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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Civil Law and Justice Legislation
Amendment Bill 2017
No. , 2017
(Attorney-General)
A Bill for an Act to amend various Acts relating to
law and justice, and for related purposes
No. , 2017
Civil Law and Justice Legislation Amendment Bill 2017
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 3
Schedule 1--Amendment of the Acts Interpretation Act 1901
4
Acts Interpretation Act 1901
4
Schedule 2--Amendment of the Archives Act 1983
5
Part 1--Access to records
5
Archives Act 1983
5
Part 2--Other amendments
10
Archives Act 1983
10
Schedule 3--Amendment of the Bankruptcy Act 1966
11
Bankruptcy Act 1966
11
Schedule 4--Amendment of the Domicile Act 1982
12
Domicile Act 1982
12
Schedule 5--Amendment of the Evidence Act 1995
13
Evidence Act 1995
13
Schedule 6--Amendment of the Family Law Act 1975
14
Part 1--Main amendments
14
Family Law Act 1975
14
Part 2--Amendments commencing up to 6 months after Royal
Assent
24
Division 1--Offence of retaining child overseas
24
Family Law Act 1975
24
Division 2--Other amendments
27
Family Law Act 1975
27
Part 3--Renumbering Part VIIIB of the Family Law Act 1975
29
Division 1--Renumbering Part VIIIB of the Family Law Act 1975
29
Family Law Act 1975
29
ii
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
Division 2--Consequential amendments of the Family Law Act 1975
31
Family Law Act 1975
31
Division 3--Consequential amendments of other Acts: definitions
33
Defence Force Retirement and Death Benefits Act 1973
33
Defence Forces Retirement Benefits Act 1948
33
Governor-General Act 1974
33
Judges' Pensions Act 1968
33
Parliamentary Contributory Superannuation Act 1948
34
Superannuation Act 1922
34
Superannuation Act 1976
34
Division 4--Consequential amendments of other Acts: other
amendments
34
Income Tax Assessment Act 1997
34
Superannuation (Unclaimed Money and Lost Members) Act 1999
34
Schedule 7--Amendment of the International Arbitration Act
1974
35
International Arbitration Act 1974
35
Schedule 8--Amendment of the Legislation Act 2003
38
Legislation Act 2003
38
Schedule 9--Amendment of the Marriage Act 1961
40
Marriage Act 1961
40
Schedule 10--Amendment of the Sex Discrimination Act 1984
51
Sex Discrimination Act 1984
51
No. , 2017
Civil Law and Justice Legislation Amendment Bill 2017
1
A Bill for an Act to amend various Acts relating to
1
law and justice, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Civil Law and Justice Legislation Amendment Act
5
2017.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
The day after this Act receives the Royal
Assent.
3. Schedule 2,
Part 1
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 6 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
4. Schedule 2,
Part 2
The day after this Act receives the Royal
Assent.
5. Schedule 3
The day after this Act receives the Royal
Assent.
6. Schedule 4
The day after the end of the period of 3
months beginning on the day this Act
receives the Royal Assent.
7. Schedule 5
The day after this Act receives the Royal
Assent.
8. Schedule 6,
Part 1
The day after this Act receives the Royal
Assent.
9. Schedule 6,
Part 2
A day or days to be fixed by Proclamation.
However, if any of the provisions do not
commence within the period of 6 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
10. Schedule 6,
Part 3
The 28th day after this Act receives the
Royal Assent.
11. Schedules 7
to 10
The day after this Act receives the Royal
Assent.
No. , 2017
Civil Law and Justice Legislation Amendment Bill 2017
3
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Schedule 1 Amendment of the Acts Interpretation Act 1901
4
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
Schedule 1--Amendment of the Acts
1
Interpretation Act 1901
2
3
Acts Interpretation Act 1901
4
1 Section 1A
5
Omit:
6
(d)
sections 19 to 20 (which deal generally with references
7
to Ministers and Departments in Acts, and with the
8
effect of machinery of government changes on
9
references to Ministers and Departments and other
10
authorities in Acts and Commonwealth agreements).
11
substitute:
12
(d)
sections 19 to 20 (which deal generally with references
13
to Ministers and Departments in Acts, with the effect of
14
machinery of government changes on references to
15
Ministers and Departments and other authorities in Acts
16
and Commonwealth agreements, and with the validity of
17
acts done by Ministers).
18
2 Subsection 19D(1)
19
Omit "The", substitute "Subject to section 19E, the".
20
3 After section 19D
21
Insert:
22
19E Validity of acts done by Ministers
23
If a Minister purports to exercise a power or perform a function or
24
duty that is conferred or imposed on another Minister by an Act,
25
the exercise of that power or the performance of that function or
26
duty is not invalid merely because the power, function or duty is
27
conferred or imposed on the other Minister.
28
Amendment of the Archives Act 1983 Schedule 2
Access to records Part 1
No. , 2017
Civil Law and Justice Legislation Amendment Bill 2017
5
Schedule 2--Amendment of the Archives Act
1
1983
2
Part 1--Access to records
3
Archives Act 1983
4
1 Section 40 (heading)
5
Repeal the heading, substitute:
6
40 Applications for access to records
7
2 Before subsection 40(1)
8
Insert:
9
Applications to which this section applies
10
3 At the end of subsection 40(1)
11
Add:
12
Note:
A determination under section 40B (applications made by persons
13
acting in concert etc.) may have the effect that the application is taken
14
to have been made by someone other than the person who actually
15
made it.
16
4 Before subsection 40(2)
17
Insert:
18
Assistance to make applications
19
5 Subsections 40(3) and (4)
20
Repeal the subsections, substitute:
21
Timeframe for making decision on application
22
(3) The Archives must take all reasonable steps to notify the applicant
23
of a decision on an application to which this section applies:
24
(a) as soon as practicable after the day the application is received
25
by the Archives; and
26
Schedule 2 Amendment of the Archives Act 1983
Part 1 Access to records
6
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
(b) before the end of the consideration period for the application
1
under section 40A.
2
Notice of decision relating to refusal to grant access
3
6 Before subsection 40(8)
4
Insert:
5
Effect of delay in dealing with application
6
7 Paragraph 40(8)(b)
7
Repeal the paragraph, substitute:
8
(b) the consideration period for the application under
9
section 40A has ended; and
10
8 Subsection 40(9)
11
Omit "expiration of the period referred to in subsection (8)", substitute
12
"end of the consideration period for the application under section 40A".
13
9 Subsection 40(9)
14
Omit "that subsection", substitute "subsection (8)".
15
10 Subsection 40(10)
16
Omit "expiration of the period referred to in subsection (8)", substitute
17
"end of the consideration period for the application under section 40A".
18
11 At the end of Division 3 of Part V
19
Add:
20
40A Consideration period for applications for access to records
21
(1) The consideration period for an application to which section 40
22
applies is the period starting on the day after the application is
23
received by the Archives and ending:
24
(a) subject to paragraph (b), at the end of the shorter of the
25
following periods (the initial period):
26
(i) 90 business days;
27
(ii) a period of business days prescribed by the regulations
28
for the purposes of this subparagraph; or
29
Amendment of the Archives Act 1983 Schedule 2
Access to records Part 1
No. , 2017
Civil Law and Justice Legislation Amendment Bill 2017
7
(b) if the initial period is extended on one or more occasions
1
under this section--at the end of the initial period as so
2
extended.
3
Extending the initial period--by agreement with applicant
4
(2) The Director-General may, with the applicant's written agreement
5
and before the end of the consideration period, by written notice
6
given to the applicant extend the application's initial period
7
(including that period as previously extended under this section) by
8
a specified number of business days.
9
(3) If the Director-General requests the applicant to enter into an
10
agreement for the purposes of subsection (2), the Director-General
11
must inform the applicant that he or she is not obliged to comply
12
with the request.
13
Extending the initial period--number of items exceeds the
14
application cap
15
(4) The Director-General may, before the end of the consideration
16
period, by written notice given to the applicant extend the
17
application's initial period (including that period as previously
18
extended under this section) by a specified number of business
19
days, if the Director-General reasonably believes that:
20
(a) the applicant has made one or more applications for which
21
the consideration period has not ended; and
22
(b) the number of items that describe the records covered by
23
those one or more applications exceeds the following
24
number:
25
(i) unless subparagraph (ii) applies--25;
26
(ii) if the regulations prescribe a larger number for the
27
purposes of this subparagraph--that larger number.
28
(5) For the purposes of paragraph (4)(b), an item is the smallest
29
discrete unit used by the Archives to describe a record in a series
30
for purposes related to the care, management or retrieval of the
31
record.
32
Example: For records in a file:
33
(a) if the file is divided into parts--each of the parts is a separate
34
item; and
35
(b) if the file is not divided into parts--the file is a single item.
36
Schedule 2 Amendment of the Archives Act 1983
Part 1 Access to records
8
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
Limit on extensions under subsection (4)
1
(6) A particular extension under subsection (4) must not have the
2
effect that an application's initial period is extended under that
3
subsection by more than the number of business days worked out
4
using the following formula (rounding up to the nearest whole
5
number):
6
Items requested
Unextended initial period
Application cap
ï‚´
7
where:
8
application cap means the number applicable under
9
subparagraph (4)(b)(i) or (ii).
10
items requested means the number of items that the
11
Director-General reasonably believes describe the records covered
12
by the one or more applications mentioned in paragraph (4)(b) in
13
relation to the extension.
14
unextended initial period means the number of business days in
15
the initial period under subparagraph (1)(a)(i) or (ii), disregarding
16
any extensions under this section.
17
Varying or revoking extensions under subsection (4)
18
(7) The Director-General may vary or revoke an extension under
19
subsection (4) by written notice given to the applicant before the
20
end of the period of the extension. This subsection does not limit
21
subsection 33(3) of the Acts Interpretation Act 1901.
22
(8) For the purposes of applying subsection (6) in relation to an
23
extension that is varied under subsection (7), the number of items
24
mentioned in paragraph (4)(b) is to be determined on the basis of
25
applications made by the applicant as at the time of the variation.
26
Matters to be taken into account for extensions under
27
subsection (4)
28
(9) The Director-General must take into account the matters (if any)
29
prescribed by the regulations for the purposes of this subsection in:
30
(a) extending an application's initial period under subsection (4);
31
or
32
Amendment of the Archives Act 1983 Schedule 2
Access to records Part 1
No. , 2017
Civil Law and Justice Legislation Amendment Bill 2017
9
(b) varying an extension under that subsection.
1
40B Applications for access to records made by persons acting in
2
concert etc.
3
(1) The Director-General may, by writing, determine that an
4
application to which section 40 applies that was made by a person
5
(the first person) is taken for the purposes of this Act to have been
6
made by another person if the Director-General reasonably
7
suspects that the first person:
8
(a) acts, or is accustomed to act; or
9
(b) under a contract or an arrangement or understanding
10
(whether formal or informal) is intended or expected to act;
11
in accordance with the directions, instructions or wishes of, or in
12
concert with, the other person in relation to the making of such
13
applications.
14
(2) The determination has effect accordingly.
15
(3) The Director-General must give written notice of the determination
16
to both of the persons mentioned in subsection (1).
17
12 Paragraph 42(2)(b)
18
Omit "as expeditiously as practicable, give notice to the applicant of the
19
decision reached on the reconsideration", substitute "give notice to the
20
applicant of the decision on the reconsideration as soon as practicable,
21
and within 30 business days, after the day the application for the
22
reconsideration is received by the Archives".
23
13 Paragraph 43(3)(b)
24
Omit "14 days", substitute "30 business days".
25
14 Application of amendments
26
(1)
Sections 40, 40A and 40B of the Archives Act 1983, as in force after the
27
commencement of this item, apply in relation to an application made
28
after that commencement.
29
(2)
Paragraphs 42(2)(b) and 43(3)(b) of the Archives Act 1983, as in force
30
after the commencement of this item, apply in relation to an application
31
under section 42 of that Act for a reconsideration of a decision if the
32
application for the reconsideration is made after that commencement.
33
Schedule 2 Amendment of the Archives Act 1983
Part 2 Other amendments
10
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
Part 2--Other amendments
1
Archives Act 1983
2
15 Subsection 3(1) (definition of Commonwealth record)
3
Omit "or is a register or guide maintained in accordance with
4
Part VIII".
5
16 Subsection 17(4)
6
After "Council" (second occurring), insert "for the time being holding
7
office".
8
17 Paragraph 40(1)(d)
9
Omit "the Australian National Guide to Archival Material", substitute
10
"any index or guide published by the Archives".
11
18 Application of amendment
--particulars of records to be
12
provided in application
13
Paragraph 40(1)(d) of the Archives Act 1983, as in force after the
14
commencement of this item, applies in relation to an application made
15
after that commencement.
16
19 Part VIII
17
Repeal the Part.
18
Amendment of the Bankruptcy Act 1966 Schedule 3
No. , 2017
Civil Law and Justice Legislation Amendment Bill 2017
11
Schedule 3--Amendment of the Bankruptcy
1
Act 1966
2
3
Bankruptcy Act 1966
4
1 After subparagraph 35(1)(b)(ii)
5
Insert:
6
(iia) an applicant for an order under subsection 90K(1) or (3)
7
of the Family Law Act 1975 in relation to the setting
8
aside of a financial agreement of the parties to the
9
marriage; or
10
2 After subparagraph 35(1A)(b)(ii)
11
Insert:
12
(iia) an applicant for an order under subsection 90UM(1) or
13
(6) of the Family Law Act 1975 in relation to the setting
14
aside of a Part VIIIAB financial agreement of the parties
15
to the de facto relationship; or
16
Schedule 4 Amendment of the Domicile Act 1982
12
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
Schedule 4--Amendment of the Domicile Act
1
1982
2
3
Domicile Act 1982
4
1 Subsection 3(6)
5
Repeal the subsection, substitute:
6
(6) This Act applies to the following Territories:
7
(a) the Australian Capital Territory;
8
(b) Norfolk Island;
9
(c) the Jervis Bay Territory;
10
(d) the Territory of Christmas Island;
11
(e) the Territory of Cocos (Keeling) Islands;
12
(f) any external Territory declared by the regulations to be a
13
Territory to which this Act extends.
14
Amendment of the Evidence Act 1995 Schedule 5
No. , 2017
Civil Law and Justice Legislation Amendment Bill 2017
13
Schedule 5--Amendment of the Evidence Act
1
1995
2
3
Evidence Act 1995
4
1 Subsection 160(1)
5
Omit "fourth", substitute "seventh".
6
2 Application of amendment
7
The amendment of section 160 of the Evidence Act 1995 made by this
8
Schedule applies in relation to postal articles sent after this item
9
commences.
10
Schedule 6 Amendment of the Family Law Act 1975
Part 1 Main amendments
14
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
Schedule 6--Amendment of the Family Law
1
Act 1975
2
Part 1--Main amendments
3
Family Law Act 1975
4
1 Subsection 4(1)
5
Insert:
6
conveyance includes a vehicle, a vessel and an aircraft.
7
dwelling house includes a conveyance, or a room in
8
accommodation, in which people ordinarily retire for the night.
9
2 Subsection 4(1) (definition of Registry Manager)
10
Repeal the definition, substitute:
11
Registry Manager means:
12
(a) for the Family Court--the Registry Manager of a Registry of
13
the Court or any other appropriate officer or staff member of
14
the Court; or
15
(b) for any other court--the principal officer of the court or any
16
other appropriate officer or staff member of the court.
17
3 Subsection 4(1) (definition of warrant issued under a
18
provision of this Act)
19
Repeal the definition.
20
4 At the end of section 10B
21
Add:
22
; or (c) one or more persons who may apply for a parenting order
23
under section 65C to deal with issues relating to the care of
24
children.
25
5 Paragraph 10F(a)
26
Repeal the paragraph, substitute:
27
(a) in which a family dispute resolution practitioner:
28
Amendment of the Family Law Act 1975 Schedule 6
Main amendments Part 1
No. , 2017
Civil Law and Justice Legislation Amendment Bill 2017
15
(i) helps people affected, or likely to be affected, by
1
separation or divorce to resolve some or all of their
2
disputes with each other; or
3
(ii) helps persons who may apply for a parenting order
4
under section 65C to resolve some or all of their
5
disputes with each other relating to the care of children;
6
and
7
6 Subsection 11C(3)
8
Repeal the subsection, substitute:
9
(3) Despite subsection (2), a thing said or admission made is
10
admissible even if the person who said the thing or made the
11
admission had not been informed of the effect of subsection (1), if:
12
(a) the thing was said or the admission was made by a person
13
(including a child under 18) indicating that a child under 18
14
has been abused or is at risk of abuse; and
15
(b) for a thing or admission that was obtained improperly or in
16
contravention, or in consequence of an impropriety or of a
17
contravention, of an Australian law--the evidence is
18
admissible under section 138 of the Evidence Act 1995;
19
unless, in the opinion of the court, sufficient evidence of the thing
20
said or the admission made is available to the court from other
21
sources.
22
Note:
A thing that is said, or an admission that is made, by a child under 18
23
may relate to the child him or herself, or another child under 18.
24
7 Application of amendments
25
The amendment of section 11C of the Family Law Act 1975 made by
26
this Part applies in relation to a thing said or an admission made if the
27
thing or admission is to be admitted, after this item commences, into
28
proceedings (whether those proceedings are instituted before or after
29
that time).
30
8 After subsection 21(2)
31
Insert:
32
(2A) The Court is, and is taken always to have been, a court of law and
33
equity.
34
Schedule 6 Amendment of the Family Law Act 1975
Part 1 Main amendments
16
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
9 Subsection 36(1)
1
Omit "(1)".
2
10 Subsection 36(2)
3
Repeal the subsection.
4
11 At the end of Division 4 of Part IVA
5
Add:
6
38Z Protection of Registrars conducting conferences about property
7
matters
8
(1) In conducting a conference that:
9
(a) is with the parties to property settlement proceedings; and
10
(b) relates to the matter to which the proceedings relate;
11
a Registrar of the Family Court, of the Federal Circuit Court or of a
12
Family Court of a State has the same protection and immunity as a
13
Judge of the Family Court has in performing the functions of a
14
Judge.
15
Note:
Registrar is defined in subsection 4(1).
16
(2) This section does not limit any other protection or immunity such a
17
Registrar has (in relation to such a conference or otherwise).
18
12 Subsection 39(6) (note)
19
Repeal the note.
20
13 Before subsection 44(1A)
21
Insert:
22
Proceedings in relation to marriages
23
14 Before subsection 44(1B)
24
Insert:
25
Amendment of the Family Law Act 1975 Schedule 6
Main amendments Part 1
No. , 2017
Civil Law and Justice Legislation Amendment Bill 2017
17
Limitation on applications for divorce orders within 2 years of
1
marriage
2
15 Subsection 44(2)
3
Repeal the subsection.
4
16 Before subsection 44(3)
5
Insert:
6
Limitation on applications relating to certain maintenance and
7
property proceedings
8
17 Subsection 44(5)
9
Repeal the subsection, substitute:
10
Proceedings in relation to de facto relationships
11
(5) Subject to subsection (6), a party to a de facto relationship may
12
apply for an order under section 90SE, 90SG or 90SM, or a
13
declaration under section 90SL, only if:
14
(a) the application is made within the period (the standard
15
application period) of:
16
(i) 2 years after the end of the de facto relationship; or
17
(ii) 12 months after a financial agreement between the
18
parties to the de facto relationship was set aside, or
19
found to be invalid, as the case may be; or
20
(b) both parties to the de facto relationship consent to the
21
application.
22
(5A) However, if proceedings are instituted by an application made with
23
the consent of both of the parties to the de facto relationship, the
24
court may dismiss the proceedings if it is satisfied that, because the
25
consent was obtained by fraud, duress or unconscionable conduct,
26
allowing the proceedings to continue would amount to a
27
miscarriage of justice.
28
18 Application of amendments
29
(1)
The amendments of section 44 of the Family Law Act 1975 made by
30
this Part apply in relation to applications made after this item
31
commences.
32
Schedule 6 Amendment of the Family Law Act 1975
Part 1 Main amendments
18
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
(2)
The repeal of subsection 44(2) of the Family Law Act 1975 by this Part
1
also applies in relation to any application made before this item
2
commences if the respondent to the application has not filed a response
3
to the application before that time.
4
19 Subsection 65L(1)
5
Omit "subsection (2)", substitute "subsections (2) and (3)".
6
20 At the end of section 65L
7
Add:
8
(3) A court may make an order under subsection (1) relating to a final
9
parenting order only if the court is satisfied that exceptional
10
circumstances warrant the making of the order under
11
subsection (1).
12
21 Section 67Q (note 1)
13
Omit "Section 122AA authorises the use of reasonable force", substitute
14
"Section 122A deals with the use of reasonable force by certain
15
persons".
16
22 Subsection 67Z(4) (definition of Registry Manager)
17
Repeal the definition.
18
23 Subsection 67ZBA(4) (definition of Registry Manager)
19
Repeal the definition.
20
24 At the end of subsection 69ZH(2)
21
Add:
22
Note:
The provisions mentioned in this subsection are generally expressed in
23
terms of children, without distinguishing between children of
24
marriages and ex-nuptial children. This section does not limit the
25
operation of those provisions, but provides for an alternative
26
constitutional basis (relying on paragraphs 51(xxi) and (xxii) of the
27
Constitution), so those provisions can at least operate in relation to
28
children of marriages even if they cannot also operate in relation to
29
ex-nuptial children.
30
25 Section 116C
31
Repeal the section.
32
Amendment of the Family Law Act 1975 Schedule 6
Main amendments Part 1
No. , 2017
Civil Law and Justice Legislation Amendment Bill 2017
19
26 Subsection 117(2)
1
Omit "and (5)", substitute ", (5) and (6)".
2
27 Before subsection 117(3)
3
Insert:
4
Costs of independent children's lawyer
5
28 Before subsection 117(4A)
6
Insert:
7
Limit on orders relating to intervention under section 91B
8
29 Before subsection 117(5)
9
Insert:
10
Funding of independent children's lawyer not to affect costs order
11
30 At the end of section 117
12
Add:
13
Limit on orders against guardians ad litem
14
(6) The court must not make an order under subsection (2) against a
15
guardian ad litem unless the court is satisfied that one or more acts
16
or omissions of the guardian relating to the proceedings are
17
unreasonable or have delayed the proceedings unreasonably.
18
31 Application of amendments
19
The amendments of section 117 of the Family Law Act 1975 made by
20
this Part apply in relation to persons who become guardians ad litem in
21
proceedings on or after the commencement of this Part, whether the
22
proceedings were instituted before, on or after that commencement.
23
32 Subsection 117C(2)
24
Omit "the fact that the offer has been made, or the terms of the offer,",
25
substitute "the terms of the offer".
26
33 Subsection 117C(3)
27
Repeal the subsection.
28
Schedule 6 Amendment of the Family Law Act 1975
Part 1 Main amendments
20
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
34 Application of amendments
1
The amendments of section 117C of the Family Law Act 1975 made by
2
this Part apply in relation to offers made before, on or after the
3
commencement of this Part.
4
35 Sections 122AA and 122A
5
Repeal the sections, substitute:
6
122A Making arrests under this Act or warrants
7
Application
8
(1) This section and section 122AA apply to any of the following
9
persons (the arrester) who is authorised by this Act, or by a
10
warrant issued under this Act, the standard Rules of Court or the
11
related Federal Circuit Court Rules, to arrest another person (the
12
arrestee):
13
(a) the Marshal of the Family Court;
14
(b) a Deputy Marshal of the Family Court;
15
(c) the Sheriff of the Federal Circuit Court;
16
(d) a Deputy Sheriff of the Federal Circuit Court;
17
(e) the Sheriff of a court of a State or Territory;
18
(f) a Deputy Sheriff of a court of a State or Territory;
19
(g) a police officer;
20
(h) the Australian Border Force Commissioner;
21
(i) an APS employee in the Department administered by the
22
Minister administering the Australian Border Force Act
23
2015.
24
Use of force
25
(2) In the course of arresting the arrestee, the arrester:
26
(a) must not use more force, or subject the arrestee to greater
27
indignity, than is necessary and reasonable to make the arrest
28
or to prevent the arrestee's escape after the arrest; and
29
(b) must not do anything that is likely to cause the death of, or
30
grievous bodily harm to, the arrestee unless the arrester
31
reasonably believes that doing that thing is necessary to
32
protect life or prevent serious injury to another person
33
(including the arrester); and
34
Amendment of the Family Law Act 1975 Schedule 6
Main amendments Part 1
No. , 2017
Civil Law and Justice Legislation Amendment Bill 2017
21
(c) if the arrestee is attempting to escape arrest by fleeing--must
1
not do a thing described in paragraph (b) unless:
2
(i) the arrester reasonably believes that doing that thing is
3
necessary to protect life or prevent serious injury to
4
another person (including the arrester); and
5
(ii) the arrestee has, if practicable, been called on to
6
surrender and the arrester reasonably believes that the
7
arrestee cannot be arrested in any other way.
8
Informing the arrestee of grounds for arrest
9
(3) When arresting the arrestee, the arrester must inform the arrestee of
10
the grounds for the arrest.
11
(4) It is sufficient if the arrestee is informed of the substance of those
12
grounds, not necessarily in precise or technical language.
13
(5) Subsection (3) does not apply if:
14
(a) it is reasonable, in the circumstances, to assume that the
15
arrestee knows the substance of the grounds for the arrest; or
16
(b) the arrestee's actions make it impracticable for the arrester to
17
inform the arrestee of those grounds.
18
122AA Powers to enter and search premises, and stop conveyances,
19
for making arrests under this Act or warrants
20
Power to enter premises
21
(1) If the arrester (see subsection 122A(1)) reasonably believes the
22
arrestee (see that subsection) is on premises, the arrester may enter
23
the premises, using such force as is necessary and reasonable in the
24
circumstances, at any time of the day or night for the purpose of
25
searching the premises for the arrestee or arresting the arrestee.
26
(2) However, the arrester must not enter a dwelling house between 9
27
pm one day and 6 am the next day unless he or she reasonably
28
believes that it would not be practicable to arrest the arrestee there
29
or elsewhere at another time.
30
Schedule 6 Amendment of the Family Law Act 1975
Part 1 Main amendments
22
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
Power to stop and detain conveyance
1
(3) If the arrester may enter and search a conveyance under
2
subsection (1) (disregarding subsection (2)), the arrester may, for
3
the purposes of effecting the entry and search, stop and detain the
4
conveyance.
5
Note:
The reference in subsection (1) to premises covers a conveyance: see
6
subsection (5).
7
Rules about stopping, detaining, entering and searching
8
conveyances
9
(4) If the arrester stops, detains, enters or searches a conveyance under
10
this section for the purposes of arresting the arrestee, the arrester:
11
(a) may use such assistance as is necessary; and
12
(b) must search the conveyance in a public place or in some
13
other place to which members of the public have ready
14
access; and
15
(c) must not detain the conveyance for longer than is necessary
16
and reasonable to search it; and
17
(d) may use such force as is necessary and reasonable in the
18
circumstances, but must not damage the conveyance by
19
forcing open a part of the conveyance unless:
20
(i) the person (if any) apparently in charge of the
21
conveyance has been given a reasonable opportunity to
22
open that part; or
23
(ii) it is not possible to give that person such an opportunity.
24
Definition of premises
25
(5) In this section:
26
premises includes a place and a conveyance.
27
36 Application of amendments
28
Sections 122A and 122AA of the Family Law Act 1975, as inserted by
29
this Part, apply in relation to arrests:
30
(a) authorised by the Family Law Act 1975 on or after the
31
commencement of this Part; or
32
(b) authorised by warrants issued on or after that
33
commencement.
34
Amendment of the Family Law Act 1975 Schedule 6
Main amendments Part 1
No. , 2017
Civil Law and Justice Legislation Amendment Bill 2017
23
37 Subsection 124(1)
1
Omit "in accordance with this section", substitute "by the Chief Justice
2
of the Family Court of Australia".
3
38 Subsection 124(3)
4
Repeal the subsection.
5
39 Subsection 124(4)
6
Omit "with the Governor of the State under section 112", substitute
7
"under section 122B".
8
40 Subsection 124(6)
9
Omit "Governor-General", substitute "Chief Justice of the Family Court
10
of Australia".
11
41 Application of amendments
12
(1)
The amendments of subsections 124(1), (3) and (4) of the Family Law
13
Act 1975 made by this Part apply in relation to an appointment of a
14
person as a member of the Rules Advisory Committee made after this
15
item commences.
16
(2)
The amendment of subsection 124(6) of the Family Law Act 1975 made
17
by this Part applies in relation to any appointment of a person as a
18
member of the Rules Advisory Committee (whether the appointment is
19
made before or after this item commences).
20
Schedule 6 Amendment of the Family Law Act 1975
Part 2 Amendments commencing up to 6 months after Royal Assent
24
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
Part 2--Amendments commencing up to 6 months
1
after Royal Assent
2
Division 1
--Offence of retaining child overseas
3
Family Law Act 1975
4
42 Subsection 65X(2)
5
After "65Z", insert ", 65ZAA".
6
43 Subsection 65X(2)
7
After "65Y", insert ", 65YA".
8
44 Section 65Y (heading)
9
Repeal the heading, substitute:
10
65Y Obligations if certain parenting orders have been made: taking
11
or sending a child outside Australia
12
45 After section 65Y
13
Insert:
14
65YA Obligations if certain parenting orders have been made:
15
retaining a child outside Australia
16
A person commits an offence if:
17
(a) a parenting order to which this Subdivision applies is in force
18
in relation to a child; and
19
(b) the child has been taken or sent from Australia to a place
20
outside Australia, by or on behalf of a party to the
21
proceedings in which the parenting order was made:
22
(i) with the consent in writing (authenticated as prescribed)
23
of each person in whose favour the parenting order was
24
made; or
25
(ii) in accordance with an order of a court made, under this
26
Part or under a law of a State or Territory, at the time, or
27
after, the parenting order was made; and
28
Amendment of the Family Law Act 1975 Schedule 6
Amendments commencing up to 6 months after Royal Assent Part 2
No. , 2017
Civil Law and Justice Legislation Amendment Bill 2017
25
(c) the person retains the child outside Australia otherwise than
1
in accordance with the consent or order (whether or not the
2
person took or sent the child as mentioned in paragraph (b));
3
and
4
(d) the person:
5
(i) was a party to the proceedings in which the parenting
6
order was made; or
7
(ii) is retaining the child on behalf of, or at the request of,
8
such a party.
9
Note:
The ancillary offence provisions of the Criminal Code, including
10
section 11.1 (attempt), apply in relation to the offence created by this
11
section.
12
Penalty: Imprisonment for 3 years.
13
46 Section 65Z (heading)
14
Repeal the heading, substitute:
15
65Z Obligations if proceedings for the making of certain parenting
16
orders are pending: taking or sending a child outside
17
Australia
18
47 After section 65Z
19
Insert:
20
65ZAA Obligations if proceedings for the making of certain
21
parenting orders are pending: retaining a child outside
22
Australia
23
A person commits an offence if:
24
(a) proceedings (the Part VII proceedings) for the making, in
25
relation to a child, of a parenting order to which this
26
Subdivision applies are pending; and
27
(b) the child has been taken or sent from Australia to a place
28
outside Australia by or on behalf of a party to the Part VII
29
proceedings:
30
(i) with the consent in writing (authenticated as prescribed)
31
of each other party to the Part VII proceedings; or
32
Schedule 6 Amendment of the Family Law Act 1975
Part 2 Amendments commencing up to 6 months after Royal Assent
26
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
(ii) in accordance with an order of a court made, under this
1
Part or under a law of a State or Territory, after the
2
institution of the Part VII proceedings; and
3
(c) the person retains the child outside Australia otherwise than
4
in accordance with the consent or order (whether or not the
5
person took or sent the child as mentioned in paragraph (b));
6
and
7
(d) the person is a party to the Part VII proceedings, or is
8
retaining the child on behalf of, or at the request of, such a
9
party.
10
Note:
The ancillary offence provisions of the Criminal Code, including
11
section 11.1 (attempt), apply in relation to the offence created by this
12
subsection.
13
Penalty: Imprisonment for 3 years.
14
48 Paragraph 65ZD(a)
15
Omit "or sent", substitute ", sent or retained".
16
49 Paragraph 65ZD(b)
17
Omit "or sending", substitute ", sending or retaining".
18
50 At the end of Subdivision E of Division 6 of Part VII
19
Add:
20
65ZE Extended geographical jurisdiction--category D
21
Section 15.4 of the Criminal Code (extended geographical
22
jurisdiction--category D) applies to an offence against any of
23
sections 65Y to 65ZB (taking, sending or retaining a child outside
24
Australia).
25
51 Paragraph 117A(1)(b)
26
Omit "or 65Z", substitute ", 65YA, 65Z or 65ZAA".
27
52 Application of amendments
28
(1)
The amendments made by this Division apply to:
29
(a) a child taken or sent from Australia on or after the
30
commencement of this Division; or
31
Amendment of the Family Law Act 1975 Schedule 6
Amendments commencing up to 6 months after Royal Assent Part 2
No. , 2017
Civil Law and Justice Legislation Amendment Bill 2017
27
(b) a child taken or sent from Australia before the
1
commencement of this Division, if the period specified in the
2
consent or order in accordance with which the child was
3
taken or sent:
4
(i) ended after that commencement; or
5
(ii) was extended so that it ended after that commencement.
6
(2)
Subitem (1) does not apply to the amendments of sections 65Y, 65Z and
7
65ZD of the Family Law Act 1975 made by this Division.
8
Division 2
--Other amendments
9
Family Law Act 1975
10
53 At the end of subsection 12F(1)
11
Add:
12
; and (c) section 12D (about Part VII proceedings).
13
54 Subsection 67K(2)
14
Omit "(including the Commonwealth central authority)", substitute
15
"(including one appointed as the Central Authority for the
16
Commonwealth, a State or a Territory for the purposes of Article 29 of
17
the Convention)".
18
55 Subsection 67K(3)
19
Repeal the subsection, substitute:
20
(3) For the purposes of the Child Abduction Convention, a person
21
(including one appointed as the Central Authority for the
22
Commonwealth, a State or a Territory for the purposes of Article 6
23
of the Convention) may apply to a court for a location order.
24
(4) In this section:
25
Child Abduction Convention means the Convention on the Civil
26
Aspects of International Child Abduction done at The Hague on
27
25 October 1980.
28
Note:
The Child Abduction Convention is in Australian Treaty Series 1987
29
No. 2 ([1987] ATS 2) and could in 2017 be viewed in the Australian
30
Treaties Library on the AustLII website (http://www.austlii.edu.au).
31
Schedule 6 Amendment of the Family Law Act 1975
Part 2 Amendments commencing up to 6 months after Royal Assent
28
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
Child Protection Convention has the same meaning as in
1
section 111CA.
2
Amendment of the Family Law Act 1975 Schedule 6
Renumbering Part VIIIB of the Family Law Act 1975 Part 3
No. , 2017
Civil Law and Justice Legislation Amendment Bill 2017
29
Part 3--Renumbering Part VIIIB of the Family Law
1
Act 1975
2
Division 1
--Renumbering Part VIIIB of the Family Law
3
Act 1975
4
Family Law Act 1975
5
56 Amendments of listed provisions
--renumbering
6
(1)
The provisions listed in column 1 of an item in the following table are
7
renumbered as set out in column 2 of that item.
8
9
Renumbering
Item
Column 1
Provision
Column 2
Renumber as:
1
Section 90MA
Section 90XA
2
Section 90MB
Section 90XB
3
Section 90MC
Section 90XC
4
Section 90MD
Section 90XD
5
Section 90MDA
Section 90XDA
6
Section 90ME
Section 90XE
7
Section 90MF
Section 90XF
8
Section 90MG
Section 90XG
9
Section 90MH
Section 90XH
10
Section 90MHA
Section 90XHA
11
Section 90MI
Section 90XI
12
Section 90MJ
Section 90XJ
13
Section 90MK
Section 90XK
14
Section 90ML
Section 90XL
15
Section 90MLA
Section 90XLA
16
Section 90MM
Section 90XM
17
Section 90MN
Section 90XN
18
Section 90MO
Section 90XO
19
Section 90MP
Section 90XP
Schedule 6 Amendment of the Family Law Act 1975
Part 3 Renumbering Part VIIIB of the Family Law Act 1975
30
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
Renumbering
Item
Column 1
Provision
Column 2
Renumber as:
20
Section 90MQ
Section 90XQ
21
Section 90MR
Section 90XR
22
Section 90MS
Section 90XS
23
Section 90MT
Section 90XT
24
Section 90MU
Section 90XU
25
Section 90MUA
Section 90XUA
26
Section 90MV
Section 90XV
27
Section 90MW
Section 90XW
28
Section 90MX
Section 90XX
29
Section 90MY
Section 90XY
30
Section 90MZ
Section 90XZ
31
Section 90MZA
Section 90XZA
32
Section 90MZB
Section 90XZB
33
Section 90MZC
Section 90XZC
34
Section 90MZD
Section 90XZD
35
Section 90MZE
Section 90XZE
36
Section 90MZF
Section 90XZF
37
Section 90MZG
Section 90XZG
38
Section 90MZH
Section 90XZH
(2)
A reference in any:
1
(a) law of the Commonwealth; or
2
(b) notice or other document given under a law of the
3
Commonwealth; or
4
(c) contract, agreement, deed, judgment or other instrument;
5
in force immediately before the commencement of this item, to a
6
section of the Family Law Act 1975 mentioned in column 1 of an item
7
of the table in subitem (1) of this item is treated, from that
8
commencement, as being a reference to the section mentioned in
9
column 2 of that item of the table.
10
Amendment of the Family Law Act 1975 Schedule 6
Renumbering Part VIIIB of the Family Law Act 1975 Part 3
No. , 2017
Civil Law and Justice Legislation Amendment Bill 2017
31
Division 2
--Consequential amendments of the Family
1
Law Act 1975
2
Family Law Act 1975
3
57 Amendments of listed provisions
4
5
Amendments consequential on renumbering sections of Part VIIIB
Item
Column 1
Provision
Column 2
Omit
Column 3
Substitute
1
Section 90MD (note at the end of the
definition of declaration time)
90MP(2)
90XP(2)
2
Section 90MD (definition of flagging
order)
90MU(1)
90XU(1)
3
Section 90MD (definition of flag lifting
agreement)
90MN
90XN
4
Section 90MD (definition of in force)
90MG
90XG
5
Section 90MD (paragraph (a) of the
definition of operative time)
90MI
90XI
6
Section 90MD (paragraph (b) of the
definition of operative time)
90MK
90XK
7
Section 90MD (paragraph (b) of the
definition of operative time)
90MLA(2)(c)
90MXA(2)(c)
8
Section 90MD (paragraph (a) of the
definition of payment flag)
90ML
90XL
9
Section 90MD (paragraph (a) of the
definition of payment split)
90MJ
90XJ
10
Section 90MD (definition of
reversionary interest)
90MF
90XF
11
Section 90MD (paragraph (b) of the
definition of secondary government
trustee)
90MDA
90XDA
12
Section 90MD (definition of separation
declaration)
90MP
90XP
13
Section 90MD (definition of splittable
payment)
90ME
90XE
14
Section 90MD (definition of splitting
order)
90MT(1)
90XT(1)
Schedule 6 Amendment of the Family Law Act 1975
Part 3 Renumbering Part VIIIB of the Family Law Act 1975
32
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
Amendments consequential on renumbering sections of Part VIIIB
Item
Column 1
Provision
Column 2
Omit
Column 3
Substitute
15
Section 90MD (definition of
superannuation agreement)
90MH
90XH
16
Section 90MD (definition of
superannuation agreement)
90MHA
90XHA
17
Paragraph 90MG(3)(a)
90MN(3)
90XN(3)
18
Subparagraph 90MJ(1)(c)(ii)
90MI
90XI
19
Subsection 90MJ(5)
90MV
90XV
20
Paragraph 90ML(2)(a)
90MM
90XM
21
Paragraph 90ML(2)(b)
90MI
90XI
22
Subsection 90ML(4A)
90MLA
90XLA
23
Subsection 90ML(7) (note)
90MN
90XN
24
Paragraph 90MLA(1)(b)
90ML
90XL
25
Paragraph 90MLA(2)(c)
90MK
90XK
26
Subsection 90MM(1) (note)
90MH
90XH
27
Subsection 90MM(2) (note)
90MHA
90XHA
28
Paragraph 90MN(1)(b)
90MJ(1)
90XJ(1)
29
Paragraph 90MO(1)(b)
90MZA
90XZA
30
Subsection 90MO(1) (note)
90MM
90XM
31
Subsections 90MP(3), (4), (4A), (8), (9)
and (10)
90MQ
(wherever
occurring)
90XQ
32
Subsection 90MS(1) (notes 2 and 3)
90MO
90XO
33
Subsections 90MT(1) and 90MU(1)
90MS
90XS
34
Subsection 90MUA(1)
90MU(1)
90XU(1)
35
Paragraph 90MV(1)(b)
90MZA
90XZA
36
Section 90MW
90MX
90XX
37
Paragraph 90MZB(2)(b)
90MY
90XY
38
Paragraph 90MZC(c)
90MZA
90XZA
39
Paragraph 90MZD(2)(b)
90MUA
90XUA
Amendment of the Family Law Act 1975 Schedule 6
Renumbering Part VIIIB of the Family Law Act 1975 Part 3
No. , 2017
Civil Law and Justice Legislation Amendment Bill 2017
33
Division 3
--Consequential amendments of other Acts:
1
definitions
2
58 Amendments of definitions
3
The definitions in the specified provisions of the Acts listed in this
4
Division are amended as set out in the table.
5
6
Amendments consequential on renumbering sections of Part VIIIB of the
Family Law Act 1975: definitions
Item
Column 1
Definition
Column 2
Omit
Column 3
Substitute
1
paragraph (b) of the definition of base
amount
90MT(4)
90XT(4)
2
definition of family law value
90MT(2)(a)
90XT(2)(a)
3
note at the end of the definition of
family law value
90MT(1)
90XT(1)
4
paragraph (a) of the definition of
splitting percentage
90MJ(1)(c)(iii)
90XJ(1)(c)(iii)
5
paragraph (b) of the definition of
splitting percentage
90MT(1)(b)(i)
90XT(1)(b)(i)
Defence Force Retirement and Death Benefits Act 1973
7
59 Section 49A
8
Defence Forces Retirement Benefits Act 1948
9
60 Section 80A
10
Governor-General Act 1974
11
61 Subsection 2A(2)
12
Judges' Pensions Act 1968
13
62 Subsection 4(1)
14
Schedule 6 Amendment of the Family Law Act 1975
Part 3 Renumbering Part VIIIB of the Family Law Act 1975
34
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
Parliamentary Contributory Superannuation Act 1948
1
63 Section 22CA
2
Superannuation Act 1922
3
64 Section 93DA
4
Superannuation Act 1976
5
65 Section 146MA
6
Division 4
--Consequential amendments of other Acts:
7
other amendments
8
Income Tax Assessment Act 1997
9
66 Paragraph 126-140(1)(b)
10
Omit "90MZA", substitute "90XZA".
11
Superannuation (Unclaimed Money and Lost Members) Act
12
1999
13
67 Paragraph 20F(4)(b)
14
Omit "90MB(3)", substitute "90XB(3)".
15
68 Subsection 20F(4) (note 2)
16
Omit "90MB(3)", substitute "90XB(3)".
17
69 Paragraph 24E(4)(a)
18
Omit "90MB(3)", substitute "90XB(3)".
19
70 Subsection 24E(4) (note 1)
20
Omit "90MB(3)", substitute "90XB(3)".
21
Amendment of the International Arbitration Act 1974 Schedule 7
No. , 2017
Civil Law and Justice Legislation Amendment Bill 2017
35
Schedule 7--Amendment of the International
1
Arbitration Act 1974
2
3
International Arbitration Act 1974
4
1 Subsection 3(1)
5
Insert:
6
Convention on Transparency means the United Nations
7
Convention on Transparency in Treaty-based Investor-State
8
Arbitration, done at Mauritius on 10 December 2014.
9
Transparency Rules means the United Nations Commission on
10
International Trade Law Rules on Transparency in Treaty-based
11
Investor-State Arbitration.
12
2 Subsection 8(1)
13
Omit "to the arbitration agreement in pursuance of which it was made",
14
substitute "to the award".
15
3 At the end of paragraphs 8(5)(a) to (d)
16
Add "or".
17
4 Paragraph 8(5)(f)
18
Omit "to the arbitration agreement", substitute "to the award".
19
5 Application of amendments
20
The amendments of section 8 of the International Arbitration Act 1974
21
made by this Schedule apply in relation to any arbitral proceedings
22
(whether commenced before or after this item commences).
23
6 Section 18 (heading)
24
Repeal the heading, substitute:
25
18 Courts and authorities in the Model Law
26
7 At the end of section 18
27
Add:
28
Schedule 7 Amendment of the International Arbitration Act 1974
36
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
(4) The following courts are taken to be competent courts for the
1
purposes of Articles 17H (including Article 17H(3)), 27, 35 and 36
2
of the Model Law:
3
(a) if the event referred to in subsection (5) is to occur in a
4
State--the Supreme Court of that State;
5
(b) if the event referred to in subsection (5) is to occur in a
6
Territory:
7
(i) the Supreme Court of that Territory; or
8
(ii) if there is no Supreme Court established in that
9
Territory--the Supreme Court of the State or Territory
10
that has jurisdiction in relation to that Territory;
11
(c) in any case--the Federal Court of Australia.
12
(5) For the purposes of subsection (4), the event is:
13
(a) for Article 17H--the recognition or enforcement of an
14
interim measure; or
15
(b) for Article 27--the taking of evidence; or
16
(c) for Articles 35 and 36--the recognition or enforcement of an
17
arbitral award.
18
8 Application of amendments
19
The amendments of section 18 of the International Arbitration Act 1974
20
made by this Schedule apply in relation to any arbitral proceedings
21
commenced after this item commences.
22
9 Subsection 21(2)
23
Omit "arising from arbitral proceedings that commence", substitute
24
"commenced".
25
10 Subsection 22(2)
26
After "applies", insert "(subject to subsection (3))".
27
11 After subsection 22(2)
28
Insert:
29
(3) Sections 23C to 23G (disclosure of confidential information) do
30
not apply to arbitral proceedings to which the Transparency Rules
31
apply, whether those Rules apply because of the operation of the
32
Convention on Transparency or otherwise.
33
Amendment of the International Arbitration Act 1974 Schedule 7
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Civil Law and Justice Legislation Amendment Bill 2017
37
12 Application of amendments
1
The amendments of section 22 of the International Arbitration Act 1974
2
made by this Schedule apply in relation to any arbitral proceedings
3
commenced after this item commences.
4
13 Paragraph 27(2)(b)
5
Omit "tax or".
6
14 Paragraph 27(2)(c)
7
Repeal the paragraph.
8
15 After subsection 27(2)
9
Insert:
10
(2AA) In settling the amount of costs to be paid in relation to an award, an
11
arbitral tribunal is not required to use any scales or other rules used
12
by a court when making orders in relation to costs.
13
16 Subsection 27(3)
14
Omit "taxed or".
15
17 Application of amendments
16
The amendments of section 27 of the International Arbitration Act 1974
17
made by this Schedule apply in relation to arbitrations commenced after
18
this item commences.
19
Schedule 8 Amendment of the Legislation Act 2003
38
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
Schedule 8--Amendment of the Legislation
1
Act 2003
2
3
Legislation Act 2003
4
1 Paragraph 15Q(1)(c)
5
Omit ", lapses, expires or otherwise ceases to be in force".
6
2 Paragraph 15Q(2)(e)
7
Omit ", lapses, expires or otherwise ceases to be in force".
8
3 Subsection 15Q(3)
9
After "instrument is", insert "(subject to subsection (4))".
10
4 At the end of section 15Q
11
Add:
12
(4) Despite any other provision of this Act, a compilation of an Act or
13
instrument is not required to be prepared or lodged for registration
14
to take account of a retrospective commencement of an amendment
15
of the Act or instrument. However, such a compilation of an Act or
16
instrument may be prepared and lodged for registration.
17
5 Paragraph 15T(7)(a)
18
Omit ", expires, lapses or otherwise ceases to be in force".
19
6 Subsection 15U(1) (heading)
20
Repeal the heading.
21
7 Subsection 15U(1)
22
Omit "(1) The", substitute "The".
23
8 Subsection 15U(2)
24
Repeal the subsection.
25
9 Paragraph 15ZA(5)(h)
26
Before "an authorised version", insert "subject to subsection 15Q(4),".
27
Amendment of the Legislation Act 2003 Schedule 8
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Civil Law and Justice Legislation Amendment Bill 2017
39
10 Subsection 15ZB(4)
1
After "explanatory statement is", insert ", subject to
2
subsection 15Q(4),".
3
Schedule 9 Amendment of the Marriage Act 1961
40
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
Schedule 9--Amendment of the Marriage Act
1
1961
2
3
Marriage Act 1961
4
1 Subsection 5(1)
5
Insert:
6
medical practitioner has the meaning given by the Health
7
Insurance Act 1973.
8
2 Subparagraph 13(2)(a)(v)
9
Omit "legally qualified".
10
3 Section 14
11
Repeal the section, substitute:
12
14 Persons whose consent is required to the marriage of a minor
13
Before a minor may marry, consent is required from the persons
14
specified in Schedule 1 to this Act in relation to the minor.
15
4 Subparagraph 23B(1)(d)(iii)
16
Omit "is mentally incapable of understanding", substitute "did not
17
understand".
18
5 Application of amendment
19
The amendment of section 23B of the Marriage Act 1961 made by this
20
Schedule applies in relation to marriages that take place after this item
21
commences.
22
6 At the end of section 39
23
Add:
24
(4) An authorisation under subsection (2) is not a legislative
25
instrument.
26
Amendment of the Marriage Act 1961 Schedule 9
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Civil Law and Justice Legislation Amendment Bill 2017
41
7 Subsection 39B(1)
1
Omit "(1) The", substitute "The".
2
8 Subsection 39B(1)
3
After "maintain", insert "on the internet".
4
9 Subsections 39B(2) to (5)
5
Repeal the subsections.
6
10 Subparagraph 39FA(1)(a)(i)
7
After "financial year", insert "(except if paragraphs (1A)(b) and (c)
8
apply in relation to the person on that day)".
9
11 Subparagraph 39FA(1)(a)(ii)
10
Omit "and", substitute "or".
11
12 At the end of paragraph 39FA(1)(a)
12
Add:
13
(iii) is liable to pay the charge under subsection (1A); and
14
13 After subsection 39FA(1)
15
Insert:
16
Marriage celebrants appealing decision to be deregistered
17
(1A) A person is liable to pay celebrant registration charge to the
18
Commonwealth in respect of a financial year if:
19
(a) the person is a marriage celebrant on 1 July of that financial
20
year; and
21
(b) before that day:
22
(i) the Registrar decided to deregister the person as a
23
marriage celebrant; and
24
(ii) the person applied to the Administrative Appeals
25
Tribunal for review of the decision; and
26
(c) that application, or any later application to a court that relates
27
to that application, has not been finally determined by that
28
day; and
29
(d) that or any later application is finally determined in that
30
financial year; and
31
Schedule 9 Amendment of the Marriage Act 1961
42
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
(e) after the application is finally determined, the person is not
1
deregistered.
2
Notice of charge
3
14 Subsection 39FA(2)
4
Omit "is a marriage celebrant on 1 July in the financial year, or who
5
becomes a marriage celebrant on a later day in the financial year, a
6
notice", substitute "is liable to pay the celebrant registration charge in
7
respect of the financial year a written notice".
8
15 Before subsection 39FA(3)
9
Insert:
10
Exemptions
11
16 Before subsection 39FA(6)
12
Insert:
13
Charge debt due to the Commonwealth
14
17 Application of amendments
15
The amendments of section 39FA of the Marriage Act 1961 made by
16
this Schedule apply in relation to financial years beginning at the same
17
time as, or after, this item commences.
18
18 Subsection 39FB(1)
19
Repeal the subsection, substitute:
20
(1) If a person has not, by the end of the charge payment day, paid an
21
amount of celebrant registration charge that the person is liable to
22
pay, the Registrar of Marriage Celebrants must, as soon as
23
practicable after that day, send the person a written notice in
24
accordance with subsection (2), unless the Registrar considers that
25
the notice should not be sent at that time because:
26
(a) the person's liability to pay the charge may be affected by:
27
(i) the outcome of an application for internal review of a
28
decision to refuse to grant an exemption; or
29
(ii) any other circumstance of which the Registrar is aware;
30
or
31
Amendment of the Marriage Act 1961 Schedule 9
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Civil Law and Justice Legislation Amendment Bill 2017
43
(b) the person's details have been removed from the register
1
under paragraph 39I(2)(d) or 39K(a) before the notice is sent.
2
Note:
Depending on the outcome of matters referred to in paragraph (1)(a),
3
it may turn out that the person is not liable to pay the charge.
4
19 Application of amendment
5
The amendment of subsection 39FB(1) of the Marriage Act 1961 made
6
by this Schedule applies in relation to charge payment days that occur
7
on or after the day this item commences.
8
20 Paragraph 39FB(2)(a)
9
Omit "celebrant after", substitute "celebrant on".
10
21 Subsection 39FB(3)
11
Repeal the subsection, substitute:
12
(3) The person is taken to have been deregistered by the Registrar of
13
Marriage Celebrants at the start of the day specified in the notice.
14
Note:
A person who wishes to become a marriage celebrant again may
15
reapply under section 39D.
16
(4) The Registrar of Marriage Celebrants must remove the person's
17
details from the register of marriage celebrants.
18
22 Application of amendments
19
The amendments of section 39FB (except subsection 39FB(1)) of the
20
Marriage Act 1961 made by this Schedule apply in relation to notices
21
sent after this item commences.
22
23 After paragraph 39G(1)(b)
23
Insert:
24
(ba) comply with any disciplinary measures taken against the
25
marriage celebrant under section 39I; and
26
24 Application of amendment
27
Paragraph 39G(1)(ba) of the Marriage Act 1961, as inserted by this
28
Schedule, applies in relation to disciplinary measures imposed after this
29
item commences.
30
Schedule 9 Amendment of the Marriage Act 1961
44
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
25 Subparagraph 39G(1)(c)(i)
1
Omit "entered in the register in relation to the person", substitute
2
"provided by the person to the Registrar".
3
26 Application of amendment
4
The amendment of subparagraph 39G(1)(c)(i) of the Marriage Act 1961
5
made by this Schedule applies in relation to any change that occurs after
6
this item commences.
7
27 Subsection 39G(1) (note)
8
Omit "Note", substitute "Note 1".
9
28 At the end of subsection 39G(1)
10
Add:
11
Note 2:
For subparagraph (1)(c)(i), a person may notify the Registrar by
12
updating the person's details using a portal provided by the Registrar.
13
29 At the end of section 39G
14
Add:
15
(3) The regulations may specify the details that must be notified to the
16
Registrar for the purposes of subparagraph (1)(c)(i).
17
30 Subparagraph 39I(4)(a)(iv)
18
Repeal the subparagraph, substitute:
19
(iv) if the marriage celebrant has a right under section 39J to
20
apply for review of the decision--that right; and
21
31 Application of amendment
22
The amendment of subparagraph 39I(4)(a)(iv) of the Marriage Act 1961
23
made by this Schedule applies in relation to notices given after this item
24
commences (whether the decision to take the disciplinary measure was
25
made before or after that time).
26
32 Paragraph 39J(1)(c)
27
Omit "subsection 39FB(3)", substitute "section 39FB".
28
33 Subparagraph 42(2)(c)(v)
29
Omit "legally qualified".
30
Amendment of the Marriage Act 1961 Schedule 9
No. , 2017
Civil Law and Justice Legislation Amendment Bill 2017
45
34 Before Division 3 of Part V
1
Insert:
2
Division 1--Registrar of Overseas Marriages
3
60 Definitions
4
In this Part:
5
Registrar means the Registrar of Overseas Marriages appointed
6
under section 61.
7
61 Registrar of Overseas Marriages
8
(1) There is to be a Registrar of Overseas Marriages.
9
(2) The Registrar is to be appointed, by written instrument, by the
10
Minister.
11
(3) The Registrar must have a seal, which is to be in the form the
12
Minister determines.
13
62 Acting appointments
14
The Minister may, by written instrument, appoint a person to act as
15
the Registrar:
16
(a) during a vacancy in the office of the Registrar (whether or
17
not an appointment has previously been made to the office);
18
or
19
(b) during any period, or during all periods, when the Registrar:
20
(i) is absent from duty or from Australia; or
21
(ii) is, for any reason, unable to perform the duties of the
22
office.
23
Note:
For rules that apply to acting appointments, see sections 33AB and
24
33A of the Acts Interpretation Act 1901.
25
63 Register of Overseas Marriages
26
(1) The Registrar must keep a register, to be called the Register of
27
Overseas Marriages, in the form the Minister directs.
28
Schedule 9 Amendment of the Marriage Act 1961
46
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
(2) The Register of Overseas Marriages that was kept under section 8
1
of the Marriage (Overseas) Act 1955 is taken to form part of the
2
Register kept under this section.
3
(3) The Registrar must register in the Register all marriages required to
4
be registered by this Part.
5
(4) The Registrar may register in the Register:
6
(a) a marriage solemnized under the Marriage (Overseas) Act
7
1955 that has not been registered under that Act; or
8
(b) a marriage (except a marriage that has been registered under
9
the Marriage (Overseas) Act 1955) that was solemnized
10
before the commencement of this Act and in respect of which
11
a certificate has been forwarded:
12
(i) under section 25 of the Marriage (Overseas) Act 1955;
13
or
14
(ii) under section 84 of this Act.
15
(5) The Registrar must keep an index of the entries in the Register.
16
Note:
For errors or mis-statements in the Register, see section 114.
17
64 Searches and certified copies
18
(1) A person may search the register if:
19
(a) the person satisfies the Registrar that the person has a good
20
reason for searching the register; and
21
(b) the person has paid any fee prescribed by the regulations for
22
the purposes of this paragraph.
23
(2) After searching the register for an entry, the person may be given:
24
(a) a certified copy of the entry or extract of the entry; or
25
(b) if the Registrar finds that there is no such entry in the
26
register--a certificate stating that fact.
27
(3) A certified copy mentioned in paragraph (2)(a) or a certificate
28
mentioned in paragraph (2)(b):
29
(a) must be certified by the Registrar by signed writing and
30
under seal; and
31
(b) is prima facie evidence of the facts stated in the copy or
32
certificate.
33
Amendment of the Marriage Act 1961 Schedule 9
No. , 2017
Civil Law and Justice Legislation Amendment Bill 2017
47
35 Validation of things purportedly done under the Marriage
1
Act 1961
2
(1)
This item applies to a thing purportedly done under the Marriage Act
3
1961 before the commencement of this item, to the extent that the thing
4
purportedly done would, apart from this item, be invalid because:
5
(a) Division 1 of Part V of that Act, as inserted by this Schedule,
6
was not in force; and
7
(b) no person was validly appointed as the Registrar of Overseas
8
Marriages.
9
Validation
10
(2)
The thing purportedly done is as valid and effective, and is taken always
11
to have been as valid and effective, as it would have been if:
12
(a) that Division had been in force; and
13
(b) a person had been validly appointed as the Registrar of
14
Overseas Marriages.
15
36 Paragraph 115(1)(a)
16
Omit "authorised celebrants", substitute "ministers of religion registered
17
under Subdivision A of Division 1 of Part IV".
18
37 After paragraph 115(1)(a)
19
Insert:
20
(aa) a list of the persons who, or positions that, are authorised to
21
solemnise marriages under Subdivision B of Division 1 of
22
Part IV; and
23
(ab) a list of the persons who are marriage celebrants; and
24
38 Paragraph 115(1)(b)
25
After "persons who", insert ", or positions that,".
26
39 Subsections 115(2) to (4)
27
Repeal the subsections, substitute:
28
(2) A list of persons published under subsection (1) must show the
29
information set out in the following table for each person included
30
in the list.
31
32
Schedule 9 Amendment of the Marriage Act 1961
48
Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
Requirements for lists
Item
The list of persons published
under this provision ...
must show the following
information ...
1
paragraph (1)(a)
the full name, designation, address
and religious denomination of each
minister of religion registered under
Subdivision A of Division 1 of
Part IV.
2
paragraph (1)(aa)
the full name, designation (if any)
and address of each person in the list
who is authorised to solemnise
marriages under Subdivision B of
Division 1 of Part IV.
3
paragraph (1)(ab)
the information required to be
entered in the register of marriage
celebrants for the purposes of
subsection 39D(5).
4
paragraph (1)(b)
full name, designation (if any) and
address of each person in the list
who is a prescribed authority.
Inclusion of names in latest list--prima facie evidence
1
(3) The inclusion of the name of a person in the latest list published
2
under paragraph (1)(a), (aa) or (ab) is prima facie evidence that the
3
person is authorised to solemnise marriages under Division 1 of
4
Part IV.
5
(4) The inclusion of the name of a person in the latest list published
6
under paragraph (1)(b) is prima facie evidence that the person is a
7
prescribed authority.
8
Inclusion of positions in latest list--prima facie evidence
9
(5) The inclusion of a position in the latest list published under
10
paragraph (1)(aa) is prima facie evidence that a person in, or acting
11
in, the position is authorised to solemnise marriages under
12
Division 1 of Part IV.
13
(6) The inclusion of a position in the latest list published under
14
paragraph (1)(b) is prima facie evidence that a person in, or acting
15
in, the position is a prescribed authority.
16
Amendment of the Marriage Act 1961 Schedule 9
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Civil Law and Justice Legislation Amendment Bill 2017
49
40 Paragraph 116(1)(c)
1
Omit "or".
2
41 Paragraph 116(1)(d)
3
Repeal the paragraph.
4
42 The Schedule
5
Repeal the Schedule, substitute:
6
Schedule 1--Consent to the marriage of a
7
minor
8
Note:
See section 14.
9
10
11
1 Consent to the marriage of a minor
12
The following table sets out whose consent is required before a
13
minor may marry.
14
15
Persons whose consent is required
Item
If ...
then this person's consent is
required ...
1
(a) at least one parent of the minor is
alive; and
(b) there is no court order in force in
relation to parental responsibility
for the minor; and
(c) the minor does not have a
guardian as referred to in item 3
or 4 of this table
each parent.
2
there is a court order in force
granting parental responsibility for
the minor to one or more persons
(whether or not those persons are the
minor's parents)
each person who, under the order,
has (whether explicitly or implicitly)
parental responsibility for giving
consent to the minor's marriage.
3
there is a guardianship order in force
that:
(a) relates to the minor; and
(b) is made by a court, tribunal or
each guardian of the minor under the
order.
Schedule 9 Amendment of the Marriage Act 1961
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Civil Law and Justice Legislation Amendment Bill 2017
No. , 2017
Persons whose consent is required
Item
If ...
then this person's consent is
required ...
other body of a State or
Territory;
4
a person is under an Act of the
Commonwealth, a State or a
Territory, or an Ordinance of a
Territory, a guardian of the minor to
the exclusion of any other person
each guardian of the minor under the
Act or Ordinance.
5
a person is under an Act of a State or
a Territory, or an Ordinance of a
Territory, a guardian of the minor in
addition to any other person whose
consent is required in accordance
with this table
each guardian of the minor under the
Act or Ordinance and each other
person whose consent is required in
accordance with this table.
6
no other item of this table applies
a prescribed authority.
1
Amendment of the Sex Discrimination Act 1984 Schedule 10
No. , 2017
Civil Law and Justice Legislation Amendment Bill 2017
51
Schedule 10--Amendment of the Sex
1
Discrimination Act 1984
2
3
Sex Discrimination Act 1984
4
1 Section 43
5
Repeal the section.
6
2 Application of amendment
7
The amendment of the Sex Discrimination Act 1984 made by this
8
Schedule applies in relation to acts or omissions occurring after the
9
commencement of this item.
10