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
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details
Law and Justice Legislation Amendment
Bill 1998
Date Introduced: 3 December 1998
House: House of Representatives
Portfolio: Attorney-General
Commencement: Upon Royal Assent except in the following cases
where commencement is tied to the commencement of other Acts.
In Schedule 2, item 1 commences as of 9 October 1996 and item 2
as of 1 January 1998. Schedule 4 commences as of 16 December 1996,
Schedule 5 as of 1 July 1990, Schedule 6 as of 23 June 1993 and
Schedule 13 as of 17 April 1997. In Schedule 16, items 1 and 2
commence as of 25 May 1997.
This is an
omnibus piece of legislation which contains amendments to 16
different Acts, all of which fall within the responsibility of the
Attorney-General's Department, except one within the Treasurer's
responsibility and one within the responsibility of the Minister
for Employment, Workplace Relations and Small Business.
A large number of provisions in the Bill are
minor and technical amendments. The more substantive amendments are
directed to achieve the following purposes:
-
- to complete implementation of recommended changes to the
Administrative Review Council
-
- to permit the Australian Protective Service to charge for
services rendered to non-Commonwealth clients
-
- to extend the operation of certain rules in the Evidence
Act 1995 to all Australian courts, to facilitate the proof of
documentary evidence and to make other relatively minor amendments
to that Act
-
- to amend the Acts which govern the High Court and Federal Court
in each case to create or broaden a regulation-making power, and in
the latter case, to widen the range of court officials who can
administer oaths and affidavits and to increase the pool of judges
for full bench appeals from the Supreme Court of the Australian
Capital Territory
-
- to prevent a collateral criminal jurisdiction being attracted
to the Federal Court by virtue of a particular provision of the
Judiciary Act 1903
-
- to permit State and Territory judges exercising summary or
committal criminal jurisdiction to exercise a matching jurisdiction
in relation to Commonwealth offences, including in proceedings
pending at the time of commencement.
As there is no central theme to the Bill, the
background to each major amendment will be explained where relevant
in the Main Provisions section below.
Reference has not been made to provisions
dealing with drafting corrections or other minor matters.
Schedule 1 - Amendment of the Administrative Appeals
Tribunal Act 1975
At the suggestion of the Attorney-General, the
Senate asked the Senate Legal and Constitutional References
Committee to report on matters relating to the Administrative
Review Council (the Council) on 18 September 1996. The Council was
established in 1976 under Part V of the Administrative Appeals
Tribunal Act 1975 as an expert body to provide advice on
administrative law and decision-making. It had not been previously
reviewed in its 20 year existence. The Report on the Role and
Function of the Administrative Review Council was presented by
the Committee to the Senate in June 1997. It endorsed the continued
separate existence of the Council and made recommendations
regarding membership, functions, performance indicators and the
relationship between the Council, the Executive and Parliament.
The Government's response to the Committee's
Report was tabled in the Senate on 1 April 1998. That response
accepted 10 of the Committee's 11 recommendations and indicated
that implementation would involve a mix of legislative and
executive action. This Digest refers to Committee recommendations
where relevant to particular items in the Bill.
Item 1 in Schedule 1 permits
the Minister to expand the Council beyond a maximum of 13 members
by regulation.
Item 2 implements
Recommendation 3 of the Committee's Report. It widens the
qualifications for appointment to the Council to include those with
knowledge and experience of the needs of those affected by
decisions which come before the Administrative Appeals Tribunal for
review (ie a wide range of government decisions).
Items 4-6 implement
Recommendation 7, which called for a clearer statutory definition
of major Council functions with a particular focus on improving
primary decision-making.
Item 8 implements
Recommendations 9 and 10 by confirming explicitly the power of the
Minister to issue (binding) directions to the Council and to refer
matters for inquiry and report. Proposed section
51C provides that reports from the Council are to be
provided to the Minister, who must in turn table them in both
Houses within 15 sitting days.
Items 9 and 10 give effect to
Recommendation 6 by allowing the Governor-General to appoint
members for the duration of a specified project (but still subject
to a maximum initial term of 3 years and the possibility of
re-appointment). Although the Committee considered this amendment
would obviate the need for the President of the Australian Law
Reform Commission to serve as a permanent ex officio member, the
ALRC President remains a permanent Council member.
Schedule 3 - Amendment of the Australian Protective
Service Act 1987
The Australian Protective Service exists to
provide protective and custodial services (other than bodyguard
services) as directed by the Minister. Item 1 in
Schedule 3 will allow the Director of the Service to impose
reasonable charges for such services, where a request comes from
persons other than Commonwealth officials or organisations. A
constitutional issue relating to this amendment is discussed in the
Concluding Comments.
Schedule 4 - Amendment of the Bankruptcy Legislation
Amendment Act 1996
Item 1 in Schedule 4 appears
misdirected. It is described in the Explanatory Memorandum as the
correction of a minor drafting error but it tends to compound
rather than correct drafting deficiencies. The word 'prescribed' is
used 3 times in subsection 20J(2) of the Bankruptcy Act
1966 in relation to reasons for the Official Trustee holding
money, and once in relation to the interest rate applicable to
money so held. The intention of item 1 may be to confirm that the
words 'by the regulations', inserted as a result of the 1996
Amendment Act, should apply to all 4 references. If so, in
effecting this 'clarification' of the legislative intention in
1996, item 1 confirms the following ungrammatical expression in
subsection 20J(2):
Where moneys have been held, or are likely to be
held, for a prescribed by the regulations reason, or for one
prescribed by the regulations reason and then for another
prescribed by the regulations reason, by the Official
Trustee...etc.
Either the phrase 'by the regulations' is
intended to apply to all 4 references, in which case subsection
20J(2) would require grammatical adjustment as just pointed out, or
it is intended only to apply in relation to rates of interest, in
which case appropriate words of limitation would need to be
inserted in item 1.
The confusion surrounding item 1 is exacerbated
by two other unrelated matters. First, item 1 alters the Schedule
to the 1996 Amendment Act. The nett effect is to amend the
principal Act, the Bankruptcy Act 1966. Given that the
schedule of 1996 amendments commenced on 16 December 1996 - that
is, those amendments became provisions of the Principal Act over 2
years ago - it is not clear why Schedule 4 to the 1998 Bill seeks
to amend a Schedule in the 1996 amending legislation rather than
the principal Act (the same indirect method of amendment is adopted
in item 1 of Schedule 13 and items
1 and 2 of Schedule 16).
The second element of confusion arises from the
fact that the latest reprint of the Bankruptcy Act 1966
(Reprint No. 5) fails to include the phrase 'by the regulations'
for any of the 4 references to 'prescribed' in subsection
20J(2). A Note at page 414 of the Reprint states that the 'proposed
amendment was misdescribed and is not inserted in this
reprint.'(1)
Schedule 5 - Amendment of the Copyright Amendment
Act 1989
The Explanatory Memorandum states that
item 1 in Schedule 5 corrects a minor drafting
error. It does not. Instead it generates a drafting error. It does
so by making an inaccurate reference to an Act which was found
invalid by the High Court and repealed and re-enacted by the
Parliament in 1993. Any substantive effect which item 1 may have
achieved, if correctly drafted, has already been effected by
earlier legislation.
In 1989, the Parliament expressed an intention
to remove certain words from section 149A of the Copyright Act
1968.(2) That attempt miscarried because the 1989 Act was
found invalid by the High Court in March 1993 due to the operation
of section 55 of the Constitution.(3) The two provisions, to remove
the specified words, were re-enacted by the Parliament in 1993.(4)
On this occasion, the first provision (item 21) achieved its
intent. However the second provision - item 22 in the Schedule to
the 1989 Act as re-enacted - wrongly referred to 'person's' rather
than 'reader's'. Presumably this caused the purported removal of
this and all the surrounding words in item 22 to fail. The intended
effect was finally achieved with the passage of amending
legislation in 1998.(5)
Item 1 in Schedule 5 appears to
be a second (and unnecessary) attempt to rescue item 22 in the
Schedule to the 1989 Act. But it proceeds on the incorrect premise
that the error in the 1989 Act related to the use of the word 'a'
instead of 'the'. In doing so it has wrongly sought to correct item
21, an item which took full effect in 1993. The overall result is
to introduce new legal uncertainty where no problem exists.
Schedule 7 - Amendment of the Evidence Act
1995
Item 1 is linked to
items 19, 29 and 30. Taken
together they facilitate proof that certain official documents
produced in evidence are what they purport to be. The Evidence
Act 1995 already 'fast tracks' proof of documentary evidence
for a number of categories of documents, essentially by dispensing
with the need for a witness routinely to verify the document. Item
19 extends the procedure and the presumption of validity to
'Commonwealth documents'. Item 29 and 30 spell out the definition
of this term, which basically applies to forms, returns and similar
or prescribed documents lodged with Commonwealth agencies,
corporations and office-holders. Item 1 extends the operation of
the presumption to proceedings in all Australian
courts.
Items 2, 3, 5-7, 9, 16-18, 20, 22,
23, and 25-27 are all consequential on
item 24. Item 24 gives an extended operation to
certain sections of the Act so that they apply in all
Australian courts. The nominated sections all deal with
facilitating proof in relation to particular documents.
Proposed subsection 182(4B) gives the nominated
provisions Australia-wide application, if the documents are
currently or were previously within the possession of a
'Commonwealth entity' and they meet the definition of 'Commonwealth
documents' (see items 29 and 30 as discussed above).
Proposed subsection 182(4A) extends nationwide
operation to a provision which facilitates proof of receipt of
documents sent through the post, where the document was sent by a
'Commonwealth agency'. That term is defined in item
28, and parallels the definition of a 'Commonwealth
entity' except that it does not include the catch-all extension to
'any other body or organisation that is a Commonwealth owned body
corporate'. Item 21 is consequential on item
28.
Items 4, 11-13 and
15 are related. As the Explanatory Memorandum
points out:
Several provisions of the Evidence Act are
drafted on the assumption that a witness gives evidence by way of
oral testimony.
But growing reliance on evidence by affidavit,
for example in the Family Court, means certain provisions of the
Act would be given artificially constrained interpretation. Thus
references to 'oral evidence' have been amended by the above items
to accommodate the possibility that evidence may be adduced from a
witness in oral or written form.
Items 10 (in relation to the
hearsay rule) and 14 (in relation to the opinion
rule) share a common objective: to give full effect to post-18
April 1995 regulations which provide for a certificate or other
document to have evidentiary effect. Documents are from time to
time expressed by regulation under another Act to have evidentiary
effect. If they contain, say, hearsay material or an expression of
opinion, this sets up a conflict between two pieces of legislation:
the regulation and the Evidence Act 1995. Where the
regulation was made before commencement of the Evidence Act
1995, that tension was resolved by not applying the rules of
the Act and giving evidential effect to the document [see section
8(2)]. But where the regulation was made or amended after that date
(18 April 1995), the Act prevailed. Items 10 and 14 changes the
post-18 April 1995 situation, by disapplying the hearsay and
opinion rules found in the Evidence Act 1995.
Schedule 8 - Amendment of the Federal Court of
Australia Act 1976
The effect of item 1 is to
increase the pool of judges from which a full bench of the Federal
Court can be constituted, in order to hear an appeal from the
Supreme Court of the ACT. The other effect is to potentially dilute
the participation of Territory-based Federal Court judges in
appeals from the Territory's highest court.
The amendment requires an understanding of the
way in the ACT Supreme Court itself is constituted. A judge of the
ACT Supreme Court can be a 'resident judge' who is presumably a
resident of the Territory, but he or she can also be a judge of
another superior court appointed as an 'additional judge'. For
example, a Federal Court judge who customarily sits in NSW may be
an additional judge of the ACT Supreme Court, and this has
frequently been the case.
Appeals from the Supreme Court of the ACT are
generally heard by a full bench of the Federal Court. At present,
unless the Chief Justice of the Federal Court considers it
impracticable, the full bench must include a Federal Court judge
who holds a dual commission as a resident ACT Supreme Court
judge.
The amendment in item 1 would
remove the residence requirement relating to at least one member of
the full bench. A Full Court hearing an appeal from the ACT Supreme
Court would not need to include an ACT-based judge holding a dual
commission, as long as (barring impracticality) at least one member
holds a dual commission with both the ACT Supreme Court and the
Federal Court.
The Explanatory Memorandum seems to convey a
mistaken impression. It suggests the purpose of the amendment is
'to increase the number of Australian Capital Territory resident
judges available to sit on the Full Court of the Federal Court when
hearing appeals from the ACT Supreme Court'. To the contrary, the
purpose appears to be to increase the number of
non-resident judges who so qualify.
Item 2 widens the range of
people authorised by this section to administer oaths and
affirmations for the purposes of the Federal Court. The current
provision is confined to Judges, but the amendment would permit the
Registrar to authorise a variety of Court officials and staff to do
so as well.
Item 3 is essentially
consequential on item 2, but in re-writing subsection 45(1) it has
omitted reference to a Deputy District Registrar thereby narrowing
the class of officials who may witness affidavits at the same time
as seeking to extend it. No such intention is apparent in the
Explanatory Memorandum which suggests that again this is a drafting
error in the Bill.
Item 4 widens the
regulation-making power under the Federal Court Act 1976.
The Explanatory Memorandum suggests that the particular purpose is
to ensure that regulations can validly increase the dollar limit on
contracts which the Court may enter into, under paragraph
18A(4)(b).
Schedule 9 - Amendment of the High Court of
Australia Act 1979
Section 40 of the High Court of Australia
Act 1979 permits the Court to enter into contracts up to the
value of $250,000 or a 'prescribed higher amount'. However, the Act
contains no general regulation making power and therefore such an
amount could not be prescribed other than by amending the Act
itself. Item 1 will fill that gap, allowing
matters required, permitted, necessary or convenient to be
prescribed, to be prescribed by regulation.
Schedule 10 - Amendment of the Judges' Pensions Act
1968
The Judges' Pensions Act 1968 provides
for pensions to be payable to judges of a federal court and certain
other judges. In calculating a pension, 'prior judicial service'
elsewhere is added to the period spent as a 'Judge' under the Act.
That prior judicial service encompasses time spent, for example, as
a judge of the Northern Territory Supreme Court (while not holding
a dual commission as a federal judge). It does not include the
prior service of a judge who, while not holding a dual commission,
sat on the Supreme Court of the Australian Capital Territory.
Item 1 will remedy this anomaly.
Schedule 11 - Amendment of the Judiciary Act
1903
A court of 'original jurisdiction' is where a
matter is heard and decided judicially for the first time. The
Federal Court of Australia is a court created by statute, and has
original jurisdiction conferred on it under a variety of
Commonwealth laws. The Court can also hear a matter not within its
jurisdiction which is so closely associated with a matter before it
that is within jurisdiction, that the two are non-severable
('accrued' and 'associated' jurisdiction).(6)
One statutory source of the Federal Court's
jurisdiction is the Judiciary Act 1903. Subsection 39B(1A)
of the Judiciary Act 1903 confirms that the Federal
Court's jurisdiction includes a 'matter' arising in a number of
defined federal contexts. Item 1 seeks to confine
such 'matters' to the civil arena, in order according to the
Explanatory Memorandum to head off use of this section of the
Judiciary Act 1903 as a basis for private criminal
prosecutions or for including 'a criminal matter as an element of a
civil case' in the Federal Court.
The rationale and potential reach of the
amendment are not elaborated any further in the Explanatory
Memorandum. In relation to private prosecutions, it is notable that
already the Director of Public Prosecutions has the power to assume
control of any private prosecution and terminate it.(7) This indeed
was the rationale of the current Attorney-General for repealing
certain provisions which required the consent of a minister before
a prosecution could be instituted against a person suspected of a
Commonwealth offence.(8)
The phrase 'to include a criminal matter as an
element of a civil case in which the Federal Court has
jurisdiction' raises questions about item 1's
potential reach, questions which are not answered by the
Explanatory Memorandum. Is it targetted at collateral challenges in
the Federal Court to criminal proceedings being heard elsewhere? Is
it intended to cut back the associated and accrued jurisdiction of
the Federal Court discussed above? Would it prevent the raising of
an issue of genocide, for example, in a civil case against the
Commonwealth relating to Aboriginal child removals? Does the
amendment correspond to the description of the omnibus bill in
which it is contained, which is as one which 'makes amendments of a
minor policy nature'?(9)
Section 68 of the Judiciary Act 1903
provides State and Territory courts with jurisdiction to handle
criminal cases arising under Commonwealth law. Subsection (3)
limits the range of State and Territory courts which have
jurisdiction over committals and summary convictions. Item
3 will add State and Territory judges with like
jurisdiction at the State or Territory level to the list of those
who may exercise this particular form of Commonwealth jurisdiction.
Item 4 allows item 3 to operate from the time of
commencement, including to proceedings pending at that time.
Schedule 15 - Amendment of the Telecommunications
(Interception) Act 1979
Item 1 is another example of an
apparently unnecessary 'amendment'. It attempts to correct a
drafting error which the Parliament has already corrected, and
which therefore no longer exists. The intended effect was achieved
by item 16 of Schedule 1 to the Telecommunications
(Interception) and Listening Device Amendment Act 1997, which
commenced on 11 November 1997. There is nothing in the Explanatory
Memorandum to suggest that the remedial action taken by the
Parliament in 1997 was ineffective.
Correcting drafting errors
A primary purpose of this omnibus portfolio Bill
is to 'tidy up' legislation by correcting drafting errors. If the
analysis in this Digest is correct, the Bill exacerbates confusion
over one provision, apparently omits a word and thereby undercuts
the purpose of another amendment, and twice corrects drafting
errors where none exists, in one case creating fresh error. In
addition, the Explanatory Memorandum in explaining one amendment
describes the opposite effect to the one actually achieved.
Referring to Acts to be amended
Frequently Acts are amended in the following
way. A principal Act is passed. Later, an amendment to that Act is
made, in a Schedule to another Act. Once that amendment commences,
it becomes part of the principal Act. If a drafting error is
subsequently found in the amendment which was located in the
Schedule, it appears that the correction will be made to the
Schedule. This is despite the fact that by now, the provision
appears in the principal Act and in that practical sense the
Schedule has become redundant.
There are four examples of this practice in the
Bill (as noted in the discussion of Schedule 4). It may be that
there are reasons for the practice which outweigh the disadvantages
of such an indirect approach. It does make the Parliament's and the
public's task of ascertaining the legal effect of a particular
amendment much more circuitous and difficult.
'Collateral' criminal matters in the
Federal Court
The stated intent of item 1 in Schedule
11 is to deny the use of subsection 39B(1A) of the
Judiciary Act 1903 for the bringing of private
prosecutions before the Federal Court or for including 'a criminal
matter as an element of a civil case in which the Federal Court has
jurisdiction'. The potential reach of this provision and
particularly the meaning of this latter phrase are uncertain, and
not clarified by the Explanatory Memorandum. Mechanisms already
exist for bringing private prosecutions to an end, through the
office of the Director of Public Prosecutions. Depending on its
reach, it is open to question whether the item is a 'minor policy'
matter as the Explanatory Memorandum asserts, given that it is
intended to deny access to the courts for certain purposes.
Senate Committee recommendations
regarding the ARC
The Government indicated in its response to the
Senate Legal and Constitutional References Committee's report on
the Administrative Review Council (ARC) that it would not be
accepting Recommendation 11 which stated:
The Committee recommends that the Government
give an undertaking to respond to all Administrative Review Council
project reports within twelve months of their delivery.
Accordingly, there is no reference in Schedule 1
to such a requirement, although the Committee's recommendation
would not necessarily entail legislative action if the Government
had decided to accept it.
Constitutionality of charging
non-Commonwealth entities for services
Item 1 in Schedule 3 proposes
to allow the Director of the Australian Protective Service to
impose reasonable charges for protective services, where a request
comes from persons other than Commonwealth officials or
organisations.
There may be a constitutional question about the
capacity of the Commonwealth to charge for protective services
provided to non-Commonwealth entities. In its Judiciary Amendment
Bill 1998 recently considered by both houses, the Government
confined the range of clients to whom the Australian Government
Solicitor can provide legal services on the basis of what the
Attorney-General referred to as 'constitutional limits'. It appears
clear that the Commonwealth cannot carry on commercial activities
without some connection to a head of constitutional power. The
precise boundaries have not been defined in case law and are the
subject of legal debate.(10)
-
- The existence of confusion about the effect of the 1996
amendment is underscored by the fact that one loose-leaf bankruptcy
service (published by Law Book Company) inserts the words 'by the
regulations' only at the fourth reference to 'prescribed' whereas
another service (published by CCH) inserts after all four
references. Thus the official Reprint and two standard references
confront the reader with 3 different versions of how subsection
20J(2) currently reads.
- Items 21 and 22 of the Schedule to the Copyright Amendment
Act 1989.
- Australian Tape Manufacturers Association Ltd and Others v
The Commonwealth of Australia (1993) 177 CLR 480 per Mason CJ,
Brennan, Deane and Gaudron JJ.
- Copyright Amendment (Re-enactment) Act 1993.
- Item 51 in Schedule 5 of the Copyright Amendment Act (No.1)
1998 commenced on 30 July 1998.
- This may arise either due to the 'accrued jurisdiction' of the
Court arising from ss. 76(ii) and 77(i) of the Constitution and ss.
19 and 22 of the Federal Court of Australia Act 1976, or
the jurisdiction in associated matters provided in s. 32 of the
Federal Court of Australia Act 1976.
- Subsection 9(5) of the Director of Public Prosecutions Act
1983.
- Crimes and Other Legislation Amendment Bill 1996, Second
Reading Speech, The Hon. Daryl Williams, 4 December 1996: 'Those
provisions were originally enacted for the purpose of deterring
private prosecutions brought in inappropriate circumstances,
particularly for offences which related to national security or
international treaty obligations. However, since establishing the
office of the Commonwealth Director of Public Prosecutions the
retention of those provisions is difficult to justify. That is
particularly so now that the Director of Public Prosecutions has
the power to take over and discontinue a private prosecution
brought in relation to a Commonwealth offence.'
- Explanatory Memorandum, p. 1.
- N. Seddon and S. Bottomley, 'Commonwealth Companies and the
Constitution' (1998) 26 Federal Law Review 271. See also
paragraphs 4.12-4.13 of Report of the Review of the
Attorney-General's Legal Practice, March 1997 ('the Logan
Report').
Sean Brennan
22 March 1999
Bills Digest Service
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