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Law and Justice Legislation Amendment Bill 1998
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Law and Justice Legislation Amendment Bill 1998
In Schedule 2, item 1 commences as of 9 October 1996 and item 2 as of 1 January 1998. Schedule 4 commences as of 16 December 1996, Schedule 5 as of 1 July 1990, Schedule 6 as of 23 June 1993 and Schedule 13 as of 17 April 1997. In Schedule 16, items 1 and 2 commence as of 25 May 1997.
This is an omnibus piece of legislation which contains amendments to 16 diffe rent Acts, all of which fall within the responsibility of the Attorney-General's Department, except one within the Treasurer's responsibility and one within the responsibility of the Minister for Employment, Workplace Relations and Small Business.
A large number of provisions in the Bill are minor and technical amendments. The more substantive amendments are directed to achieve the following purposes:
- to complete implementation of recommended changes to the Administrative Review Council
- to permit the Austr alian Protective Service to charge for services rendered to non-Commonwealth clients
- to extend the operation of certain rules in the Evidence Act 1995 to all Australian courts, to facilitate the proof of documentary evidence and to make other relatively minor amendments to that Act
- to amend the Acts which govern the High Court and Federal Court in each case to create or broaden a regulation-making power, and in the latter case, to widen the range of court officials who can administer oaths and affidavits and to increase the pool of judges for full bench appeals from the Supreme Court of the Australian Capital Territory
- to prevent a collateral criminal jurisdiction being attracted to the Federal Court by virtue of a particular provision of the Judiciary Act 1 903
- to permit State and Territory judges exercising summary or committal criminal jurisdiction to exercise a matching jurisdiction in relation to Commonwealth offences, including in proceedings pending at the time of commencement.
As there is n o central theme to the Bill, the background to each major amendment will be explained where relevant in the Main Provisions section below.
Reference has not been made to provisions dealing with drafting corrections or other minor matters.
Schedule 1 - Amendment of the Administrative Appeals Tribunal Act 1975
At the suggestion of the Attorney-General, the Senate asked the Senate Legal and Constitutional References Committee to report on matters relating to the Administrative Review Council ( the Council) on 18 September 1996. The Council was established in 1976 under Part V of the Administrative Appeals Tribunal Act 1975 as an expert body to provide advice on administrative law and decision-making. It had not been previously reviewed in its 20 year existence. The Report on the Role and Function of the Administrative Review Council was presented by the Committee to the Senate in June 1997. It endorsed the continued separate existence of the Council and made recommendations regarding membership, functions, performance indicators and the relationship between the Council, the Executive and Parliament.
The Government's response to the Committee's Report was tabled in the Senate on 1 April 1998. That response accepted 10 of the Committee's 11 recommendations and indicated that implementation would involve a mix of legislative and executive action. This Digest refers to Committee recommendations where relevant to particular items in the Bill.
Item 1 in Schedule 1 permits the Minister to expand the Council beyond a maximum of 13 members by regulation.
Item 2 implements Recommendation 3 of the Committee's Report. It widens the qualifications for appointment to the Council to include those with knowledge and experience of the needs of those affected by decisions which come before the Administrative Appeals Tribunal for review (ie a wide range of government decisions).
Items 4-6 implement Recommendation 7, which called for a clearer statutory definition of major Council functions with a particular focus on improving primary decision-making.
Item 8 implements Recommendations 9 and 10 by confirming explicitly the power of the Minister to issue (binding) directions to the Council and to refer matters for inquiry and report. Proposed section 51C provides that reports from the Council are to be provided to the Minister, who must in turn table them in both Houses within 15 sitting days.
Items 9 and 10 give effect to Recommendation 6 by allowing the Governor-General to appoint members for the duration of a specified project (but still subject to a maximum initial term of 3 years and the possibility of re-appointment). Although the Committee considered this amendment would obviate the need for the President of the Australian Law Reform Commission to serve as a permanent ex officio member, the ALRC President remains a permanent Council member.
Schedule 3 - Amendment of the Australian Protective Service Act 1987
The Australian Protective Service exists to prov ide protective and custodial services (other than bodyguard services) as directed by the Minister. Item 1 in Schedule 3 will allow the Director of the Service to impose reasonable charges for such services, where a request comes from persons other than Commonwealth officials or organisations. A constitutional issue relating to this amendment is discussed in the Concluding Comments.
Schedule 4 - Amendment of the Bankruptcy Legislation Amendment Act 1996
Item 1 in Schedule 4 appears misdirected. It is described in the Explanatory Memorandum as the correction of a minor drafting error but it tends to compound rather than correct drafting deficiencies. The word 'prescribed' is used 3 times in subsection 20J(2) of the Bankruptcy Act 1966 in relation to reasons for the Official Trustee holding money, and once in relation to the interest rate applicable to money so held. The intention of item 1 may be to confirm that the words 'by the regulations', inserted as a result of the 1996 Amendment Act, should apply to all 4 references. If so, in effecting this 'clarification' of the legislative intention in 1996, item 1 confirms the following ungrammatical expression in subsection 20J(2):
Where moneys have been held, or are likely to be held, for a prescribed by the regulations reason, or for one prescribed by the regulations reason and then for another prescribed by the regulations reason, by the Official Trustee…etc.
Either the phrase 'by the regulations' is intended to apply to all 4 references, in which case subsecti on 20J(2) would require grammatical adjustment as just pointed out, or it is intended only to apply in relation to rates of interest, in which case appropriate words of limitation would need to be inserted in item 1.
The confusion surrounding item 1 is exacerbated by two other unrelated matters. First, item 1 alters the Schedule to the 1996 Amendment Act. The nett effect is to amend the principal Act, the Bankruptcy Act 1966 . Given that the schedule of 1996 amendments commenced on 16 December 1996 - that is, those amendments became provisions of the Principal Act over 2 years ago - it is not clear why Schedule 4 to the 1998 Bill seeks to amend a Schedule in the 1996 amending legislation rather than the principal Act (the same indirect method of amendment is adopted in item 1 of Schedule 13 and items 1 and 2 of Schedule 16 ).
The second element of confusion arises from the fact that the latest reprint of the Bankruptcy Act 1966 (Reprint No. 5) fails to include the phrase 'by the regulations' for any of the 4 references to 'prescribed' in subsection 20J(2). A Note at page 414 of the Reprint states that the 'proposed amendment was misdescribed and is not inserted in this reprint.'(1)
Schedule 5 - Amendment of the Copyright Amendment Act 1989
The Explanatory Memorandum states that item 1 in Schedule 5 corrects a minor drafting error. It does not. Instead it generates a drafting error. It does so by making an inaccurate reference to an Act which was found invalid by the High Court and repealed and re-enacted by the Parliament in 1993. Any substantive effect which item 1 may have achieved, if correctly drafted, has already been effected by earlier legislation.
In 1989, the Parliament expressed an intention to remove certain words from section 149A of the Copyright Act 1968 .(2) That attempt miscarried because the 1989 Act was found invalid by the High Court in March 1993 due to the operation of section 55 of the Constitution.(3) The two provisions, to remove the specified words, were re-enacted by the Parliament in 1993.(4) On this occasion, the first provision (item 21) achieved its intent. However the second provision - item 22 in the Schedule to the 1989 Act as re-enacted - wrongly referred to 'person's' rather than 'reader's'. Presumably this caused the purported removal of this and all the surrounding words in item 22 to fail. The intended effect was finally achieved with the passage of amending legislation in 1998.(5)
Item 1 in Schedule 5 appears to be a second (and unnecessary) attempt to rescue item 22 in the Schedule to the 1989 Act. But it proceeds on the incorrect premise that the error in the 1989 Act related to the use of the word 'a' instead of 'the'. In doing so it has wrongly sought to correct item 21, an item which took full effect in 1993. The overall result is to introduce new legal uncertainty where no problem exists.
Schedule 7 - Amendment of the Evidence Act 1995
Item 1 is linked to items 19, 29 and 30 . Taken together they facilitate proof that certain official documents produced in evidence are what they purport to be. The Evidence Act 1995 already 'fast tracks' proof of documentary evidence for a number of categories of documents, essentially by dispensing with the need for a witness routinely to verify the document. Item 19 extends the procedure and the presumption of validity to 'Commonwealth documents'. Item 29 and 30 spell out the definition of this term, which basically applies to forms, returns and similar or prescribed documents lodged with Commonwealth agencies, corporations and office-holders. Item 1 extends the operation of the presumption to proceedings in all Australian courts.
Items 2, 3, 5-7, 9, 16-18, 20, 22, 23, and 25-27 are all consequential on item 24 . Item 24 gives an extended operation to certain sections of the Act so that they apply in all Australian courts. The nominated sections all deal with facilitating proof in relation to particular documents. Proposed subsection 182(4B) gives the nominated provisions Australia-wide application, if the documents are currently or were previously within the possession of a 'Commonwealth entity' and they meet the definition of 'Commonwealth documents' (see items 29 and 30 as discussed above). Proposed subsection 182(4A) extends nationwide operation to a provision which facilitates proof of receipt of documents sent through the post, where the document was sent by a 'Commonwealth agency'. That term is defined in item 28 , and parallels the definition of a 'Commonwealth entity' except that it does not include the catch-all extension to 'any other body or organisation that is a Commonwealth owned body corporate'. Item 21 is consequential on item 28.
Items 4, 11-13 and 15 are related. As the Explanatory Memorandum points out:
Several provisions of the Evidence Act are drafted on the assumption that a witness gives evidence by way of oral testimony.
But growing reliance on evidence by affidavit, for example in the Family Court, means certain provisions of the Act would be given artificially constrained interpretation. Thus references to 'oral evidence' have been amended by the above items to accommodate the possibility that evidence may be adduced from a witness in oral or written form.
Items 10 (in relation to the hearsay rule) and 14 (in relation to the opinion rule) share a common objective: to give full effect to post-18 April 1995 regulations which provide for a certificate or other document to have evidentiary effect. Documents are from time to time expressed by regulation under another Act to have evidentiary effect. If they contain, say, hearsay material or an expression of opinion, this sets up a conflict between two pieces of legislation: the regulation and the Evidence Act 1995 . Where the regulation was made before commencement of the Evidence Act 1995 , that tension was resolved by not applying the rules of the Act and giving evidential effect to the document [see section 8(2)]. But where the regulation was made or amended after that date (18 April 1995), the Act prevailed. Items 10 and 14 changes the post-18 April 1995 situation, by disapplying the hearsay and opinion rules found in the Evidence Act 1995 .
Schedule 8 - Amendment of the Federal Court of Australia Act 1976
The effect of item 1 is to increase the pool of judges from which a full bench of the Federal Court can be constituted, in order to hear an appeal from the Supreme Court of the ACT. The other effect is to potentially dilute the participation of Territory-based Federal Court judges in appeals from the Territory's highest court.
The amendment requires an understanding of the way in the ACT Supreme Court itself is constituted. A judge of the ACT Supreme Court can be a 'resident judge' who is presumably a resident of the Territory, but he or she can also be a judge of another superior court appointed as an 'additional judge'. For example, a Federal Court judge who customarily sits in NSW may be an additional judge of the ACT Supreme Court, and this has frequently been the case.
Appeals from the Supreme Court of the ACT are generally heard by a full bench of the Federal Court. At present, unless the Chief Justice of the Federal Court considers it impracticable, the full bench must include a Federal Court judge who holds a dual commission as a resident ACT Supreme Court judge.
The amendment in item 1 would remove the residence requirement relating to at least one member of the full bench. A Full Court hearing an appeal from the ACT Supreme Court would not need to include an ACT-based judge holding a dual commission, as long as (barring impracticality) at least one member holds a dual commission with both the ACT Supreme Court and the Federal Court.
The Explanatory Memorandum seems to convey a mistaken impression. It suggests the purpose of the amendment is 'to increase the number of Australian Capital Territory resident judges available to sit on the Full Court of the Federal Court when hearing appeals from the ACT Supreme Court'. To the contrary, the purpose appears to be to increase the number of non-resident judges who so qualify.
Item 2 widens the range of people authorised by this section to administer oaths and affirmations for the purposes of the Federal Court. The current provision is confined to Judges, but the amendment would permit the Registrar to authorise a variety of Court officials and staff to do so as well.
Item 3 is essentially consequential on item 2, but in re-writing subsection 45(1) it has omitted reference to a Deputy District Registrar thereby narrowing the class of officials who may witness affidavits at the same time as seeking to extend it. No such intention is apparent in the Explanatory Memorandum which suggests that again this is a drafting error in the Bill.
Item 4 widens the regulation-making power under the Federal Court Act 1976 . The Explanatory Memorandum suggests that the particular purpose is to ensure that regulations can validly increase the dollar limit on contracts which the Court may enter into, under paragraph 18A(4)(b).
Schedule 9 - Amendment of the High Court of Australia Act 1979
Section 40 of the High Court of Australia Act 1979 permits the Court to enter into contracts up to the value of $250,000 or a 'prescribed higher amount'. However, the Act contains no general regulation making power and therefore such an amount could not be prescribed other than by amending the Act itself. Item 1 will fill that gap, allowing matters required, permitted, necessary or convenient to be prescribed, to be prescribed by regulation.
Schedule 10 - Amendment of the Judges' Pensions Act 1968
The Judges' Pensions Act 1968 provides for pensions to be payable to judges of a federal court and certain other judges. In calculating a pension, 'prior judicial service' elsewhere is added to the period spent as a 'Judge' under the Act. That prior judicial service encompasses time spent, for example, as a judge of the Northern Territory Supreme Court (while not holding a dual commission as a federal judge). It does not include the prior service of a judge who, while not holding a dual commission, sat on the Supreme Court of the Australian Capital Territory. Item 1 will remedy this anomaly.
Schedule 11 - Amendment of the Judiciary Act 1903
A court of 'original jurisdiction' is where a matter is heard and decided judicially for the first time. The Federal Court of Australia is a court created by statute, and has original jurisdiction conferred on it under a variety of Commonwealth laws. The Court can also hear a matter not within its jurisdiction which is so closely associated with a matter before it that is within jurisdiction, that the two are non-severable ('accrued' and 'associated' jurisdiction).(6)
One statutory source of the Federal Court's jurisdiction is the Judiciary Act 1903 . Subsection 39B(1A) of the Judiciary Act 1903 confirms that the Federal Court's jurisdiction includes a 'matter' arising in a number of defined federal contexts. Item 1 seeks to confine such 'matters' to the civil arena, in order according to the Explanatory Memorandum to head off use of this section of the Judiciary Act 1903 as a basis for private criminal prosecutions or for including 'a criminal matter as an element of a civil case' in the Federal Court.
The rationale and potential reach of the amendment are not elaborated any further in the Explanatory Memorandum. In relation to private prosecutions, it is notable that already the Director of Public Prosecutions has the power to assume control of any private prosecution and terminate it.(7) This indeed was the rationale of the current Attorney-General for repealing certain provisions which required the consent of a minister before a prosecution could be instituted against a person suspected of a Commonwealth offence.(8)
The phrase 'to include a criminal matter as an element of a civil case in which the Federal Court has jurisdiction' raises questions about item 1 's potential reach, questions which are not answered by the Explanatory Memorandum. Is it targetted at collateral challenges in the Federal Court to criminal proceedings being heard elsewhere? Is it intended to cut back the associated and accrued jurisdiction of the Federal Court discussed above? Would it prevent the raising of an issue of genocide, for example, in a civil case against the Commonwealth relating to Aboriginal child removals? Does the amendment correspond to the description of the omnibus bill in which it is contained, which is as one which 'makes amendments of a minor policy nature'?(9)
Section 68 of the Judiciary Act 1903 provides State and Territory courts with jurisdiction to handle criminal cases arising under Commonwealth law. Subsection (3) limits the range of State and Territory courts which have jurisdiction over committals and summary convictions. Item 3 will add State and Territory judges with like jurisdiction at the State or Territory level to the list of those who may exercise this particular form of Commonwealth jurisdiction. Item 4 allows item 3 to operate from the time of commencement, including to proceedings pending at that time.
Schedule 15 - Amendment of the Telecommunications (Interception) Act 1979
Item 1 is another example of an apparently unnecessary 'amendment'. It attempts to correct a drafting error which the Parliament has already corrected, and which therefore no longer exists. The intended effect was achieved by item 16 of Schedule 1 to the Telecommunications (Interception) and Listening Device Amendment Act 1997 , which commenced on 11 November 1997. There is nothing in the Explanatory Memorandum to suggest that the remedial action taken by the Parliament in 1997 was ineffective.
A primary purpose of this omnibus portfolio Bill is to 'tidy up' legislatio n by correcting drafting errors. If the analysis in this Digest is correct, the Bill exacerbates confusion over one provision, apparently omits a word and thereby undercuts the purpose of another amendment, and twice corrects drafting errors where none exists, in one case creating fresh error. In addition, the Explanatory Memorandum in explaining one amendment describes the opposite effect to the one actually achieved.
Frequently Acts are amended in the following way. A principal Act is passed. Later, an amendment to that Act is made, in a Schedule to another Act. Once that amendment commences, it becomes part of the principal Act. If a drafting error is subsequently found in the amendment which was located in the Schedule, it appears that the correction will be made to the Schedule. This is despite the fact that by now, the provision appears in the principal Act and in that practical sense the Schedule has become redundant.
There are four examples of this practice in the Bill (as noted in the discussion of Schedule 4). It may be that there are reasons for the practice which outweigh the disadvantages of such an indirect approach. It does make the Parliament's and the public 's task of ascertaining the legal effect of a particular amendment much more circuitous and difficult.
The stated intent of item 1 in Schedule 11 is to deny the use of subsection 39B(1A) of the Judiciary Act 1903 for the bringing of private prosecutions before the Federal Court or for including 'a criminal matter as an element of a civil case in which the Federal Court has jurisdiction'. The potential reach of this provision and particularly the meaning of this latter phrase are uncertain, and not clarified by the Explanatory Memorandum. Mechanisms already exist for bringing private prosecutions to an end, through the office of the Director of Public Prosecutions. Depending on its reach, it is open to question whether the item is a 'minor policy' matter as the Explanatory Memorandum asserts, given that it is intended to deny access to the courts for certain purposes.
The Government indicated in its respons e to the Senate Legal and Constitutional References Committee's report on the Administrative Review Council (ARC) that it would not be accepting Recommendation 11 which stated:
The Committee recommends that the Government give an undertaking to respond to all Administrative Review Council project reports within twelve months of their delivery.
Accordingly, there is no reference in Schedule 1 to such a requirement, although the Committee's recommendation would not necessarily entail legislative action if the Government had decided to accept it.
Item 1 in Schedule 3 proposes to allow the Director of the Australian Protective Service to impose reasonable charges for protective services, where a request comes from persons other than Commonwealth officials or organisations.
There may be a constitutional question about the capacity of the Commonwealth to charge for protective services provided to non-Commonwealth entities. In its Judiciary Amendment Bill 1998 recently considered by both houses, the Government confined the range of clients to whom the Australian Government Solicitor can provide legal services on the basis of what the Attorney-General referred to as 'constitutional limits'. It appears clear that the Commonwealth cannot carry on commercial activities without some connection to a head of constitutional power. The precise boundaries have not been defined in case law and are the subject of legal debate.(10)
1.The existence of c onfusion about the effect of the 1996 amendment is underscored by the fact that one loose-leaf bankruptcy service (published by Law Book Company) inserts the words 'by the regulations' only at the fourth reference to 'prescribed' whereas another service (published by CCH) inserts after all four references. Thus the official Reprint and two standard references confront the reader with 3 different versions of how subsection 20J(2) currently reads.
2.Items 21 and 22 of the Schedule to the Copyright Amendment Act 1989.
3. Australian Tape Manufacturers Association Ltd and Others v The Commonwealth of Australia (1993) 177 CLR 480 per Mason CJ, Brennan, Deane and Gaudron JJ.
4 .Copyright Amendment (Re-enactment) Act 1993 .
5.Item 51 in Schedule 5 of the Copyright Amendment Act (No.1) 1998 commenced on 30 July 1998.
6.This may arise either due to the 'accrued jurisdiction' of the Court arising from ss. 76(ii) and 77(i) of the Constitution and ss. 19 and 22 of the Federal Court of Australia Act 1976 , or the jurisdiction in associated matters provided in s. 32 of the Federal Court of Australia Act 1976 .
7.Subsection 9(5) of the Director of Public Prosecutions Act 1983 .
8.Crimes and Other Legislation Amendment Bill 1996, Second Reading Speech, The Hon. Daryl Williams, 4 December 1996: 'Those provisions were originally enacted for the purpose of deterring private prosecutions brought in inappropriate circumstances, particularly for offences which related to national security or international treaty obligations. However, since establishing the office of the Commonwealth Director of Public Prosecutions the retention of those provisions is difficult to justify. That is particularly so now that the Director of Public Prosecutions has the power to take over and discontinue a private prosecution brought in relation to a Commonwealth offence.'
9. Explanatory Memorandum , p. 1.
10.N. Seddon and S. Bottomley, 'Commonwealth Companies and the Constitution' (1998) 26 Federal Law Review 271. See also paragraphs 4.12-4.13 of Report of the Review of the Attorney-General's Legal Practice , March 1997 ('the Logan Report').
22 March 1999
Bills Digest Service
Information and Research Services
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