As there is no central theme to the Bill, the
background to each substantial amendment will be explained where
relevant in the Main Provisions section below.
Schedule 1
Item 1 Amendment of the Aboriginal
and Torres
Straight Islander Commission Act 1989
Schedule 4 of the Aboriginal and
Torres Straight Islander Commission Act
1989 has the effect of making the Federal Court of
Australia the court of disputed returns for the purposes of
elections conducted under the Act. Currently subclause 28(1) of
schedule 4 allows for judges of the court to make rules for
regulating the practice and procedure of the court, the forms to be
used and the fees to be paid by the parties.
The proposed amendment removes the power of
the judges to regulate the fees and in effect gives that power to
the executive (in the form of the Governor-General). This is the
model by which fees for proceedings in the Federal Court are
generally determined (section 60 of the Federal Court of
Australia Act 1976 is the general source of the
Governor-General s power in this regard).
The explanatory memorandum to the original
Bill (Aboriginal and Torres Straight Islander Commission Bill 1989)
discloses no particular policy consideration which would make it
necessary or desirable that the regulation of fees for these
matters be the responsibility of the judiciary rather than the
executive.
Items 11 and 12 Amendments to the
Bankruptcy Act 1966
These amendments are expressed, in the
explanatory memorandum, to address the report of the Senate Foreign
Affairs, Defence and Trade References Committee entitled
Helping Australians abroad A review of the Australian
Government s consular services. The committee did indeed
recommend that the Department of Foreign Affairs and Trade examine
options to enable locally engaged staff in Australian posts to
undertake notarial acts. (3)
The explanatory memorandum fails to mention,
however, that the committee also noted some obstacles to that end.
The committee noted, for instance, that locally engaged staff (LES)
are not always Australian nationals and that the Vienna Convention
on Consular Relations (the Vienna Convention ),(4)
required that the permission of receiving countries would be needed
prior to the appointment of non-Australian nationals to undertake
notarial acts.(5)
The government tabled its response to the
Committee s report on 26 November 1997. In relation to the
Committee s recommendation noted above the government s response
included these comments:
Currently, domestic and international law
precludes LES from performing notarial acts. As a first step
towards implementing this recommendation, the Consular Fees Act
1955 has been amended to provide for the appointment of LES for the
purposes of charging prescribed fees. Appointments will be made
under authority of the Secretary of the Department of Foreign
Affairs and Trade. Further, in most cases, the Department will only
appoint LES for these purposes who are Australian nationals to
avoid potential complications under the Vienna Convention on
Consular Relations.
Further steps to implement the recommendation will
require consultation with State and Territory Governments to
examine options to appoint LES to perform notarial acts under
relevant State and Territory legislation.(6)
The explanatory memorandum is silent as to
whether the foreshadowed consultations with State and Territory
governments have occurred, and as to the outcome thereof. As to the
complications under the Vienna Convention, the amendments do not,
on their face, address those.
Item 17 Amendments to the Evidence
Act 1995
These amendments allow for locally engaged
staff at Australian diplomatic and consular missions to give
evidence, by written statement or affidavit, in relation to such
matters as the proof of the content of documents and business
records. Like items 11 & 12 above, they are also directed at
implementing the recommendations of the Senate Foreign Affairs,
Defence and Trade References Committee entitled Helping
Australians abroad A review of the Australian Government s consular
services, insofar as they seek to reduce the administrative
burden on diplomatic and consular staff. Because the giving of
evidence in this regard probably comes within the definition of
consular functions under the Vienna Convention,(7)
however, the same issue regarding the potential inconsistency with
that Convention applies.
Items 18-20 Amendments to the
Federal Court of
Australia Act
1976
The explanatory memorandum claims that these
items ensure that a single judge is able to deal with ancillary and
interlocutory matters without the need to constitute a Full Court.
It is further stated, in the memorandum, that all powers extended
to single judges are existing powers exercised by the Full Court.
In truth, however, the amendments simply add a circumstance failure
of an applicant or appellant to attend a hearing in which a single
judge or a Full Court, may make an order dismissing a matter, and
add a provision allowing a single judge or the Full Court to set
aside orders dismissing an application or an appeal. Both single
judges and the Full Court already have power to dismiss
applications for failure to comply with a direction of the
court.(8)
The amendments are expressed to be entirely
prospective, in that they apply only to proceedings or appeals
commenced after the commencement of the amendments.
Item 44 Amendments to the Law
Officers Act 1964
The purpose behind this amendment is to ensure
that the Commonwealth Solicitor-General has rights of appearance in
State courts even where those courts are exercising State, and not
Federal, jurisdiction. The explanatory memorandum cites the High
Court s decision in Re Wakim; ex parte McNally (1999) 198
CLR 511, as giving rise to the possibility that an instance could
occur where the Commonwealth wished to instruct the
Solicitor-General to appear on its behalf in a State court where
that court was exercising state jurisdiction.
The amendment is framed quite broadly, giving
the Solicitor-General not only rights of appearance, but all rights
and entitlements of a practitioner in state courts (as well as
federal and territory courts). The breadth of the provision raises
a question as to source of the Commonwealth s power to confer upon
one of its officers, rights and entitlements in state courts
exercising state jurisdiction. Generally speaking, legislation
conferring such rights might be thought to be a matter for state
legislatures. The power of the Commonwealth to legislate in respect
of courts is confined to the matters contained in Chapter III of
the Constitution. Chapter III does not extend to the exercise of
state jurisdiction.(9) The provision is confined,
however, to the Commonwealth Solicitor-General acting in his or
her official capacity. That probably has the effect of
limiting the operation of the provision to instances where the
Commonwealth has a legitimate interest in a matter and consequently
in having the Solicitor-General appear on its behalf. As such it
may be that the provision falls within the general executive power
of the Commonwealth sourced in section 61 of the Constitution, and
extended to incidental matters by section 51(xxxix).
Item 54 Amendment of the Public
Order (Protection of Persons and Property) Act
1971
Part IIA of the Public Order (Protection
of Persons and Property) Act 1971 contains various provisions
relating to the security of court premises. The current definition
of court premises refers to premises occupied in connection with
the operations of the court. The amendment, in effect, simply
expands the definition by adding or used (whether permanently or
temporarily or under lease or otherwise) in connection with the
sittings, or any other operations, of the court.
Item 57 Amendment of the Workplace
Relations Act 1996
Section 415 of the Workplace Relations Act
requires that the jurisdiction of the Federal Court be exercised by
a Full Court where writs of mandamus or prohibition are sought
against Presidential members of the Australian Industrial Relations
Tribunal. The amendment adds to section 415 the proviso that
jurisdiction need not be exercised by a Full Court in such cases
where all that is sought is a consent order, an order dismissing
for want of prosecution, directions for the conduct of the
proceeding, or similar matters outlined in the proposed new
subsection.
In the main this Bill appears to be consistent
with its purpose. In relation to items 11, 12 and 17, a question
arises as to whether the problems identified in the government s
response to the report of the Senate Foreign Affairs, Defence and
Trade References Committee entitled Helping Australians abroad
A review of the Australian Government s consular services,
have been adequately dealt with. Item 44 is potentially
controversial in that it raises an issue of Commonwealth / State
legislative power, but, because it is confined in scope to the
Commonwealth Solicitor-General acting in his or her capacity as
such, it is probably within or incidental to the executive power of
the Commonwealth provided for in section 61 of the
Constitution.
-
Senate Standing Committee for the Scrutiny of Bills Alert
Digest, No. 5 of 2004, Senate Standing Committee for the
Scrutiny of Bills, Canberra, 31 March 2004, at p. 14.
-
Senate Foreign Affairs, Defence and Trade References Committee,
Helping Australians abroad A review of the Australian
Government s consular services, Senate Foreign Affairs,
Defence and Trade References Committee, Canberra, June 1997,
p.30.
-
ibid.
-
Signed and ratified by Australia in 1964 and 1973
respectively.
-
Article 1 of the Vienna Convention defines consular officer to
mean any person entrusted in that capacity with the exercise of
consular functions. Consular functions include, by article 5(f),
acting as notary and civil registrar and in capacities of a similar
kind Article 22 provides that consular officers should, in
principle, be nationals of the sending state [in this context
Australia] and also that consular officers may not be appointed
from among persons having the nationality of the receiving state
except with the express consent of that state.
-
Senator Minchin, Committees: Foreign Affairs, Defence and Trade
References Committee: Report: Government Response ,
Debates, 26 November 1997, p. 9521.
-
Article 5(j) transmitting judicial and extra-judicial documents
or executing letters rogatory or commissions to take evidence for
the courts of the sending State
-
Section 20(5)(d).
-
Re Wakim at p. 562.
This paper has been prepared for general distribution to
Senators and Members of the Australian Parliament. While great care
is taken to ensure that the paper is accurate and balanced, the
paper is written using information publicly available at the time
of production. The views expressed are those of the author and
should not be attributed to the Information and Research Services
(IRS). Advice on legislation or legal policy issues contained in
this paper is provided for use in parliamentary debate and for
related parliamentary purposes. This paper is not professional
legal opinion. Readers are reminded that the paper is not an
official parliamentary or Australian government document.
Published by the Parliamentary Library, 2004.