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Jurisdiction of Courts Legislation Amendment Bill 2001

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1998-1999-2000-2001

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

JURISDICTION OF COURTS LEGISLATION AMENDMENT BILL 2001

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by the authority of the Attorney-General,

the Honourable Daryl Williams AM QC MP)

 



TABLE OF CONTENTS

                                                                                                                                    Page

GENERAL OUTLINE                                                                                     1

FINANCIAL IMPACT STATEMENT                                                                       2

NOTES ON CLAUSES                                                                                              3

Schedule 1—Amendments relating to appeals from                                                       3

                    the Supreme Court of a Territory

   Part 1—Amendments                                                                                                3

   Part 2—Application and transitional provisions                                                           5

Schedule 2—Amendments relating to the Federal Court of Australia                   7

   Part 1—Amendments                                                                                                7

   Part 2—Application of amendments                                                               13



JURISDICTION OF COURTS LEGISLATION AMENDMENT BILL 2001

 

GENERAL OUTLINE

The Jurisdiction of Courts Legislation Amendment Bill 2001 will amend the Federal Court of Australia Act 1976 and the Judiciary Act 1903 to allow the Australian Capital Territory (ACT) to establish an ACT Court of Appeal.  These amendments are in Schedule 1 of the Bill.   Schedule 2 makes amendments to the Federal Court of Australia Act 1976 to abolish the office of judicial registrar and to make some changes to the practices and procedures of the Federal Court. 

Following self-government for the ACT, responsibility for the ACT Supreme Court was transferred to the ACT on 1 July 1992.  However, the Federal Court continued to exercise appellate jurisdiction for the ACT Supreme Court.  It is now appropriate for the ACT to establish its own appeal court with the consequent removal of the appellate jurisdiction from the Federal Court.

The ACT has passed the Supreme Court Amendment Act 2001 which provides for an ACT Court of Appeal to hear appeals from the ACT Supreme Court.  The provisions in this Bill complement the ACT legislation. 

The ACT legislation provides that the ACT Court of Appeal comprises all the ACT Supreme Court judges, resident, additional and acting.  The legislation also provides for the appointment of a President of the Court of Appeal. 

It is expected that the current system of Federal Court judges being appointed as additional judges to the ACT Supreme Court will continue.  These judges will also be eligible to sit on the Court of Appeal.

There are transitional provisions in the Bill which provide that where the substantive hearing in an appeal from the ACT Supreme Court has already commenced in the Federal Court, it will continue to be heard in the Federal Court. 

The Bill will make a number of other amendments to the Federal Court Act.

One amendment will provide for the abolition of the office of judicial registrar.  There are no longer any judicial registrars appointed to the Federal Court.  With the establishment of the Federal Magistrates Service it is no longer necessary to retain the position of judicial registrar as the Federal Magistrates Service would now handle less complex work that previously was considered suitable for judicial registrars.

Other amendments to the Federal Court Act make some changes to the practices and procedures of the Federal Court.  These amendments are of a minor policy nature.

 

 

The Bill amends the Federal Court Act to:

·         allow the Registrar to appoint as a Marshal a person who is not engaged under the Public Service Act 1999;

·         allow the Chief Justice to refer part of a matter to the Full Court;

·         amend the Federal Court’s interlocutory jurisdiction where a matter is referred by a tribunal or a court;

·         provide that leave to appeal to the Full Court is required when specified in the Rules for specified interlocutory matters;

·         allow a single judge in an appeal to order that an appeal be dismissed for want of prosecution or failure to comply with a direction of the Court;

·         allow a writ, commission or process to be signed by affixing an electronic signature;

·         allow locally engaged diplomatic staff to witness affidavits; and

·         provide clearer provision for the use of video and audio links in proceedings.

 

FINANCIAL IMPACT STATEMENT

 

The Bill will not have a significant financial impact.

 



 

NOTES ON CLAUSES

 

 

Clause 1—Short Title

1.       This clause provides that the Act may be cited as the Jurisdiction of Courts Legislation Amendment Act 2001

Clause 2—Commencement

2.       Clause 2 provides that, apart from Schedules 1 and 2 which commence on a day to be fixed by Proclamation, the Act commences on Royal Assent.  However, if Schedule 2 does not commence within the period of 6 months beginning on the day on which the Act receives the Royal Assent, it commences on the first day after the end of that 6 month period.

Clause 3—Schedule(s)

3.       Clause 3 provides that subject to section 2, each Act referred to in a Schedule is amended or repealed in accordance with the applicable terms in the Schedule concerned and also provides that any other item in a Schedule has effect according to its terms.

Schedule 1—Amendments relating to appeals from the Supreme Court of a Territory

Part 1—Amendments

Federal Court of Australia Act 1976

Item 1—At the end of paragraph 24(1)(b)

4.       Paragraph 24(1)(b) provides that the Federal Court of Australia has jurisdiction to hear appeals from judgments of the Supreme Court of a Territory.  Item 1 amends the paragraph to exclude the Federal Court from hearing appeals from judgments of the Supreme Courts of the Northern Territory or the Australian Capital Territory.  This amendment makes redundant subsection (6) which provides that the Supreme Court of a Territory, as referred to in subsection (1) does not include the Supreme Court of the Northern Territory.  Accordingly, subsection (6) is repealed by Item 5.

Item 2—Paragraph 24(1)(c)

5.       Paragraph 24(1)(c) provides that the Federal Court has jurisdiction to hear appeals from judgments of a court of a State, other than a Full Court of the Supreme Court of a State, exercising federal jurisdiction, in such cases as are provided by any other Act.  Item 2 amends paragraph 24(1)(c) to ensure that the Federal Court can hear appeals from the Supreme Courts of the ACT and the Northern Territory exercising federal jurisdiction, other than Full Courts of those territories.  This means that the State Supreme Courts, the ACT Supreme Court and the Northern Territory Supreme Court will be treated consistently.

Item 3—Subsections 24(1AA), (2), (2A), (3) and (4)

6.       These subsections are repealed.  Subsection 24(1AA) provides that an appeal may not be brought to the Federal Court from a judgment of the ACT Supreme Court under the ACT Electoral Act 1992 .  This provision is no longer necessary.  An equivalent provision is now in the ACT Supreme Court Amendment Act 2001 .  Subsection (2A) currently provides that an appeal may not be brought to the High Court from a judgment of the Supreme Court under the ACT Electoral Act.  As this provision deals with the appellate jurisdiction of the High Court it is being moved to the Judiciary Act (see item 10).

7.       Subsections 24(2), (3) and (4) refer to appeals or rights to appeal from the Supreme Court of a Territory before the commencement of the Federal Court Act.  As the Act commenced on 1 February 1977 these provisions are being repealed as spent provisions. 

Item 4—Subsection 24(5)

8.       Subsection 24(5) provides that references to the Full Court of the Supreme Court of a State means a Supreme Court of a State when constituted by 2 or more judges and includes such a Court sitting as the Court of Appeal of the State.  Item 4 amends the subsection to include the Supreme Court of a Territory.

Item 5—Subsection 24(6)

9.       Subsection 24(6) provides that in subsections (1) and (2), “Supreme Court of a Territory” does not include the Supreme Court of the Northern Territory.  This ensures that an appeal cannot be brought from the Supreme Court of the Northern Territory to the Federal Court.  Item 5 repeals the subsection because it is no longer necessary as subsection (1) is amended by item 1 to exclude appellate jurisdiction from the Supreme Court of the Northern Territory and subsection (2) is repealed by item 3.

Item 6—Section 30A

10.   Section 30A provides for the bringing of a reference appeal, on a question of law, to the Federal Court regarding the trial of a person on an indictment in the Supreme Court of the Australian Capital Territory.  Item 6 repeals this section.

Item 7—Subsection 32A(1)

11.   Subsection 32A(1) currently provides that where a matter is pending in the Federal Court, a State Supreme Court or the Northern Territory Supreme Court has jurisdiction to determine any application that may be made to a judge of the Federal Court in chambers.  Item 7 amends this provision to include the Supreme Court of the ACT.

Item 8—Paragraph 59(2)(ca)

12.   Paragraph 59(2)(ca) enables Rules of the Federal Court to be made about the manner in which a submission may be made under subsection 30A(1).  Item 8 repeals this paragraph as the whole of section 30A is repealed by item 6.

Judiciary Act 1903

Item 9—Subsection 35AA(1)

13.   Subsection 35AA(1) confers appellate jurisdiction on the High Court of Australia to hear and determine appeals from judgments of the Supreme Court of the Northern Territory.  Item 9 amends subsection 35AA(1) to confer appellate jurisdiction on the High Court to hear and determine appeals from judgments of the Supreme Court of a Territory, not just the Northern Territory.  Accordingly, the heading is similarly amended. 

Item 10—After subsection 35AA(2)

14.   Item 10 inserts a new subsection 35AA(2A) preventing appeals being brought to the High Court from a judgment of the Supreme Court of the Australian Capital Territory when that Court is known as the Court of Disputed Elections under subsection 252(1) of the Electoral Act 1992 of that Territory.  This replaces subsection 24(2A) of the Federal Court of Australia Act 1976 which is repealed by item 3.

Item 11—Subsection 35AA(3)

15.   Subsection 35AA(3) subjects the conferral of appellate jurisdiction on the High Court, as provided in subsection (1), to any special provision made by an Act other than the Judiciary Act 1903 which prevents or permits appeals from the Supreme Court of the Northern Territory.  Item 11 amends the subsection to refer to appeals from the Supreme Court of a Territory.

Part 2—Application and transitional provisions

Item 12—Definitions

16.   Item 12 defines ‘ACT Supreme Court’ as ‘the Supreme Court of the Australian Capital Territory’ and ‘Federal Court’ as ‘the Federal Court of Australia’.

Item 13—Application of amendments

17.   Item 13 sets out when certain amendments in Schedule 1 will take place.

(1)     The amendment made by item 1 preventing the Federal Court from hearing appeals from judgments of the Supreme Courts of the Australian Capital Territory will apply in relation to:

(a)     appeals instituted on or after the commencement of item 1; and

(b)    appeals instituted before the commencement of item 1 but in respect of which the Federal Court has not begun a substantive hearing before that commencement; and

(c)     cases stated or questions reserved under section 26 of the Federal Court of Australia Act 1976 on or after the commencement of item 1.

(2)     The amendment made by item 2 to allow the Federal Court to hear appeals from the Supreme Court of the ACT and the Supreme Court of the Northern Territory, other than Full Courts of those territories will apply in relation to:

(a)     appeals from judgments of a court given on or after the commencement of item 2; and

(b)    cases stated or questions reserved under section 26 of the Federal Court of Australia Act 1976 on or after the commencement of item 2.

(3)     The amendment made by item 7 in relation to the ACT Supreme Court hearing matters in chambers will apply in relation to matters pending in the Federal Court on or after the commencement of item 7.

Item 14—Transfer of certain matters to the ACT Supreme Court

18.   Item 14 provides that the following are transferred to the ACT Supreme Court from the Federal Court, if the Federal Court had not yet begun the substantive hearing before the day on which item 1 commences, on that day:

(1)     an appeal; and

 

(2)     a case stated or a question reserved for the consideration of the Federal Court under section 26 of the Federal Court of Australia Act 1976 .

19.   Subitem (3) provides that where a question was submitted for determination of a Full Court of the Federal Court under section 30A of the Federal Court of Australia Act , and the Federal Court had not begun the substantive hearing of the question before the day on which item 6 commences, then the question is transferred to the ACT Supreme Court on that day.

20.   Subitem (4) provides that if an appeal, case or question is transferred to the ACT Supreme Court, then all documents filed with the Federal Court in relation to the matter are to be transferred to the ACT Supreme Court.  Any money lodged with the Federal Court in relation to the matter is taken to be money lodged with the ACT Supreme Court and everything done in the Federal Court in relation to the matter, is taken to have been done in the ACT Supreme Court.

Item 15—Regulations

21.   Item 15 provides that the Governor-General may make regulations prescribing matters required or permitted by Schedule 1 to be prescribed, or that are necessary or convenient to be prescribed for carrying out or giving effect to Schedule 1 and, in particular, regulations of a transitional or saving nature arising from the amendments made by Schedule 1.

 

Schedule 2—Amendments relating to the Federal Court of Australia

 

Part 1—Amendments

 

Federal Court of Australia Act 1976

 

Item 1—Section 4

22.   Item 1 provides a definition of audio link meaning facilities to enable audio communication between persons in different places.

Item 2—Section 4

23.   Item 2 provides a definition of video link as meaning facilities that enable audio and visual communication between persons in different places.

Item 3—Division 2 of Part II

24.   Item 3 repeals Division 2 of Part II.  This Division contains provisions for the appointment, terms and conditions and exercise of powers for judicial registrars.  There are no longer any judicial registrars appointed to the Federal Court.  Further, the establishment of the Federal Magistrates Service means that it is no longer necessary to retain the position of judicial registrar as the Federal Magistrates Service would now handle work that was previously considered suitable for judicial registrars.

Item 4—Subsection 18N(4)

25.   Subsection 18N(4) provides that officers of the Court, except for the Registrar and the Deputy Sheriff, must be persons engaged under the Public Service Act 1999 .  Item 4 amends the subsection to include Marshals in the officers who do not have to be persons engaged under the Public Service Act 1999 .

Item 5—Subsection 18N(5)

26.   The Court has experienced difficulty when a person who is not engaged under the Public Service Act needs to be appointed as a Marshal.  This can arise, for example, when a vessel to be arrested is in a part of Australia where there are no staff of the Federal Court or other appropriate Commonwealth employees.  This amendment would allow a person not engaged under the Public Service Act to be appointed as a Marshal.

Item 6—Subsection 20(1A)

27.   Subsection 20(1A) provides that the Chief Justice may direct that the Full Court determine a matter in the original jurisdiction of the Court.  Item 6 amends subsection 20(1A) to expressly provide that the Chief Justice may direct that part of a matter be referred to the Full Court.  This amendment makes it clear that the Court has jurisdiction to refer part of a matter, as well as a whole matter, to the Full Court.

Item 7—Subsection 20(2)

28.   Subsection 20(2) provides for the Full Federal Court to exercise jurisdiction in a matter coming before it from a tribunal or authority constituted by a person who is a judge of the Federal Court or another court created by the Parliament.  Item 7 provides that subsection 20(2) is subject to new subsections (3) and (5) which are inserted by item 9.

Item 8—Subsection 20(2)

29.   Item 8 makes a minor correction to subsection 20(2).

Item 9—At the end of section 20

30.   Item 9 inserts new subsections 20(3), (4), (5) and (6).

31.   New subsection 20(3) will provide that certain matters may be heard and determined by a single Judge or by a Full Court. These are applications: for leave or special leave; for extension of time; for leave to amend the grounds of an application or appeal, or to stay a decision of a tribunal or authority mentioned in subsection (2).

32.   New subsection 20(4) will enable the Rules of the Court to make provision enabling applications of the kind mentioned in the previous subsection to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing.

33.   New subsection 20(5) provides that, in a matter of the type mentioned in subsection (2), a single Judge or a Full Court may make certain orders or directions.  These are: to join or remove a party; make an order by consent disposing of the matter; make an order that the matter be dismissed for want of prosecution; make an order that the matter be dismissed for failure to comply with a direction of the Court or give directions about the conduct of the matter, including directions about the use of written submissions and the limiting of time for oral argument.

34.   New subsection 20(6) enables the Rules of the Court to make provision for the powers in new subsection 20(5) to be exercised, subject to conditions prescribed by the Rules, without an oral hearing.

Item 10—Subsection 24(1A)

35.   Subsection 24(1A) provides that an appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.  Item 10 amends the subsection to provide that the interlocutory judgment is of a type prescribed by the Rules of Court.  The Rules would subsequently be amended to list the relevant types of interlocutory judgments for the purposes of subsection 24(1A).  The amendment is designed to remove any uncertainty about what is an interlocutory judgment for the purposes of the subsection.

Item 11—After paragraph 25(2B)(b)

36.   Section 25 of the Act provides for the exercise of appellate jurisdiction.  Subsection 25(2B) provides for certain powers to be exercised by a single judge or a Full Court.  Item 11 inserts new provisions which provide that a single Judge or a Full Court may make an order that an appeal to the Court be dismissed for want of prosecution or that an appeal to the Court be dismissed for failure to comply with a direction of the Court.

Item 12—Paragraph 27(b)

37.   Item 12 makes a minor amendment, removing the word ‘telephone’ and substituting ‘audio link’, to make it consistent with the amendments made by Item 22 regarding evidence being given by audio link.

Item 13—Paragraph 37(b)

38.   Section 37 of the Act currently provides that all process issued by the Court shall be signed by the Registrar, a District Registrar or authorised officer.  In order to facilitate the processing of matters electronically item 13 amends section 37 to allow for process to be signed by electronic signature by the Registrar, a District Registrar or authorised officer. 

Item 14—At the end of section 37

39.   Item 14 amends section 37 to allow an authorised officer to affix the electronic signature of the Registrar.  Item 14 also provides a definition of the term ‘electronic signature’ being a unique identification in an electronic form approved by the Registrar.

 

Item 15—At the end of paragraphs 45(2)(a), (b) and (c), and Item 16—After paragraph 45(2)(c)

40.   Items 15 and 16 insert new provisions to allow locally engaged diplomatic staff to witness affidavits.  These amendments will bring the provisions in this Bill into line with amendments made to various other Acts regarding the witnessing of documents, by allowing locally engaged staff at Australian consular offices to undertake such tasks.

Item 17—Paragraph 45(2)(e)

41.   Item 17 makes consequential amendments to the paragraph.

Item 18—At the end of subsection 47(1)

42.   Item 18 adds in a note directing the reader to sections 47A to 47F of the Act for testimony etc by video or audio link or other appropriate means.

Item 19—Subsections 47(1A), (1B) and (1C)

43.   Item 19 repeals these subsections which relate to testimony by video link, telephone or other appropriate means.  A new provision, section 47A, which is added by item 22, covers testimony by video link, audio link or other appropriate means.

Item 20—Subsection 47(6)

44.   Item 20 makes a consequential amendment subsection 47(6).

Item 21—At the end of subsection 47(6)

45.   Item 21 adds in a note referring the reader to sections 47A to 47F for testimony etc by video link, audio link or other appropriate means.

Item 22—After section 47

46.   Item 22 inserts new sections 47A-47G regarding the use of video and audio technology and other appropriate means for the taking of submissions and evidence. The new provisions are modelled on sections 66 to 73 of the Federal Magistrates Act 1999 and provide clearer provision for the use of this technology.

47A Testimony by video link, audio link or other appropriate means

47.   New section 47A sets out the procedures for giving testimony by video link, audio link or other appropriate means.  Section 47A replaces subsections 47(1A), (1B) and (1C).  Section 47A is based on section 66 of the Federal Magistrates Act.

48.   This section allows the Federal Court to direct that evidence may be given by video link, audio link or other appropriate means.  Items 1 and 2 of Schedule 2 amend section 4 of the Act to insert definitions of video link and audio link.  Video link is defined to mean facilities, such as closed-circuit television, that enable audio and visual communication between persons in different places.  Audio link is similarly defined to mean facilities, such as telephones, that enable audio communication between persons at different places.

49.   New subsection 47A(2) provides that any testimony must be given on oath or affidavit unless the person is in a foreign country whose laws forbid or make it inconvenient for the person to give an oath or affirmation and the Court considers that it is appropriate for testimony to be given otherwise than on oath or affirmation.  The exception to giving testimony on oath or affirmation is because in some countries it is not permissible for an oath or affirmation to be administered to a witness taking part in a foreign proceeding. 

50.   New subsection 47A(3) provides that if testimony is not given on oath or affirmation, the Court may give the testimony such weight as it thinks fit. 

51.   New subsection 47A(4) provides that the Court may direct testimony to be given by video or audio link or other appropriate means, on its own initiative or on the application of a party to the proceedings.

52.   The Court may direct the giving of testimony from any place within or outside Australia.  However, new subsection 67A(5) provides that this clause does not apply if the person giving testimony is in New Zealand.  The Evidence and Procedure (New Zealand) Act 1994 provides arrangements for obtaining evidence for proceedings in each country from witnesses in the other country, including arrangements for the use of video or audio links. 

47B Appearances or submissions by video link, audio link or other appropriate means

53.   Section 47B clarifies the situation with respect to appearances or submissions by video link, audio link or other appropriate means.  The section provides that on application of a party or the Court’s or Judge’s own initiative, the Court or a Judge may allow a person to appear or make a submission by video link or audio link or other appropriate means.  Subsection 47B(3) provides that section 47B does not apply if a person is appearing in New Zealand.  Section 47B is in line with sections 67 and 68 of the Federal Magistrates Act. 

47C Conditions for use of video links, audio links or other appropriate means

54.   Section 47C sets out the technical requirements that must be satisfied for use of video links, audio links or other appropriate means.  These conditions include that the place where the Court or the Judge is sitting is equipped with adequate facilities for seeing and hearing (in the case of video link) or hearing (in the case of audio link) the person giving testimony, appearing or making submissions.  Similarly, that there are adequate facilities at the place where the person is giving testimony, appearing or making the submission.  Further, section 47C provides that conditions may be prescribed by the Rules of the Court.  Section 47C is based on section 69 of the Federal Magistrates Act. 

47D Putting documents to a person by video link, audio link or other appropriate means

55.   In general a person cannot be questioned about a document unless the person is given a copy of the document.  The process of giving a copy of the document to the person, is called putting a document to the person.  Section 47D provides for the putting of documents to a person by video link or audio link or other appropriate means.  Where the document, to be put to the person being examined or appearing, is physically present where the Court or the Judge is sitting, the document may be transmitted and put to the person.  Where the document is physically located with the person, it can be put to them and transmitted to the place where the Court or the Judge is sitting.  Section 47D is based on section 70 of the Federal Magistrates Act.

47E Administration of oaths and affirmations

56.   Section 47E concerns administration of oaths and affirmations by video or audio link or other appropriate means.  The section provides that the administration of the oath or affirmation corresponds as nearly as practicable to the way in which it would be administered if the person was in the place where the Court or the Judge is sitting.  Alternatively the Court or Judge may allow another person who is present to administer the oath or affirmation.  This section is based on section 71 of the Federal Magistrates Act.

47F Expenses

57.   Section 47F provides that the Court or a Judge may make orders for the payment of expenses incurred in the giving of testimony, the appearance or the making of submissions by video link, audio link or other appropriate means.  This section is based on section 72 of the Federal Magistrates Act.

47G New Zealand proceedings

58.   Section 47G provides that section 47A to 47F which relate to proceedings by video or audio link do not affect the operation of the Evidence and Procedure (New Zealand) Act 1994 . Section 47G is based on section 73 of the Federal Magistrates Act.

Item 23—Paragraphs 59(2)(ta), (tb), and (v)

59.   Item 23 makes a consequential amendment substituting “telephone” with “audio link” to provide consistency with other sections of the Act.

 

 

Item 24—Paragraph 59(2A)(a)

60.   Item 24 deletes the word “telephone” and replaces it with “audio link” to provide consistency with other sections of the Act.

 

Part 2—Application of amendments

 

Item 25 Application of amendments

61.   Item 25 sets out when certain amendments in Schedule 2 will take place.



(1)    The amendment made by item 6 which expressly provides that the Chief Justice may direct that part of a matter be referred to the Full Court, applies in relation to matters coming before the Court before, on or after the commencement of item 25.

(2)    The amendments made by items 7,8 and 9 which relate to matters coming before the Court from a tribunal or authority (other than a court) constituted by a Judge or of a another court created by Parliament, apply in relation to matters coming before the Court after the commencement of item 25.

(3)    The amendment made by item 10 regarding appeals brought from an interlocutory judgment applies in relation to appeals brought to the Court after the commencement of item 25.

(4)    The amendment made by item 11 which provides that a single Judge or a Full Court may make an order that an appeal to the Court be dismissed for want of prosecution or that an appeal to the Court be dismissed for failure to comply with a direction of the Court, applies in relation to appeals brought to the Court after the commencement of item 25.

(5)    The amendments made by items 13 and 14 apply in relation to documents issued from the Court after the commencement of item 25.

(6)    The amendments made by items 1, 2, 12, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 apply in relation to proceedings instituted in the Court before, on or after the commencement of item 25.