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Law and Justice Legislation Amendment Bill 1990



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House: House of Representatives

Portfolio: Attorney-General

Purpose

This is an omnibus Bill that will make a number of largely non-contentious amendments to legislation administered by the Attorney-General's portfolio. The major amendments relate to debtor's bankruptcy petitions; the use of integrated circuits; and the liability of people, including employers , for indirect discrimination.

Background

As there is no central theme to the Bill, the background to each amendment will be explained below.

Main Provisions

Amendments to the Bankruptcy Act 1966

A debtor may become bankrupt on their own initiative by presenting a debtor's petition or where a creditor begins bankruptcy proceedings by filing a petition asking the Court to make a sequestration order.

Section 43 of the Act provides that a creditor may start bankruptcy proceedings by presenting a petition asking the Court to make a sequestration order in respect of the estate of the debtor. Where a Court makes a sequestration order, the debtor automatically becomes bankrupt. A creditor, or several creditors acting jointly, can only present a petition for a sequestration order if certain conditions are satisfied, including that: the debtor is not a company and no law specifically provides for its winding up; the debtor owes the creditor, or joint petitioning creditors, at least $1500; the debtor has committed an act of bankruptcy six months prior to presentation of the petition; and the debtor, at the time of the act of bankruptcy had a connection with Australia.

Section 55 deals with petitions by single debtors. It provides that a petition may be presented by a debtor accompanied by a statement of their affairs verified by affidavit. The Registrar of Bankruptcy is required under section 55 to accept the petition where it is in the prescribed form, and on acceptance by the Registrar, the debtor becomes a bankrupt.

A debtor's petition can also be presented against a partnership by all of its members or by a majority of the partners resident in Australia. Under section 56 of the Act, a debtor's petition against a partnership is to be accompanied by a statement of the partnerships affairs and a statement of affairs of each of the petitioning partners. Both statements are required to be verified by affidavit. A debtor's petition against a partnership cannot be accepted by the Registrar unless a registered trustee has consented to act as trustee of the joint and separate estates of those partners who would become bankrupt if the petition were accepted, or unless it appears to the Registrar that the joint estate of those bankrupts would be less than $10 000 or other prescribed amount, or the Registrar is satisfied that the petitioning partners have taken all reasonable steps to get the consent of a registered trustee for that purpose.

Section 57 of the Act provides for a debtor's petition by joint debtors who are not partners. The procedure is similar to that for an individual. Any two or more of the joint debtors may present a petition to the Registrar jointly against themselves. The differences from an individual petition include that there is to be a statement of affairs verified by affidavit for each of the petitioning debtors in addition to a statement of affairs verified by affidavit for their joint affairs, and on acceptance of the petition either by the Registrar or by direction of a Court, each of the petitioning debtors becomes a bankrupt.

Basically, the amendments to sections 55, 56 and 57 proposed by clauses 10-12 provide that where a debtor presents a petition and a creditor's petition is pending against the debtor/the partnership/the joint debtors, the Registrar in Bankruptcy is to refer the debtor's petition to the Court

for a direction to accept or reject it. In effect, the amendments will give the Court an opportunity to

decide whether it is better to allow a creditor's petition to proceed or to direct the Registrar of Bankruptcy to proceed with the debtor's petition. The objective of clauses 10-12 is to eliminate a perceived abuse whereby, because there is no time limitation on the acceptance of a debtor's petition, some debtors have used the time between the filing of a creditors petition and the making of a sequestration order, to get rid of assets before making their debtor's petition.

Amendments to the Circuit Layouts Act 1989

The Act provides protection to original circuit layouts of integrated circuits. A circuit layout is a plan which shows the location of the electronic components of an integrated circuit. An integrated circuit is a reproduction in three dimensions of the plan. Typically, an integrated circuit is a semi-conductor computer chip. The Act provides exclusive rights to the owner of a circuit layout to copy the layout, make an integrated circuit in accordance with the layout, and exploit the circuit layout commercially. Under the Act a circuit layout is not original, and therefore not protected, if its creation involved no contribution by the maker, if it was commonplace at the time, or its features are dictated solely by the function it is required to perform. Protection under the Act applies only to `eligible layouts', i.e. those originating in Australia or from a country declared in the regulations to be an eligible country for the purposes of the Act. Basically, circuit layouts are protected for 10 years after first commercial exploitation. An owner's rights are infringed where a person copies or authorises the copying of a layout, an integrated circuit made in accordance with the layout, or the commercial exploitation of the layout in Australia without the consent of the owner.

In a News Release of 2 October 1990, the Attorney-General announced the commencement of the Act and that the Governor-General had made regulations under the Act prescribing the following countries as `eligible foreign countries': Belgium, Canada, Denmark, Eire, Germany, Finland, France, Greece, Italy, Japan, Luxembourg, Norway, Netherlands, Portugal, Spain, Sweden, Switzerland, Turkey, the United Kingdom and Northern Ireland, and the United States of America.

Sub-section 20(1) of the Act provides that ownership rights attached to a circuit layout will not be infringed by a person who commercially exploits a circuit layout if that person did not know or could not reasonably be expected to have known that there rights are attached to the circuit layout. A new sub-section 20(1) will be substituted into the Act by clause 43. The effect of the amendment will be to limit the above commercial exploitation exemption to integrated circuits rather than circuit layouts.

Sections 21-23 of the Act provide that a person may copy a circuit layout for private use, for research, or teaching purposes without infringing an owner's rights. Clauses 44-46 will extend the exemption to the making of an integrated circuit in accordance with the circuit layout or a copy of the circuit layout.

In the Second Reading Speech to the Bill, the stated objective of the above amendments is to bring the Act into line with the Treaty on Intellectual Property in Respect of Integrated Circuits.

Amendments to the Federal Court of Australia Act 1976

A new section 29A will be inserted into the Act by the Schedule to the Bill. Proposed section 29A provides that where a person has appealed to the Federal Court from a conviction or a sentence imposing a term of imprisonment, or both, any time they were on bail pending the hearing of the appeal will not count as part of the term of imprisonment to which they have been sentenced. This results from a decision of the Federal Court of Australia in Petreski v. Cargill (1988) 79 ALR 235. That case involved a man convicted of three counts of assault who had been granted bail pending the hearing of an appeal to the Federal Court over his conviction. One of the findings of the Federal Court was that, because no stay of execution of the appellants sentence had been made under section 29 of the Act, the appellant's term of imprisonment had continued to run while he was on bail. In effect, this finding meant that the appellant did not have to serve any term of imprisonment.

Amendments to the Racial Discrimination Act 1975

The Act makes certain acts done on grounds of the race, colour, national or ethnic origin of a person or any relative or associate of that person unlawful, including:

*refusing to allow access to or use of any place or vehicle which members of the public are entitled or allowed to enter;

*refusing to allow use of facilities relating to places or vehicles, or allowing use only on less favourable terms and conditions;

*refusing or failing to dispose of any estate, interest in land, residential or business accommodation to someone;

*refusing to allow occupation of land, residential or business accommodation; and

*imposing or seeking to impose terms or conditions which limit the person, or class or persons who may be licensees or invitees of the occupier of any land or residential or business accommodation.

There is also a general `catch-all' section in the Act which makes unlawful any act involving `...a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin, which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, or any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life'.

A new section 9(1A) will be inserted into the Act by the Schedule to the Bill. Proposed section 9(1A) provides that where a person requires another person to comply with a term, condition or requirement which impairs the recognition, enjoyment or exercise on an equal footing by persons of the same race, colour, descent or national or ethnic origin of any human right or fundamental freedom, then the requirement is to be treated as involving a distinction based on, or an act done by reason of the person's race, colour, descent or nation or ethnic origin. The effect of proposed section 9(1A) will be to make indirect acts of racial discrimination unlawful.

A new section 18A will be inserted into the Act by the Schedule to the Bill, the effect of which will be to make employer's liable for the racially discriminatory acts of employees or agents unless it is established that the employer took all reasonable steps to prevent the unlawful acts.

Bills Digest Service 11 December 1990

Parliamentary Research Service

For further information, if required, contact the Law and Government Group on 06 2772434.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1990

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1990.