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Law and Justice Legislation Amendment Bill 2004

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2002-2003- 2004

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

LAW AND JUSTICE LEGISLATION AMENDMENT BILL 2004

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Philip Ruddock MP)

 



LAW AND JUSTICE LEGISLATION AMENDMENT BILL 2004

 

OUTLINE

 

This Bill amends a number of Acts relating to law and justice to correct minor drafting errors, clarify the operation of certain provisions , update references to organisations and other Acts, and update legislation to increase efficiencies and reflect current practices.

 

The Bill amends the following Acts:

 

Aboriginal and Torres Strait Islander Commission Act 1989

Administrative Decisions (Judicial Review) Act 1977

Admiralty Act 1988

Australian Crime Commission Act 2002

Australian Human Rights Commission Act 1986

Bankruptcy Act 1966

Crimes Act 1914

Director of Public Prosecutions Act 1983

Evidence Act 1995

Federal Court of Australia Act 1976

Foreign Proceedings (Excess of Jurisdiction) Act 1984

Freedom of Information Act 1982

Human Rights and Equal Opportunity Commission Act 1986

Industrial Relations (Consequential Provisions) Act 1988

International Arbitration Act 1974

Judiciary Act 1903

Law Officer s Act 1964

Legislative Instruments Act 2003

Native Title Act 1993

Public Order (Protection of Persons and Property) Act 1971

Statutory Declarations Act 1959

Workplace Relations Act 1996

 

 

FINANCIAL IMPACT STATEMENT

 

 

The amendments by the Law and Justice Legislati on Amendment Bill 200 4 have no financial impact.



NOTES ON CLAUSES

 

Clause 1: Short title

1.         The short title of this Act is the Law and Justice Legislation Amendment Act 2004 .

Clause 2: Commencement

2.         This clause provides a table that identifies the day of commencement for each item which is noted in the explanation for each item .   

Clause 3: Schedule(s)

3.         This clause provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule.

Schedule 1 - Amendment s

Law and Justice Legislation Amendment Bill 2004

 

Summary of Amendments

 

Aboriginal and Torres Strait Islander Commission Act 1989

Subclause 28(1) of Schedule 4 of the Aboriginal and Torres Strait Islander Commission Act allows judges of the Federal Court to make rules about fees payable by parties bringing election petitions.  As fees are usually prescribed by regulation rather than determined by judges, the proposed amendment will remove the power of the judges to set the fees.  The fees will be prescribed by regulation (under section 60 of the Federal Court of Australia Act 1976 ) in accordance with usual Government practice.

Administrative Decisions (Judicial Review) Act 1977

It is proposed to make a minor amendments to Schedule 1 of the Administrative Decisions (Judicial Review) Act to renumber a paragraph as “(zaa)” to correct a double reference to paragraph (z). The amendment does not alter the substance or effect of the Schedule.

Section 13 of the Administrative Decisions (Judicial Review) Act provides that a person who is entitled to bring proceedings under the Act in relation to a decision may seek a notice in writing from the person who made the decision setting out, in relation to the decision, the findings on material questions of fact, the evidence on which those findings were based and the reasons for the decision.  Schedule 2 excludes certain classes of decisions from this provision.  The proposed amendments will update Schedule 2 by removing the reference to the Housing Loans Insurance Corporation (which no longer exists) and replacing the reference to the Aboriginal and Torres Strait Islander Commercial Development Corporation with a reference to  Indigenous Business Australia.

Admiralty Act 1988

Subsection 3(1) of the Admiralty Act defines ‘Civil Liability Convention’ as the International Convention on Civil Liability for Oil Pollution Damage 1969 as amended by the 1976 Protocol or the 1984 Protocol.   The 1984 Protocol never entered into force and was superseded by the 1992 Protocol and the 2000 amendments. 

The proposed amendment will update the definition  of 'Civil Liability Convention' in the Admiralty Act by direct reference to the relevant definition in the Protection of the Sea (Civil Liability) Act 1981  which implements the Convention, and its amending protocols, into Australian domestic law. 

Australian Crime Commission Act 2002

Section 19A of the Australian Crime Commission Act allows examiners to request information from Commonwealth agencies.  Schedule 2 lists certain bodies that are not subject to section 19A.  The proposed amendment will update the Schedule by removing the reference to two bodies that no longer exist: the Housing Loans Insurance Corporation and the Pipeline Authority.

Australian Human Rights Commission Act 1986

The proposed amendment will correct a drafting error in subsection 36(10) by replacing the reference to “subsection (1)” with a reference to “subsection (2) or (3)”. The amendment will ensure that the actions of persons who are acting as President or as a Human Rights Commissioner will be valid notwithstanding any irregularity in their appointment.  This validation is consistent with acting appointments generally. 

The commencement of this amendment is tied to the commencement of the Australian Human Rights Commission Legislation Bill 2003, which is currently before Parliament.  If that Bill does not commence, then this amendment will not commence and the existing Human Rights and Equal Opportunity Commission Act 1996 will be amended instead.

Bankruptcy Act 1966

 

This amendment will allow affidavits used for the purposes of the Bankruptcy Act to be sworn before locally engaged diplomatic staff (as authorised under paragraphs 3(c) and (d) of the Consular Fees Act 1955 ), that is, employees of the Commonwealth or the Australian Trade Commission authorised in writing by the Secretary of the Department of Foreign Affairs and Trade.

 

The amendment will address the June 1997 Senate Foreign Affairs, Defence and Trade References Committee report Helping Australians Abroad - A review of the Australian Government’s consular services by allowing more staff to undertake routine notarial acts such as witnessing and certifying certificate thereby allowing consular and diplomatic officers more time to help Australians in difficulty abroad .

 

Crimes Act 1914

Paragraph 15H(c) of the Crimes Act sets out the definition of a ‘controlled operation’ for the purposes of that Act.  The proposed amendment will correct a drafting error by replacing a reference to subsection (3) (which doesn’t exist) with a reference to subsection (2).   

Director of Public Prosecutions Act 1983

The proposed amendments will make three minor changes to the Director of Public Prosecutions Act consequential o n the establishment , by the Judiciary Amendment Act 1999 , of the Australian Government Solicitor as a separate legal entity to the Attorney-General’s Department .  These are :

· t he definition of “relevant proceedings” in subsection 15(3) will be repealed consequential on the repeal of s ubsection 15(2) by the Judiciary Amendment Act . (Subsection 15(2) contained the only reference to the term “relevant proceedings” and therefore the definition is no longer required.)

· Subsection 32(1) will be restructured (without altering its meaning or substance) consequential on the repeal of paragraph 32(1)(b)

· P aragraph 33A(b), which deals with service of a process on the Director of Public Prosecutions, will be amended to replace a reference to service on officers of the Attorney-General’s Department with a reference to service on authorised AGS lawyers.   



Evidence Act 1995

 

Under section 170 of the Evidence Act, certain persons may give evidence of fact about certain listed technical matters (such as proof of business records, tags or labels).  This includes “authorised persons” as defined in section 171.  Currently, where evidence is given outside Australia, only an Australian Diplomatic Officer or an Australian Consular Officer within the meaning of the Consular Fees Act 1955 exercising functions in that place may give this technical evidence.

 

The proposed amendment to the definition of “authorised person” will address the June 1997 Senate Foreign Affairs, Defence and Trade References Committee report Helping Australians Abroad - A review of the Australian Government’s consular services by enabling locally engaged diplomatic staff to give this type of evidence thereby allowing consular and diplomatic officers to spend time on non-administrative issues. 

 

Federal Court of Australia Act 1976

Subsection 20(5) of the Act provides that a single judge or a Full Court may make certain orders or directions.  The proposed amendment will provide that a single judge or a Full Court may make an order that a matter be dismissed for failure of the applicant to attend a hearing relating to the matter.  If such an order is made, the court has full discretion to reinstate the matter should the applicant seek to do so.

It is also proposed that the Full Court or a single judge may make an order that varies or sets aside and order made under paragraphs 20(5)(c) (dismissing a matter for want of prosecution) or (d) (dismissing a matter for failure to comply with a direction or for failure of the applicant to attend a hearing relating to the matters),

 

A similar amendment is required to section 25 of the Act which provides for the exercise of appellate jurisdiction.  Section 25(2B) provides for certain powers to be exercised by a single judge or a Full Court.  Subsection 25(2B) will be amended to include that a single judge or a Full Court may make an order dismissing an  appeal by reason of non-attendance at any hearing by the appellant, and set aside or vary an order made under paragraphs 25(2B)(ba), (bb) and the above order. 

The new powers are designed to enhance the operational effectiveness and efficiencies of the Federal Court by ensuring that a single judge is able to deal with ancilliary and interlocurity imatters without the need to constitute a Full Court.

Foreign Proceedings (Excess of Jurisdiction) Act 1984

Two minor amendments are proposed:

· The definition of “foreign court” in subsection 3(1) will be amended to remove the reference to the Judicial Committee of the Privy Council as the Privy Council as it is no longer an appellate court in the Australian legal system.

· Subsection 8(3) will be amended to correct a drafting error by replacing all reference to subsection (1) with references to subsection (2).

Freedom of Information Act 1982

Six amendments to subsection 4(1) of the FOI Act, the definitions section, are consequential to the removal of the section on eligible case managers (section 6B).  These amendments will remove all references to ‘an eligible case manager’ and make the necessary grammatical amendments to ensure that the provisions make sense.

Another amendment to subsection 4(1) will remove the reference to the ACT Self Government (Consequential Provisions) Act 1998 from the definition of Department.  [Check the reason for this amendment with James Claremont]

A further amendment to subsection 4(1) will correct a grammatical error in the definition of ‘request’ by substituting ‘under’ for ‘in accordance with’.

[nb more FOI Act amendments proposed by James Claremont - Information Law Branch - wait until Bill covers to add in]

Human Rights and Equal Opportunity Commission Act 1986

The proposed amendment will correct a drafting error in subsection 36(10) by replacing the reference to “subsection (1)” with a reference to “subsection (2) or (3)”. The amendment will ensure that the actions of persons who are acting as President or a Human Rights Commissioner will be valid notwithstanding any irregularity in their appointment.  This validation is consistent with acting appointments generally. 

The commencement of this amendment is tied to the commencement of the Australian Human Rights Commission Legislation Bill 2003, which is currently before Parliament.  If that Bill does commence before the law and Justice Legislation Amendment Bill, then this amendment will not commence.

Industrial Relations (Consequential Provisions) Act 1988

Section 79 of the Act provides for the Australian Industrial Court to continue in existence as if it had not been repealed by the Conciliation and Arbitration Act 1904 .  This was to continue its existence for the purpose of certain administrative matters associated with there still being judges appointed to that Court.  As the last remaining Judge resigned on 31 August 1998, there is no longer a requirement to maintain the Court.  The proposed amendment will have the effect of abolishing the court with effect 31 August 1998. 

International Arbitration Act 1974

Section 4 of the International Arbitration Act gives approval for Australia’s accession to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in 1958 by the United Nations Conference on International Commercial Arbitration.  As that accession took place on …………. this approval has been spent and can be removed.

A consequential amendment to subsection 2(1) will remove the reference to section 4.

[NB Mark Zanker has discussed with Meredith Leigh - further changes to come]

Judiciary Act 1903

Subsection 55U(3) of the Judiciary Act refers to giving advice to certain persons instead of those listed under paragraph 5(2)(a) of the Remuneration Tribunal Act 1973 .  As paragraph 5(2)(a) has been repealed and not replaced, the proposed amendments will repealI subsection 55U(3)..

Law Officers Act 1964

Section 13 of the Law Officers Act allows the Solicitor-General, in his or her official capacity, to practise as a barrister in any federal court, any court exercising federal jurisdiction or in any Territory court.  While the majority of the Solicitor-General’s current work relates to matters in federal courts or in State courts exercising federal jurisdiction, it is possible that the Solicitor-General may be briefed to appear in a State court exercising State jurisdiction.  In particular, in light of the High Court’s decision in Re Wakim; Ex parte McNally (1999) 73 ALJR 839 , there may be some matters arising in State courts exercising State jurisdiction (eg cases arising under the transitional provisions of the new Corporations Act) where the Commonwealth may wish the Solicitor-General to appear.

The propose amendment will allow the Solicitor-General to appear in (a) State courts (whether exercising State or Federal jurisdiction) and (b) Commonwealth, State and Territory tribunals.

It is also proposed to amend subsection 17(6) of the Law Officers Act to update the reference to the Telephonic Communications (Interception) Act 1960 with a reference to the Telecommunications (Interception) Act 1979 .  This will ensure that the prohibition on delegating the power to issue telecommunications interception warrants remains and that this power must be exercised by the Attorney-General.  (The power to issue warrants under the Telecommunications (Interception) Act has not been delegated.)

Legislative Instruments Act 2003

It is proposed to make the following minor amendments to the Legislative Instruments Act: 

· The table in subsection 7(1) sets out the instruments that are not legislative instruments for the purposes of the Act.  Unfortunately, a comma remained in the description in Item 20 of that table resulting in a substantial narrowing of the instruments described.  The amendment will correct the meaning by removing the comma.

· It is proposed to make a minor drafting change to subsection 7(2) to remove the second unncessary reference to subsection (1).

· It is proposed to amend subparagraphs 42(2)(b)(i) and 42 (3)(c)(i) to remove the reference to motions to disallow being deferred.  The amendments are consequential on the removal of section 43 from the Act (which would have dealt with deferring motions to disallow).

· It is proposed to make clear that listing instruments in the tables in sections 44 and 54, which provide exemptions against disallowance and sunsetting, does not make them legislative instruments.  Whether an instrument is a legislative instrument depends on whether the instrument meets the definition of legislative instrument   in the Act.     The amendment makes clear that, if an instrument does not fall within the definition, there can be no argument that its inclusion in section 44 or 54 makes it a legislative instrument.  

Native Title Act 1993

Sections 187, 194, and 199D of the Native Title Act provide that certain registers must be maintained by the National Native Title Tribunal and that they must be available for inspection by the public on payment of a prescribed fee.  As it is difficult, in practice, to identify when an inspection fee is payable, the proposed amendments will repeal subsections 187(2), 194(2) and 199D(2) thereby removing reference to prescribed fees. 

This means that people may inspect the registers and be provided with any additional information that they seek under the Tribunal’s general assistance provisions under section 78.

Statutory Declarations Act 1959

Paragraph 8(a) provides that a statutory declaration made under the Act must be in the form set out in the Schedule to the Act.  It is proposed to amend the paragraph to provide that a statutory declaration must be in a prescribed form (which would be set out in regulations) rather than in the form in the Schedule.  The Schedule containing the form will also be removed.  This will allow the form to be revised as necessary in keeping with contemporary drafting practice.

Workplace Relations Act 1996

It is proposed to make a minor amendment to subsection 415(1) will add the words ‘Subject to this section’ to clarify the operation of the subsection.

A further proposed amendment will add two subsections to the end of section 415 to ensure that a single judge or the Full Court has the same powers when acting under the Workplace Relations Act as under the Federal Court of Australia Act 1976.

 It is also proposed to amend clause 340 of Schedule 1B ………. Aboriginal and Torres Strait Islander Commission Act 1989

Item 1

4.         This item removes the power of judges to set fees under s ubclause 28(1) of Schedule   4 of the Aboriginal and Torres Strait Islander Commission Act .  The sub clause currently allows judges of the Federal Court to make rules about fees payable by parties bringing election petitions.  F ees are usually prescribed by regulation rather than determined by judges Following the repeal of subclause 2 8 (1) fees will be prescribed by regulation (under section 60 of the Federal Court of Australia Act 1976 ) in accordance with usual Government practice.

5.         This item commence s at Proclamation or within 6 months of commencement of this Act, to allow time for the regulations to be made.

Administrative Decisions (Judicial Review) Act 1977

Item 2

6.         This item renumbers a paragraph as ( ya ) to correct a double reference to paragraph (z) in Schedule 1 of the Administrative Decisions (Judicial Review) Act.

7.         This item commence s immediately after the commencement of item 1 o f Schedule 6 to the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002 , which incorrectly added the second paragraph (z) to the Schedule.

Item s 3 and 4

8.         Section 13 of the Act provides that a person who is entitled to bring proceedings under the Act in relation to a decision may seek a notice in writing from the person who made the decision setting out, in relation to the decision, the findings on material questions of fact, the evidence on which those findings were based and the reasons for the decision.  Schedule 2 excludes certain classes of decisions from this provision. 

9.         I tem s 3 and 4 update Schedule 2 of the Administrative Decisions (Judicial Review) Act by removing the reference to the Housing Loans Insurance Corporation and the Aboriginal and Torres Strait Islander Commercial Development Corporation (which no longer exist), and add ing a reference to Indigenous Business Australia (which replaced the latter).  

10.       These items commence the day after the Act receives the Royal Assent.

Admiralty Act 1988

Item 5

11.       Subsection 3(1) of the Admiralty Act defines ‘Civil Liability Convention’ as the International Convention on Civil Liability for Oil Pollution Damage 1969 as amended by the 1976 Protocol or the 1984 Protocol.  The 1984 Protocol never entered into force and was superseded by the 1992 Protocol and the 2000 amendments. 

12.       I tem 5 updates the definition of Civil Liability Convention in the Admiralty Act by direct reference to the relevant definition of ‘the Convention’ in the Protection of the Sea (Civil Liability) Act 1981 .  (This Act implements the Convention, and its amending protocols, into Australian domestic law. )  

13.       This item will commence the day after the Act receives the Royal Assent.

Australian Crime Commission Act 2002

Item s 6- 9

14.       These items update Schedule 2 of the Australian Crime Commission Act which lists certain bodies that are not subject to section 19A.  Section 19A allows examiners to request information from Commonwealth agencies.  

15.       These items remove references to the Australian Shipping Commission, the Housing Loans Insurance Corporation, the Pipeline Authority, and the Superannuation Fund Investment Trust , which no longer exist .

16.       These items commence the day after the Act receives the Royal Assent.

Australian Human Rights Commission Act 1986

Item 10

17.       Th is item rectifies a drafting error in subsection 36(10) by replacing the reference to subsection (1) with a reference to subsection (2) or (3) .   The item ensure s that the actions of persons who are acting as President or as a Human Rights Commissioner are valid notwithstanding any irregularity in connection with their appointment.  This validation is consistent with acting appointments generally. 

18.       The commencement of this item is tied to the commencement of the Australian Human Rights Commission Legislation Bill 2003, which is currently before Parliament.  If that Bill does not commence before this Bill receives the Royal Assent , then this amendment will not commence and the existing Human Rights and Equal Opportunity Commission Act 19 8 6 will be amended instead (see Item 38).

Bankruptcy Act 1966

Item s 11 and 12

19.       I tem 11 amend s the Bankruptcy Act to allow affidavits used for the purposes of the Act to be sworn before locally engaged staff at Australian diplomatic and consular missions overseas (as authorised under paragraphs 3(c) and (d) of the Consular Fees Act 1955 ), that is, employees of the Commonwealth or the Australian Trade Commission authorised in writing by the Secretary of the Department of Foreign Affairs and Trade.

20.       Item 12 makes a consequential amendment to the paragraph 262(2)(d) by replacing ‘paragraph (aa), (a), (b) or (c)’ with ‘any of paragraphs (aa) to (c)’, so as to include the new provisions in its scope.  This means that affidavits may also be sworn before a person who is qualified to administer an oath in that place and who is certified by locally engaged staff at Australian diplomatic and consular missions overseas to be so qualified.

21.       These items address the June 1997 Senate Foreign Affairs, Defence and Trade References Committee report Helping Australians Abroad - A review of the Australian Government’s consular services by allowing more staff to undertake routine notarial acts such as witnessing and certifying certificates thereby allowing consular and diplomatic officers to spend greater time on non-administrative matters .

22.       Th e s e item s commence the day after the Act receives the Royal Assent.

Crimes Act 1914

Item 1 3

23.       This item corrects a drafting error in p aragraph 15H(c) of the Crimes Act , which sets out the definition of a ‘controlled operation’ , by replacing a reference to subsection 15I (3) , which is an incorrect cross-reference, with a reference to subsection 15I (2) .  

24.       This item commences immediately after the commencement of item 17 of Schedule 1 to the Measures to Combat Serious and Organised Crime Act 2001 , which added paragraph 15H (c) to the Crimes Act.

Director of Public Prosecutions Act 1983

Items 14-16

25.       These items make minor changes to the Director of Public Prosecutions Act consequential on the establishment, by the Judiciary Amendment Act 1999 , of the Australian Government Solicitor (AGS) as a separate legal entity to the Attorney-General’s Department.

26.       All items commence the day after the Act receives the Royal Assent.

27.       I tem 14 repeals the definition of relevant proceedings in subsection 15(3) consequential on the repeal of subsection 15(2) by the Judiciary Amendment Act.  (Subsection 15(2) contained the only reference to the term relevant proceedings and therefore the definition is no longer required.)

28.       Item 15 restructures s ubsection 32(1) (without altering its meaning or substance) consequential on the repeal of paragraph 32(1)(b) .

29.       I tem 16 amends p aragraph 33A(b), which deals with service of a process on the Director of Public Prosecutions, to replace a reference to service on officers of the Attorney-General’s Department with a reference to service on authorised AGS lawyers.  

Evidence Act 1995

Item 1 7

30.       Under section 170 of the Evidence Act, certain persons may give evidence of fact about certain listed technical matters (such as proof of business records, tags or labels).  This includes ‘authorised persons’ as defined in section 171.  Currently, where evidence is given outside Australia, only an Australian Diplomatic Officer or an Australian Consular Officer within the meaning of the Consular Fees Act 1955 exercising functions in that place may give this formal evidence.

31.       This item amends the definition of authorised person in the Evidence Act to address the June 1997 Senate Foreign Affairs, Defence and Trade References Committee report Helping Australians Abroad - A review of the Australian Government’s consular services .   The amendmen t will enabl e locally engaged staff at Australian diplomatic and consular missions overseas (as authorised under paragraphs 39c) and (d) of the Consular Fees Act 1955 ) to give evidence of fact thereby allowing consular and diplomatic officers to spend grea ter time on non-administrative issues.

32.       This item commences the day after the Act receives the Royal Assent.

Federal Court of Australia Act 1976

Items 18-20

33.       These items amend the Federal Court of Australia Act to enhance the operational effectiveness and efficiencies of the Federal Court by ensuring that a single judge is able to deal with ancillary and interlocutory matters without the need to constitute a Full Court.   All powers extended to single judges are existing powers exercised by the Full Court .

34.       I tem 18 amends subsection 20(5) of the Act , which provides that a single judge or a Full Court may make certain orders or directions , including an order that the matter be dismissed for failure to comply with a direction of the court (paragraph 20(5)(d)) .  The amendment will allow a single judge or a Full Court to also make an order that a matter be dismissed for failure of the applicant to attend a hearing relating to the matter.  

35.       This item also allow s the Full Court or a single judge to make an order that varies or sets aside an order made under paragraphs 20(5)(c) (dismissing a matter for want of prosecution) or (d) (dismissing a matter for failure to comply with a direction or for failure of the applicant to attend a hearing relating to the matters) .   This means that any order dismissing a matter can be set aside and the matter reinstated.

36.       I tem 19 amends section 25 of the Act , which provides for the exercise of appellate jurisdiction.  Section 25(2B) provides for certain powers to be exercised by a single judge or a Full Court.  Subsection 25(2B) will be amended to provide that a single judge or a Full Court may make an order dismissing an appeal by reason of non-attendance at any hearing by the appellant .  The amendment will also enable a single judge to set aside or vary such orde rs

37.       I tem 20 is an application provision that means that the amendments made by items 18 and 19 only apply to matters ( proceedings ) or appeals that commence on or after the day on which those items commence.  

38.       These items commence the day after the Act receives the Royal Assent.

Foreign Proceedings (Excess of Jurisdiction) Act 1984

Item 21

39.       This item amends t he definition of foreign court in subsection 3(1) to remove the reference to the Judicial Committee of the Privy Council as the Privy Council as it is no longer an appellate court in the Australian legal system.

40.       This item commences the day after the Act receives the Royal Assent.

Item 2 2

41.       This item amends s ubsection 8(3) to correct a drafting error by replacing all reference s to subsection (1) with references to subsection (2).

42.       This item commences the day after the Act receives the Royal Assent.

Freedom of Information Act 1982

Item s 23 -37

43.       These items make minor amendments to the Freedom of Information Act and commence the day after the Act receives the Royal Assent.

44.       Item 23 make s a minor modernisation of the drafting of the definition of ‘request’.  The amendment will remove ‘in accordance with’ and insert ‘under’. 

45.       I tem 24 makes an amendment to subsection 45(1) .  Section 45 was amended in 1991 to introduce new wording into subsection 45(1).  However there appears to have been an oversight at the time and the reference to ‘other than the Commonwealth’ should in fact be to ‘ ( other than an agency or the Commonwealth ) ’.  This is necessary because not all agencies covered by the Freedom of Information Act are part of the Commonwealth.  The amendment will also bring subsection 45(1) into line with paragraph 45(2)(b) of the Act.  Th is amendment corrects the drafting error .

46.       Items 25 to 37 make minor amendments to Schedules 1, 2 and 3 to remove references to repealed legislation and abolished companies, replacing the latter with new companies where relevant.     

Human Rights and Equal Opportunity Commission Act 1986

Item 3 8

47.       This item rectif ies a drafting error in subsection 36(10) by replacing the reference to subsection (1) with a reference to subsection (2) or (3) .   It ensure s that the actions of persons who are acting as President or Human Rights Commissioner are valid notwithstanding any irregularity in connection with their appointment.  This validation is consistent with acting appointments generally. 

48.       The commencement of this item is tied to the commencement of the Australian Human Rights Commission Legislation Bill 2003, which is currently before Parliament.  If that Bill commences before this Act receives the Royal Assent, then this amendment will not commence and the Australian Human Rights Commission Act 1986 will be amended instead (see Item 10).

Industrial Relations (Consequential Provisions) Act 1988

Item 3 9

49.       This item has the effect of abolishing the Australian Industrial Court with effect 31 August 1998.  Section 79 of the Act provides for the court to continue in existence as if it had not been repealed by the Conciliation and Arbitration Act 1904 .  This was to continue its existence for the purpose of certain administrative matters associated with existing judicial appointments .  As the last remaining Judge resigned on 31   August 1998, there is no longer a requirement to maintain the Court. 

50.       This item commences on 31 August 1998.

International Arbitration Act 1974

Item s 40 -42

51.       Th ese item s amend section 4 of the International Arbitration Act which gives approval for Australia’s accession to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in 1958 by the United Nations Conference on International Commercial Arbitration.  As that accession took place on 26 March 19 75 this approval has been spent and can be removed.

52.       The items also make consequential amendments to subsections 2(1) and 10(2) to remove references to section 4.

53.       These items commence the day after the Act receives the Royal Assent.

Judiciary Act 1903

Item 43

54.       This item repeals s ubsection 55U(3) of the Judiciary Act which refers to giving advice to certain persons instead of those listed under paragraph 5(2)(a) of the Remuneration Tribunal Act 1973 .  As paragraph 5(2)(a) has been repealed and not replaced, the proposed amendments will repeal subsection 55U(3).

55.       This item will commence the day after the Act receives the Royal Assent.

Law Officers Act 1964

Item 44

56.       Section 13 of the Law Officers Act allows the Solicitor-General, in his or her official capacity, to practise as a barrister in any federal court, any court exercising federal jurisdiction or in any Territory court.  While the majority of the Solicitor-General’s current work relates to matters in federal courts or in State courts exercising federal jurisdiction, it is possible that the Solicitor-General may be briefed to appear in a State court exercising State jurisdiction.  In particular, in light of the High Court’s decision in Re Wakim; Ex parte McNally (1999) 73 ALJR 839 , there may be some matters arising in State courts exercising State jurisdiction (eg cases arising under the transitional provisions of the new Corporations Act) where the Commonwealth may wish the Solicitor-General to appear.

57.       I tem 44 amends section 13 of the Act to allow the Solicitor-General to appear in (a)   State courts (whether exercising State or Federal jurisdiction) and (b) Commonwealth, State and Territory tribunals.

58.       This item will commence the day after the Act receives the Royal Assent.

Item 45

59.       This item amend s subsection 17(6) of the Law Officers Act to update the reference to the Telephonic Communications (Interception) Act 1960 by replacing it with a reference to the Telecommunications (Interception) Act 1979 .  This will ensure that the prohibition on delegating the power to issue telecommunications interception warrants remains and that this power must be exercised by the Attorney-General.  (The power to issue warrants under the Telecommunications (Interception) Act has not been delegated.)

60.       This item will commence the day after the Act receives the Royal Assent.

Legislative Instruments Act 2003

Item s 4 6 - 50

61.       These items make minor amendments to the Legislative I nstruments Act and commence immediately after the commencement of section 3 of the Legislative Instruments Act , so that the amendments are in place as soon as the Act commences.

62.       I tem 46 makes a minor amendment to item 20 of the table in subsection 7(1) , which sets out the instruments that are not legislative instruments for the purposes of the Act.  The amendment removes a comma which had the unintended effect of narrowing the range of instruments covered by the item .

63.       I tem 47 makes a minor amendment to subsection 7(2) to clarify its intended meaning.

64.       Item 48 amend s subparagraphs 42(2)(b)(i) and 42 (3)(c)(i) to remove the reference to motions to disallow being deferred.  The amendments are consequential on the removal of section 43 from the Act (which would have dealt with deferring motions to disallow).   Section 43 was removed during the debate on the Legislative Instruments Act.

65.       I tem 49 make s clear that listing instruments in the table in section 44 which provide s exemptions from the disallowance regime , does not make them legislative instruments.  Whether an instrument is a legislative instrument depends on whether the instrument meets the definition of legislative instrument   in the Act.     The amendment makes clear that, if an instrument does not fall within the definition, there can be no argument that its inclusion in section 44 makes it a legislative instrument.  

66.       I tem   50 make s clear that listing instruments in the table in section 54 which provides exemptions from the disallowance regime, does not make them legislative instruments.  Whether an instrument is a legislative instrument depends on whether the instrument meets the definition of legislative instrument   in the Act.     The amendment makes clear that, if an instrument does not fall within the definition, there can be no argument that its inclusion in section 54 makes it a legislative instrument.  

Native Title Act 1993

Item s 51-53

67.       Sections 187, 194 and 199D of the Native Title Act provide for the inspection of certain registers which are to be established and kept by the Native Title Registrar for the National Native Title Tribunal.  Subsections 187(2), 194(2) and 199D(2) provide for inspection of such registers by members of the public upon payment of a prescribed fee. 

68.       Th ese item s repeal these subsections to enabl e public access to the registers free of charge.  It is no longer considered appropriate to require payment of a fee for such access, particularly given that the Tribunal is currently able to provide extensive information services free of charge under other provisions of the Native Title Act.  The imposition of a specific fee for access to the registers is difficult to administer and runs counter to the objective of increasing access to information on native title processes.  Removal of the reference to prescribed fees would also facilitate the provision of on-line access to information from the registers.

69.       These items commence the day after the Act receives the Royal Assent.

Public Order (Protection of Persons and Property) Act 1971

Item 54

70.       Th is item amend s section 13A of the Public Order (Protection of Persons and Property) Act . Section 13A defines ‘court premises’ for the purposes of, among other things, identifying the area within which certain protective powers might be exercised. 

71.       The se items clarify the definition to cover premises that are occupied or used, whether permanently, temporarily, under a lease or otherwise in connection with the sittings, or any other operation, of the court.

72.       Th is item will commence the day after the Act receives the Royal Assent.

Statutory Declarations Act 1959

Item s 5 5 and 5 6

73.       Paragraph 8(a) of the Statutory Declarations Act provides that a statutory declaration made under the Act must be in the form set out in the Schedule to the Act.  This item amend s the paragraph to provide that a statutory declaration must be in a prescribed form (which would be set out in regulations) rather than in the form in the Schedule.  The Schedule containing the form will also be removed.  This will allow the form to be revised as necessary in keeping with contemporary drafting practice.

74.       These item s commence at Proclamation or within 6 months of commencement of this Act, to allow time for the regulations to be made.

Workplace Relations Act 1996

Item s 5 7 - 59

75.       These items amend section 415 , and subsection 340 (3) of Schedule 1B , of the Workplace Relations Act to ensure that a single judge o r the Full Court ha ve the same powers when acting under the Workplace Relations Act as under the Federal Court of Australia Act 1976 These items include an application provision that means that the amendments only apply to matters (proceedings) that commence on or after the day on which those items commence.

76.       These items commence the day after the Act receives the Royal Assent.