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Civil Law and Justice Legislation Amendment Bill 2018

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2016-2017

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

CIVIL LAW AND JUSTICE LEGISLATION AMENDMENT BILL 2017

 

 

ADDENDUM TO THE EXPLANATORY MEMORANDUM

 

 

(Circulated by authority of the

Attorney-General, Senator the Honourable George Brandis QC)

                                                                                                        

 



 

CIVIL LAW AND JUSTICE LEGISLATION AMENDMENT BILL 2017

NOTES ON CLAUSES

This addendum responds to concerns raised by the Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest No.5 dated 10 May 2017.

On page 45, after paragraph 195, insert:

Under the current section 122A of the Family Law Act, officers of the Australian Border Force are empowered to make an arrest when authorised by the Act. The amendment to expressly include of the Australian Border Force Commissioner and an APS employee in the Department administered by the Minister administering the Australian Border Force Act 2015 within the group of persons able to be authorised to make an arrest under the Act is a continuation of the existing conferral of powers. 

It is envisaged that, in practice, only Australian Border Force officers will be authorised by a court under this subsection. ABF officers are already conferred with a range of arrest powers under other Acts.

ABF officers receive training on the exercise of arrest powers conferred on them by legislation. The training includes face-to-face learning with legal officers on the parameters surrounding the use of the power; discussions with experienced ABF officers who have used these powers; and practical scenarios to assess an officer’s understanding of the use of the power in an operational ABF context.

The ABF College provides structured and specialised training and programmes for ABF officers that provides cross-functional access to powers by ABF officers. The College was established to provide a training programme that supports an agile, disciplined and innovative ABF workforce. It provides officers with learning and development opportunities to address skills gaps; enhance the standardisation of professional best practice; and develop the cross-skilling that is required for ABF officers to operate across multiple domains.

Specific training in relation to the arrest power and its limitations would be provided to ABF officers who are authorised to exercise it.

On page 61, after paragraph 304, insert:

Arbitral proceedings are distinct from enforcement proceedings. If the award debtor does not voluntarily meet its contractual obligation to comply with the terms of the award, the award creditor may need to commence enforcement proceedings.

The Bill would simplify the procedure for applying to a court for enforcement of an arbitral award. This provision refers to arbitral proceedings commenced prior to commencement of the Bill. It does not refer to enforcement proceedings commenced prior to the commencement of the Bill. The simplified procedure would be available in all enforcement proceedings commenced after commencement of the Bill, even where the related arbitral proceedings had commenced prior to the commencement of the Bill. Proceedings for the enforcement of an existing award sometimes occur shortly after the conclusion of the arbitration, but may also be delayed by many years. The simplified procedure would be available in enforcement proceedings which commence after the commencement of the Bill—but which may relate to arbitral proceedings commenced prior to the Bill’s commencement.

This effect is not a retrospective application of law. The substantive rights of the parties which are determined by the arbitral tribunal and expressed in the arbitral award would not be impacted by this Bill. The Bill would only alter procedural aspects of enforcement proceedings which commence after the Bill, which would only come into existence once the enforcement proceedings are commenced.

To be clear, enforcement proceedings which commence prior to the commencement of the Bill would be run according to the procedural requirements of the Act in its current form. The amended provisions would not apply to enforcement proceedings which commence prior to the Bill but continue after its commencement.