selection Committee At the time of writing, the Committee has not considered the Bill.26

Senate Standing Committee on Selection of Bills In Report No. 10 of 2015, of 20 August 2015, the Committee resolved to recommend that the Bill not be referred to a committee for inquiry.27

Senate Standing Committee for the Scrutiny of Bills The remarks of the Senate Standing Committee for the Scrutiny of Bills have been recorded in the section dealing with amendments to the Federal Circuit Court of Australia Act 1999 on page 4 of this digest.28

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights considers that the Bill does not require additional comment as it promotes human rights and/or contains justifiable limitations on human rights.29

Policy position of non-government parties/independents The Bill has not been the subject of public comment by the Labor Party, the Australian Greens or other members or Senators.

Position of major interest groups The Bill has not been the subject of public comment.

Financial implications The Explanatory Memorandum says the Bill has no financial impact.30

26. Australian Parliament, ‘House of Representatives Selection Committee’, Australian Parliament website, accessed 28 August 2015. 27. Senate Standing Committee on Selection of Bills, Report, 10, 2015, The Senate, 20 August 2015, accessed 28 August 2015. 28. Senate Standing Committee for the Scrutiny of Bills, Alert digest, 7, 2015, The Senate, 12 August 2015, p. 25, accessed 28 August 2015. 29. Parliamentary Joint Committee on Human Rights, Twenty-fifth report of the 44th Parliament, August 2015, p. 2, accessed 28 August 2015. 30. Explanatory Memorandum, op. cit., p. 3.

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Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.31

Both the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights have considered the human rights aspects of the Bill. Their remarks are recorded above.

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31. The Statement of Compatibility with Human Rights can be found at pages 4-10 of the Explanatory Memorandum to the Bill.