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Thursday, 5 February 2009
Page: 479

Senator WONG (Minister for Climate Change and Water) (3:38 PM) —I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—


This bill contains a range of measures to improve the efficient operation of the federal courts.

Court efficiency is important if we are to ensure that the cost of justice remains proportionate to relief being sought. In troubled economic times, it is also important that commercial disputes be resolved as expeditiously and economically as possible.

An important measure introduced by this bill is a power to refer all or part of a proceeding in the Federal Court to a referee for report. Such a power is regularly used by courts in other jurisdictions to assist them determine issues before them. It will allow the Federal Court to appoint an appropriately qualified person to inquire into any aspect of a proceeding and provide a report to the court.

This is an important reform and will enable the Court to more effectively and efficiently manage large litigation.

It will be useful in many cases, particularly those that involve complex technical issues or where detailed examination of financial records is necessary to assess damages. It will also be of assistance in native title matters where a judge would be assisted by an inquiry into a particular aspect of a claim.

The procedural flexibility with which a referee can deal with a question - along with their technical expertise - will allow a referee to quickly get to the core of technical issues and reduce the cost and length of trials for litigants.

The bill also amends the Federal Court Act to allow a single judge of the Court to make interlocutory orders in proceedings that would otherwise be required to be heard by the Full Court. This will allow the Court to more efficiently manage cases and avoid unnecessary delay for litigants.

In addition, the bill amends the International Arbitration Act 1974 to give the Federal Court concurrent jurisdiction with State and Territory Supreme Courts for matters arising under Parts III and IV of the Act. These Parts adopt the UNCITRAL Model Law on International Commercial Arbitration 1985 and implement the Convention on the Settlement of Investment Disputes Between States and Nationals of other States 1965.

The amendments also clarify the Federal Court’s existing jurisdiction for matters arising under Part II of the Act which gives effect to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.

These amendments will assist in ensuring that the Federal Court is well equipped to operate as a regional hub for commercial litigation.

The bill promotes the efficient administration and management of federal courts and tribunals by repealing existing legislative provisions that restrict the heads of the Federal Court, Family Court, Administrative Appeals Tribunal and Native Title Tribunal from acquiring interests in land for the purposes of the Lands Acquisition Act 1989.

These restrictions have impeded the efficient administration of these bodies by preventing them from negotiating and executing leases on their own behalf.

The existing restrictions were introduced in 1989 at a time when purchasing and building arrangements for federal courts and tribunals were the responsibility of the then Department of the Arts and Administrative Services. That Department no longer exists. The courts are now self-administering, and it is consistent with this status that they be able to negotiate and execute their own leases. My approval is required for major purchases over $1 million.

The bill also amends Part IIA of the Public Order (Protection of Persons and Property) Act 1971 which empowers authorised officers to exercise certain powers in relation to court premises if they believe this is necessary in the interests of court security.

These powers include the power to remove a person from court premises or to require information from or to search a person.

These amendments make it clear that authorised officers have these same powers where the Federal Court is sitting on open land, as occurs in some native title cases, or in a building other than its usual premises.

The amendment gives court officers the power to make an order designating a particular area as ‘court premises’. The bill ensures that appropriate notification is given to the public when such an order is made. These amendments will ensure it is clear to both court officers and the public the areas in which officers can exercise powers in the interests of court security.

Importantly, the bill responds to the decision of the Full Court of the Family Court of Australia in Black v Black.

In that case, the Court found that a binding financial agreement (commonly known as a pre-nuptial agreement) made under the Family Law Act 1975 was invalid because it did not strictly comply with certain technical requirements in the Family Law Act.

The amendments are being made because the Government is concerned about the possible consequences of the decision on the validity of existing binding financial agreements which contain technical errors.

The bill amends the Family Law Act to ensure that people who have made an informed decision to enter into one of these agreements cannot later get out of it on a technicality, resulting in court battles that the agreement was designed to prevent. These amendments will restore confidence and certainty in the binding nature and enforceability of financial and termination agreements under the Family Law Act.

I commend this bill.


The main purpose of the Foreign Evidence Amendment Bill is to streamline the process for adducing business records obtained from a foreign country as evidence in Australian court proceedings.

Part 3 of the Foreign Evidence Act 1994 provides a means of adducing foreign material, obtained in response to a mutual assistance request to a foreign country, as evidence in Australian criminal and related civil proceedings. The provisions are designed to facilitate the use of evidence obtained from foreign countries. However, the current provisions are not always adequate to meet the special evidentiary problems associated with obtaining and using evidence from foreign countries with differing systems of criminal investigation and procedural law.

Mutual assistance requests seeking business records from a foreign country are increasingly becoming one of the most common types of requests made by Australia. Globalisation and advances in information technology means that this form of evidence is particularly important to Australia’s efforts to fight white collar crimes such as fraud and money laundering.

Currently, the Foreign Evidence Act requires that business records must comply with the rules of evidence that apply in the jurisdiction in which the proceedings are being heard. However, the admissibility of business records is governed in Australia by technical evidentiary rules which vary between States and Territories. Australian authorities have indicated they experience considerable difficulties in obtaining business records from foreign countries in a form that complies with these admissibility requirements. As a result, reliable evidence obtained through mutual assistance may not be able to be admitted into evidence in court in Australia.

The bill would amend the Foreign Evidence Act to provide that business records obtained through mutual assistance will be presumed to be admissible unless the court is satisfied the records are not reliable and probative, or are privileged. It is appropriate that the process for adducing business records be streamlined as this type of evidence is generally considered accurate and reliable. The court would retain a broad discretion to prevent foreign material being adduced if it is in the interests of justice to do so.

The bill would also provide greater flexibility to the requirements for the form of testimony obtained from foreign countries. Currently, testimony must be taken on oath or affirmation or under caution or admonition. Not all foreign countries, particularly those with a civil law system, provide for the taking of evidence on oath or affirmation, or under caution or admonition. The bill would extend the testimony provisions to provide for evidence to be taken in circumstances where the person is under a legal obligation to tell the truth.

Other amendments would update and improve the operation of the Foreign Evidence Act. For example, the bill would provide the Court with an additional discretion to limit the use to be made of foreign material, where there is a danger that it could be unfairly prejudicial to a party to the proceedings. The bill would also clarify the application of Part 3 of the Act to non-conviction based proceeds of crime proceedings.

Part 3 of the Foreign Evidence Act currently applies to criminal and related civil proceedings in States and Territories, as well as Commonwealth proceedings. This bill will initially apply to Commonwealth proceedings, with provision to apply the amendments to States and Territories through regulations. I will be liaising with the States and Territories to determine if and when such regulations should be made.

It is necessary that amendments to facilitate the admission of business records be progressed promptly. However, I also recognise that the Foreign Evidence Act may need to be amended to ensure processes for adducing other types of foreign material are also appropriate. Further proposals for amending the Foreign Evidence Act are under consideration in the context of a review of extradition and mutual assistance laws being conducted by my Department.

The Foreign Evidence Amendment Bill will ensure that reliable foreign evidence obtained through formal Government to Government processes is able to be used in Australian criminal and related civil proceedings, while retaining appropriate safeguards.

I commend the bill.


The main purpose of this bill is to amend the Telecommunications (Interception and Access) Act 1979 (the TIA Act) to facilitate the introduction of Queensland law enforcement agencies into the telecommunications interception regime.

The inclusion of Queensland agencies will mean that the interception regime established by the TIA Act will become truly national. Queensland is currently the only jurisdiction whose law enforcement agencies do not have interception powers.

The bill also implements several minor technical amendments.

[Interception Powers for Queensland]

Currently Queensland law enforcement agencies cannot seek or execute an interception warrant. This is because Queensland has not, to date, enacted legislation that satisfies the TIA Act’s recordkeeping, reporting and inspection obligations.

These obligations are a key component of the interception regime as they establish the minimum standards interception agencies must comply with to ensure accountability under the TIA Act.

Without such provisions there is limited recourse to check whether an agency is meeting its accountability obligations under the TIA Act; an unacceptable outcome given the invasive nature of telecommunications interception.

The importance of these requirements is reflected in section 35 of the TIA Act. This provides that a State law enforcement agency cannot be declared by the Commonwealth Minister to be an interception agency where State law does not reflect the accountability framework established in the TIA Act.

The Queensland Government has announced its intention to introduce legislation that will comply with this requirement.

That State legislation will also include an oversight role for the Queensland Public Interest Monitor (the PIM) in the pre-application and application processes for an interception warrant sought by a Queensland agency.

Amendments are included in this bill which recognise the request by the Queensland Government for the inclusion of the PIM’s role.

Without specific reference to the PIM in the TIA Act, there would be a real risk that the Queensland legislation would be inoperative under section 109 of the Constitution on the basis of inconsistency with the TIA Act.

While the TIA Act establishes a national regime, a role for the PIM can be accommodated within the TIA Act that recognises the important place the PIM has in law enforcement matters in Queensland.

The PIM is unique to Queensland and was introduced in 1997 as part of a package of measures aimed at reforming police powers and creating relevant safeguards following the State’s long history, starting with the Fitzgerald Report in the 1980s, of review into police activities.

This is not the first time the Commonwealth Government has recognised the role of PIM: the PIM has an oversight role in relation to applications for control orders under the Criminal Code, and for applications for surveillance device warrants.

This bill will amend the TIA Act to allow the PIM to make submissions to the eligible Judge or AAT member considering an application by a Queensland agency for an interception warrant and to question the agency applying for the warrant.

The PIM will also be able to question any third party called on by the decision maker to provide additional information about the application.

The proposed role for the PIM in the interception regime only applies to interception applications made by Queensland State interception agencies. The PIM will not have a role in relation to applications made by other interception agencies.

The TIA Act will also be amended to require a decision maker to consider any view put forward by the PIM in deciding whether or not to issue an interception warrant. The PIM will not be compelled to make a submission on an application nor will the PIM’s view determine the outcome.

The TIA Act already requires decision makers to consider a number of matters before issuing an interception warrant, including the public interest in protecting people’s privacy from excessive or unnecessary intrusion.

A submission by the PIM will be an additional consideration a decision maker must take into account in forming their view and can be outweighed by the decision maker’s consideration of the factors currently listed under the TIA Act.

Finally, it is important to note that this bill does not of itself give Queensland law enforcement agencies access to interception powers.

In addition to enacting accountability provisions, the requesting State must enter into an agreement to pay all expenses connected with the issue of a warrant before I can declare, under section 34 of the TIA Act, a State agency to be an interception agency for the purposes of the TIA Act.

However, given the section 109 issue in relation to the PIM, Queensland cannot enact legislation implementing comparable accountability requirements until the TIA Act is amended to recognise a role for the PIM.

[Other Amendments]

The bill will make other minor and technical amendments that will ensure the ongoing relevance and effectiveness of the telecommunications and surveillance regimes.

The bill will amend the TIA Act to correct an error introduced by the Telecommunications Interception Legislation Amendment Act 2008 (the Amendment Act).

The effect of subsection 5AC(4) of the TIA Act, as inserted by the Amendment Act, is that the Commissioner of a State police force can only authorise a senior executive Australian Federal Police employee who is a member of the AFP to be a ‘certifying officer’.

This bill clarifies that the intention of the provision is that a Commissioner can delegate the power to act as a ‘certifying officer’ to a State police force officer whose rank is equivalent to that of a senior executive AFP employee who is a member of the AFP.

This amendment will remove any doubt about the validity of actions taken by persons purportedly authorised to act under the current provision.

The bill also amends the definition of ‘certifying officer’ in the TIA Act and the definition of ‘appropriate authorising officer’ in the Surveillance Devices Act to reflect recent changes to the structure of the Queensland Crime and Misconduct Commission.

This bill is an important milestone in the history of telecommunication interception in this country.

By laying the foundation for Queensland’s entry into the interception regime established by the TIA Act, this bill marks a significant step forward in the creation of a national approach that extends beyond State boundaries to equip all law enforcement agencies with the appropriate tools necessary to protect the safety and security of all Australians.

I commend the bill.

Debate (on motion by Senator Wong) adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.