WARNING:
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.
CONTENTS
Law and Justice Legislation Amendment Bill
1996
Date Introduced: 12 December 1996
House: House of Representatives
Portfolio: Attorney-General
Commencement: Upon Royal Assent except as
follows:
Items 1 and 3-6 of Schedule 1, items 4,5 and 9-16 of Schedule 14
and items 1-6 and 8-11 of Schedule 16 which commence on a day (or
on days) to be fixed by Proclamation or on the day after 6 months
following Royal Assent, whichever is sooner.
This is an omnibus Bill that will amend a number of Acts falling
within portfolio of the Attorney-General and Minister for
Justice.The major amendments :
- establish a Small Taxation Claims Tribunal;
- expand the jurisdiction of the Federal Court; and
- allow specified child support measures to be dealt with as part
of the consensual 'parenting plans' available via the Family
Court.
As there is no central theme to the Bill, the background to each
major amendment will be explained in the relevant part of the Main
Provisions section below.
Schedule 1 - Amendment of the Administrative Appeals
Tribunal Act 1975
In November 1993, the Joint Committee of Public Accounts (JCPA)
in its Report No. 326 An Assessment of Tax,recommended
that:
the current taxation law of Australia be amended to allow the
establishment of a Small Taxation Claims Tribunal within the
registry of the Administrative Appeals Tribunal.(1)
It further recommended that taxpayers be permitted:
to lodge objections against, or seek review of, decisions of the
Australian Taxation Office before a Small Taxation Claims
Tribunal.(2)
Other recommendations included:
- the imposition of a $50 non-refundable fee payable by taxpayers
electing to use the Small Taxation Claims Tribunal;
- having a jurisdictional limit of $5,000 for matters determined
by the Small Taxation Claims Tribunal; and
- permitting the Australian Taxation Office (ATO) to refer
matters from the Small Taxation Claims Tribunal to the Federal
Court provided that it meets all the taxpayer's costs (including
legal costs) in doing so.(3)
The Law and Justice Legislation Amendment Bill (No. 2)
1995 sought to implement the above recommendations, however,
the Bill lapsed when Parliament was prorogued in December 1996.
Items 1-3 establish a new tribunal, called the
Small Taxation Claims Tribunal, to hear certain types of taxation
disputes.Disputes for amounts under $5,000 may be heard by the
Tribunal,but proposed section 24AD provides that if the parties
cannot agree on the amount of the dispute and the Tribunal
considers that the amount is above the $5,000 limit, it may decline
jurisdiction until the (normal) higher application fee is paid.
Item 4 requires the Registrar (or a District
Registrar or Deputy Registrar as the case may be) to issue the
applicant taxpayer a statement setting out the mediation processes
available.Proposed subsection 34A(1A)(b) allows the Tribunal to
recommend (and if the parties consent, to direct) that the
proceedings be dealt with by mediation if the Tribunal considers
that this will assist in resolving the dispute.
Item 6 inserts a new provision that requires
the Small Taxation Claims Tribunal, when deciding whether to refer
a matter to the Federal Court,to take into account the interests of
the taxpayer that is seeking a review of a decision of the ATO.
Schedule 2 - Amendment of the Classification (Publications,
Films and Computer Games) Act 1995
Item 1 expands the definition of 'contentious
material' in the Classification (Publications, Films and
Computer Games) Act 1995 (the 'C(PFCG) Act') to include
material in a film or computer game that a 'reasonable adult' would
consider unsuitable for viewing by a person under 15.The term
'reasonable adult' is not defined in the C(PFCG) Act.
Items 2 and 5 together provide that if a film
or computer game contains contentious material that was not brought
to the attention of the Classification Board when it was making its
decision about the appropriate classification and if it had been
brought to their attention, a different classification would have
been given, then the original classification is taken never to have
been made.
Item 3 includes a new requirement for
applicants seeking to have a film or computer game classified, to
disclose particulars of all contentious material in the product and
the means by which it may be accessed.This is intended to cover the
situation, for example, in a computer game where there may be
several options depending upon the player's choices.Without such a
disclosure provision, the Classification Board might not be aware
of all the options and therefore might even know of the existence
of particular contentious material.
Item 6 adds to the list of advertisements that
will be unsuitable in paragraph 29(4)(b), those that depict a child
(or a person who looks as though they are a child) under 16 in such
a way as to cause offence to a reasonable adult.
Item 7 proposes an amendment to existing
section 94 of the C(PFCG) Act, which defines 'censor'.The amendment
will expand the category of people defined as a 'censor' for the
purposes of the Act to include those persons so classified under
the respective legislation of New South Wales, the Australian
Capital Territory and the Northern Territory.
Schedule 3 - Amendment of the Complaints (Australian Federal
Police) Act 1981
Items 2 and 3amend subsection 59(1) of the
Complaints (Australian Federal Police) Act 1981 to allow a
member of the Disciplinary Tribunal (other than someone who holds a
judicial office or a Magistrate's office) to be paid in accordance
with the Remuneration Tribunal's determination.In the absence of
such a determination then the amount payable to the member may be
prescribed.All existing determinations or regulations prescribing
remuneration remain in force and are not affected by this proposed
change.
Schedule 4 - Amendment of the Crimes Act 1914
Item 1 simply corrects a reference in
subsection 3B(2) of the Crimes Act 1914 that currently
refers to a 'non-existent' section 18A.
Schedule 5 - Amendment of the Death Penalty Abolition Act
1973
The existing provisions of the Death Penalty
Abolition Act 1973 purport to apply in the
Territories of Papua and New Guinea.These provisions (ie
subsections 3(3) and the reference in subsection 3(2)) have
conflicted with the Papua New Guinea Independence Act 1975
since its enactment.Items 1 and 2 repeal the
subsections and correct this anomaly.
Schedule 6 - Amendment of the EvidenceAct 1995
Items 1-3 make minor non-technical amendments
to the Evidence Act 1995.
Subsection 68(4) deals with the issue of costs and in NSW the
law requires legal practitioners to enter into a costs agreement
with their clients, in advance of undertaking any work for a
client.Item 4 amends the note at the bottom of
subsection 68(4) to indicate that NSW law differs from the
Commonwealth law in this respect.
Item 9 repeals section 107, (a modified version
of which is inserted by Item 11) which deals with an exception to
the rule against hearsay.
Generally any evidence of a prior 'consistent' statement made by
a witness is inadmissible because it adds nothing and because it
often offends the rule against hearsay.There are, however, some
exceptions to this general rule.Similarly, generally evidence of a
witness's 'good character' (other than an accused's good character)
is inadmissible unless that character has been attacked, in which
case it is possible to adduce evidence of good character to rebut
the attack.
Item 11 substitutes new section 108A.This
provides that a person whose prior statement has been admitted
under one of the exceptions to the rule against hearsay but who is
not called as a witness, can only be 'attacked' by evidence led as
to that person's credibility if the evidence has 'substantial
probative value'.
Existing section 128 deals with the circumstances during which a
witness can claim privilege against self-incrimination in other
proceedings.The provision allows a witness to object to giving
certain evidence (on the grounds that they may incriminate
themselves). However, even if the witness objects, the court may
require them to give the evidence:
- if the evidence is likely to prove that the witness committed
an offence against an Australian law (or that the witness might be
liable for a civil penalty); AND
- if the interests of justice require.
If this situation occurs then the court must give the witness a
certificate that provides immunity against prosecution for the
criminal offence or liability for the civil penalty.
Item 14 extends the coverage of certificates
issued in the above manner by prescribed provisions in State and
Territory laws.New subsections 128(10)-(13) will make the
certificates effective as if they had been issued under section
128.That is, they will provide immunity against prosecution in:
- proceedings in an ACT court;
- proceedings in a federal court;
- for Commonwealth and ACT offences; and
- for the recovery of civil penalties under a Commonwealth or ACT
law.
Items 15-19 clarify the differences between the
Commonwealth and the NSW law on evidence.
Items 20-24 make minor amendments, including
the insertion of a definition of the 'credibility of a person who
has made a representation' under new section 108A.
Schedule 7 - Amendment of the Family Law Act 1975
Existing paragraph 39 of the Family Law Act 1975 vests
State and Territory Supreme Courts with jurisdiction to determine
certain specified matters under the Act.Items 1 and
2 extend the jurisdiction of those courts (Item 1) and to
courts of summary jurisdiction (Item 2) to include the jurisdiction
to determine matters arising under the regulations on the
Convention on Protection of Children and Cooperation in Respect
of Intercountry Adoption.(4)
The Family Law Act 1975 provides that a written
agreement may be reached by the parents of a child or children
concerning their ongoing welfare.The 'parenting plan' can cover
issues such as the residence, contact, and maintenance of the child
or children and other areas of parental responsibility.Once
finalised, a parenting plan may be registered (existing section
63E) in the Family Court provided that the court 'considers it
appropriate to do so having regard to the best interests of the
child to which the plan relates'.The current provisions require
agreements regarding child maintenance to be done separately under
the Child Support (Assessment) Act 1989.
Item 5 proposes a section 63CAA (although there
is currently no section 63CA) which the Explanatory Memorandum (at
p14) states is 'inserted to make it clear on the face of the
legislation that one agreement may constitute both a parenting plan
under the Act, and a child support agreement under the Child
Support (Assessment) Act 1989.
Item 8 is a consequential amendment to section
69N(1)(a) arising because of the changes proposed in Item 5.
Currently, when the parties are each seeking different orders, a
court of summary jurisdiction does not have automatic jurisdiction
and must obtain the consent of the parties prior to determining the
case or refer the case to a higher court (eg the Family
Court).Given that Item 5 will enable child maintenance issues to be
included in the parenting plan, the amendment proposed in Item 8
(to exempt disputed child maintenance issues from the need to
either obtain consent or refer the matter to a higher court) is
required as these issues still fall with the jurisdiction of a
court of summary jurisdiction.
Items 11, 12 and 13 extend the list of topics
that the judges of the Family Court may make rules (that are not
inconsistent with the Family Law Act 1975) to include
matter relating to trial management and conciliation
conferences.
Schedule 8 - Amendment of the Federal Court of Australia
Act 1976
Existing section 18N(1) sets out who will be the officers of the
court.For example, each Federal Court will have a District
Registrar and a Sheriff but the number of Deputy Registrars and
Deputy Sheriffs will vary according to the needs of the particular
court.Item 1 will allow the Federal Court to
appoint Marshals as officers of the court.Marshals have certain
powers to arrest and detain ships (to recover specified expenses,
including the Marshal's legal costs in taking such action) under
the Admiralty Act 1988.
Existing section 24(1)(b) vests the jurisdiction in the Federal
Court to hear appeals from judgments of the Supreme Court of a
Territory.Existing section 252 of the ACT Electoral Act
1992 vests the ACT Supreme Court with the jurisdiction to hear
disputes about the validity of ACT elections.Whilst determining
such disputes the ACT Supreme Court is known as the Court of
Disputed Returns.Item 2 will prevent appeals from
the ACT Supreme Court sitting as the Court of Disputed Returns from
being heard by the Federal Court.
The Federal Court held, in R v L (1994) 122
ALR 464, that the references in section 30A of the
Federal Court of Australia Act 1976 to
'Attorney-General' and 'Director of Public Prosecutions' were
references to the Commonwealth Attorney-General and Director of
Public Prosecutions respectively. The result of this construction
was that the ACT Attorney-General and the ACT Director of Public
Prosecutions were not authorised to appeal on questions of law to
the full Federal Courtdecisions of the ACT Supreme Court.The effect
of Items 3 and 4 will be to allow 'an appropriate
authority' (ie like the ACT Attorney-General and the ACT Director
of Public Prosecutions) to submit cases to the Federal Court.
Item 6 inserts a definition of an 'appropriate
authority'.
Existing paragraph 30A(6)(a) makes it a contempt of court to
publish a report of a submission made to the Full Court (after a
person has been tried on indictment and acquitted either in whole
or in part).This might have the effect of making some law reports
in contempt of court and so Item 5 repeals the
section and replaces it with one that makes it clear that reports
of proceedings, provided that they don't identify the parties, are
lawful.
Items 7 to 11 inclusive amend parts of section
32W which deal with the enforcement of New Zealand judgments by the
Federal Court.The proposed amendments set out how the conversion
from New Zealand currency to Australian currency is to be
calculated and will allow the cost of obtaining evidence from a
foreign exchange dealer to be included in the amount
recoverable.
Schedule 9 - Amendment of the Foreign Judgments Act
1991
The proposed amendments to the Foreign Judgments Act
1991 are consistent with the amendments proposed above (Items
7 to 11 of Schedule 8) with respect to New Zealand judgments.That
is, they propose a systematic method for calculating the conversion
from foreign currency to Australian currency and allow the cost of
obtaining evidence from a foreign exchange dealer, about the
conversion rate, to be included in the amount recoverable.
Schedule 10 - Amendment of the Judge's Pensions Act
1968
The Constitution provides in Section 72 that the Justices of the
High Court and of the other courts created by the Parliament:
...
(ii) Shall not be removed except by the Governor-General in
Council, on an address from both Houses of the Parliament in the
same session, praying for such removal on the ground of proved
misbehaviour or incapacity:
iii) Shall receive such remuneration as the Parliament may fix;
but the remuneration shall not be diminished during their
continuance in office.
The proposed amendment to the Judge's Pensions Act 1968
will alter subsection 5(1) so that as long as a Judge holds any
office as a Judge or holds any remunerated (full-time) judicial
office in relation to a Territory they continue to be regarded as a
Judge that has not yet retired for the purposes of the Act.If this
proposed amendment effectively reduces the remuneration
entitlements of any Judge then it would be unconstitutional.
Schedule 11 - Amendment of the Judiciary Act 1903
The Constitution confers substantial original jurisdiction in
federal matters upon the High Court and also makes the High Court
the ultimate court of appeal within Australia.
Item 1 amends subsection 39B(1) of the
Judiciary Act 1903 so as vest original jurisdiction in the
Federal Court to hear certain matters. These include:
- matters where the Commonwealth is seeking an injunction or
declaration;
- matters arising under or involving the interpretation of the
Constitution; and
- matters arising under any laws made by the Parliament.
At the moment the High Court has jurisdiction (by virtue of
sections 75 and 76 of the Constitution and section 30 of the
Judiciary Act 1903 ) to hear these matters.
Item 2 inserts new section 55H which will allow
the State or ACT or NT Government Department's costs for legal
services (and disbursements) provided to a person or body to be
recovered by that person or body (in the event that they are
awarded costs) as if they were legal costs.
Schedule 12 - Amendment of the Jurisdiction of Courts
(Cross-vesting) Act 1987
Items 1-4 amend various provisions so as to
include both the Australian Capital Territory and the Northern
Territory in the definition of 'State' and 'Territory' for the
purposes of the act.
Schedule 13 - Amendment of the Privacy Act 1988
Item 1 inserts a definition of 'guarantee' into
subsection 6(1).
Item 2 amends subsection 11B(1) so that an
agency that is carrying on a business of making loans (and who is
determined, and thus gazetted under Item 4, by the
Privacy Commissioner to be a credit provider for the purposes of
the Privacy Act 1988) is caught by the provisions of the
Privacy Act 1988.Item 3 then provides
that such an agency is caught by the provisions of Part IIIA of the
Act (which deal specifically with credit providers) and not the
broader Information Privacy Principles found in section 14.
Existing section 18E deals with the sort of information that is
not permitted to be held in a person's credit information file by
the credit provider.Item 5 will insert a provision
which allows information relating to an overdue payment by a
defaulter which the person (whilst acting as a guarantor) becomes
liable for but has not paid,to remain on their file provided that
certain conditions are met.These are that:
- the credit provider is not prevented under any law of the
Commonwealth, a State or a Territory from suing the defaulter (ie
other than the guarantor) to recover the overdue payment;
- the credit provider has given notice to the person that the
payment is overdue and 60 days have passed since the notice was
given; and
- the credit provider has taken all steps to recover the overdue
payment from the original defaulter;
Item 8 sets a limit of five years as the
maximum amount of time that records of the above matter (in item 5)
may be held.If the credit reporting agency was notified of the
overdue payment before 25 February 1992 then the five year period
commences on that date, otherwise the period commences when the
credit reporting agency is notified.
Existing section 44 deals with the powers of the Privacy
Commissioner to obtain information and documents relating to an
investigation.Item 10 will insert a provision that
allows the Privacy Commissioner to make copies of documents and
retain possession of the original documents for as long as
necessary.Persons who would ordinarily be entitled to inspect the
documents will be allowed to inspect them whilst they are in the
possession of the Privacy Commissioner.
Schedule 14 - Amendment of the Service and Execution of
Process Act 1992
Item 1 extends the existing definition of
magistrate to include persons appointed under the Victorian law as
bail justices.The Explanatory Memorandum at p24 states that this
will allow 'some persons arrested in Victoria under an interstate
warrant to be brought before a magistrate more quickly'.
Item 3 amends existing subsection 8(4) so that
the Service and Execution of Process Act 1992 will apply
to the exclusion of any relevant State law with respect to the
service or execution of process or of judgments (both of courts and
tribunals) in another State.
Item 4 amends paragraph 17(1)(a) so that a
person, after being served, has 21 days or more (if the law in the
State where the process was issued provides) to enter an
appearance. Similarly, Item 5 provides that a if a
State law varies the amount of time allowed to enter an appearance
according to a prescribed distance, then the time allowed under
this provision is to be the maximum period (ie as if the distance
were the longest).
Item 8 inserts a new divisionwhich applies when
a person arrestedunder a warrant is taken back to the State in
which the warrant was issued, via another State either out of
necessity or out of convenience.The combined effect of the
provisions to be inserted by item 8 is that the law of the issuing
State (for example with respect to escaping from lawful custody)
applies to the prisoner throughout the journey.
Item 9 inserts a definition of an enforcement
officer as including a police officer, Sheriff or Bailiff where
applicable.Items 10-16 will allow an enforcement
officer to issue and execute warrants of apprehension.
Schedule 15 - Amendment of the Superannuation Act
1976
Existing section 154(7) provides that when hearing an
application under the Superannuation Act 1976 the
Administrative Appeals Tribunal must have at least one member who
is an 'eligible employee' or a 'pensioner' for the purposes of the
Act.Item 1 expands the definition of 'eligible
employee' and of 'pensioner' so that it will be easier to find a
Tribunal that is qualified to determine the application.
Schedule 16 - Amendment of the Taxation Administration Act
1953
Items 1-6 make consequential amendments to the
Taxation Administration Act 1953arising from the creation
of a Small Taxation Claims Tribunal (described in Schedule 1
above).
Item 7 provides that hearings before the
Administrative Appeals Tribunal are to be held in private,
notwithstanding section 35 of the AAT Act, if the taxpayer requests
that they be private.This will differ from the situation in
relation to hearings before the Small Taxation Claims Tribunal
where the onus will be on the taxpayer to convince the Tribunal
that they should be private, if the taxpayer so desires.
- The Parliament of the Commonwealth of Australia Joint Committee
of Public Accounts Report No. 326 An Assessment of Tax: A report on
an Inquiry into the Australian Taxation Office (November 1993) AGPS
at p331.
- Ibid.
- Ibid.
- The Convention on Protection of Children and Cooperation in
Respect of Intercountry Adoption was done at The Hague in 1993.
Australia has yet to ratify the Convention.
Susan Downing
19 March 1997
Bills Digest Service
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ISSN 1323-9031
© Commonwealth of Australia 1996
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Published by the Department of the Parliamentary Library,
1997.
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