FEDERAL JUSTICE SYSTEM AMENDMENT (EFFICIENCY MEASURES) BILL (NO. 1) 2008

i Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 No. ,

2008

Contents

Short title ............................................................................................ 1

Commencement .................................................................................. 1

Schedule(s) ......................................................................................... 2

Schedule 1--Federal Court powers

Federal Court of Australia Act 1976

Schedule 2--International arbitration

International Arbitration Act 1974

Schedule 3--Land acquisition

Administrative Appeals Tribunal Act 1975

Family Law Act 1975

Federal Court of Australia Act 1976

Native Title Act 1993

Schedule 4--Court pre mises

Public Order (Protection of Persons and Property) Act 1971

Schedule 5--Binding financial agreements

Part 1--Financial agreements

Family Law Act 1975

Part 2--Financial matters relating to de facto relationships

Family Law Act 1975

Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 No. , 2008

A Bill for an Act to amend various Acts relating to

law and justice, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Federal Justice System Amendment

(Efficiency Measures) Act (No. 1) 2008.

2 Commence ment

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 No. ,

2008

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedules 1, 2,

3 and 4

The day on which this Act receives the

Royal Assent.

3. Schedule 5,

item 1

The later of:

(a) the start of the day after this Act receives

the Royal Assent; and

(b) immed iately after the commencement of

item 1 of Schedule 1 to the Family Law

Amendment (De Facto Financial Matters

and Other Measures) Act 2008.

4. Schedule 5,

items 2 to 8

The day after this Act receives the Royal

Assent.

5. Schedule 5,

Part 2

The later of:

(a) the start of the day after this Act receives

the Royal Assent; and

(b) immed iately after the commencement of

item 1 of Schedule 1 to the Family Law

Amendment (De Facto Financial Matters

and Other Measures) Act 2008.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Federal Court powers Schedule 1

Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 No. , 2008

Schedule 1

Federal Court powers

Federal Court of Australia Act 1976

1 Section 4

Insert:

referee means a person to whom a question is referred for inquiry

and report under section 54A.

2 After paragraph 20(5)(a)

Insert:

(aa) make an interlocutory order pending, or after, the

determination of the matter by a Full Court; or

3 Paragraph 20(5)(da)

After "paragraph", insert "(aa),".

4 After paragraph 25(2B)(aa)

Insert:

(ab) make an interlocutory order pending, or after, the

determination of an appeal to the Court; or

5 Paragraph 25(2B)(bc)

After "paragraph", insert "(ab),".

6 After section 54

Insert:

54A Referral of questions to a referee

(1) Subject to the Rules of Court, the Court may by order refer:

(a) a proceeding in the Court; or

(b) one or more questions arising in a proceeding in the Court;

to a referee for inquiry and report in accordance with the Rules of

Court.

Schedule 1 Federal Court powers

4 Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 No. ,

2008

(2) A referral under subsection (1) may be made at any stage of a

proceeding.

(3) If a report of a referee under subsection (1) is provided to the

Court, the Court may deal with the report as it thinks fit, including

by doing the following:

(a) adopting the report in whole or in part;

(b) varying the report;

(d) making such orders as the Court thinks fit in respect of any

proceeding or question referred to the referee.

54B Protection of referees

A referee has, in inquiring or reporting on a proceeding or question

referred under section 54A, the same protection and immunity as a

Judge has in performing the functions of a Judge.

7 After subsection 59(2B)

Insert:

(2C) Without limiting subsections (2), (2A) and (2B), the Rules of Court

may make provision for, or with respect to, the following matters

in relation to referrals of proceedings or questions to a referee

under section 54A:

(a) the cases in which a proceeding, or a question arising in a

proceeding, may be referred by the Court to a referee for

inquiry and report to the Court;

(b) the appointment of a Judge, the Registrar or other officer of

the Court or other person as a referee;

and reporting on a proceeding, or a question arising in a

proceeding, that has been referred to the referee;

(d) the participation (including attendance) of persons in an

inquiry by a referee;

(e) the procedures to be followed by a referee after an inquiry by

the referee has ended (whether or not a report has been

provided to the Court);

(f) the manner in which a report by a referee may be called in

question;

Federal Court powers Schedule 1

Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 No. , 2008

(g) the provision of the services of officers of the Court and the

provision of court rooms and other facilities for the purpose

of an inquiry by a referee;

(h) the fees payable to a referee;

(i) time limits to be observed by the parties to the proceeding to

which an inquiry by a referee relates, in relation to any matter

connected with the inquiry;

(j) any other matters associated with an inquiry or report by a

referee.

(2D) Without limiting subsection (2C), the Rules of Court may

empower:

(a) the Court or a referee to require that evidence be given on

oath or affirmation in an inquiry by a referee; or

(b) a referee to administer an oath or affirmation.

8 Application of amendments

The amendments made by this Schedule apply to matters commenced

before, on or after the commencement of this Schedule.

Schedule 2 International arbitration

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2008

Schedule 2

International arbitration

International Arbitration Act 1974

1 Subsection 3(1) (definition of court)

Omit all the words after "including", substitute ", but not limited to, the

Federal Court of Australia and a court of a State or Territory.".

2 After subsection 8(2)

Insert:

(3) Subject to this Part, a foreign award may, with the leave of the

Federal Court of Australia, be enforced in the Federal Court of

Australia as if the award had been made by the Federal Court of

Australia.

3 At the end of section 18

Add:

; (c) in any case--the Federal Court of Australia.

4 At the end of section 35

Add:

(3) The Federal Court of Australia is designated for the purposes of

Article 54.

(4) An award may, with the leave of the Federal Court of Australia, be

enforced in the Federal Court of Australia as if the award had been

made by the Federal Court of Australia.

Land acquisition Schedule 3

Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 No. , 2008

Schedule 3

Land acquisition

Administrative Appeals Tribunal Act 1975

1 Subsection 24A(4)

Repeal the subsection, substitute:

(4) Subsection (2) does not authorise the President to enter into a

contract under which the Commonwealth is to pay or receive an

amount exceeding $250,000 or, if a higher amount is prescribed,

that higher amount, except with the approval of the Minister.

Family Law Act 1975

2 Subsection 38A(4)

Repeal the subsection, substitute:

(4) Subsection (2) does not authorise the Chief Judge to enter into a

contract under which the Commonwealth is to pay or receive an

amount exceeding $250,000 or, if a higher amount is prescribed,

that higher amount, except with the approval of the

Attorney-General.

Federal Court of Australia Act 1976

3 Subsection 18A(4)

Repeal the subsection, substitute:

(4) Subsection (2) does not authorise the Chief Justice to enter into a

contract under which the Commonwealth is to pay or receive an

amount exceeding $250,000 or, if a higher amount is prescribed,

that higher amount, except with the approval of the

Attorney-General.

Native Title Act 1993

4 Subsection 128(4)

Repeal the subsection, substitute:

Schedule 3 Land acquisition

8 Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 No. ,

2008

(4) Subsection (2) does not authorise the President to enter into a

contract under which the Commonwealth is to pay or receive an

amount exceeding $250,000 or, if a higher amount is prescribed,

that higher amount, except with the approval of the

Commonwealth Minister.

5 Saving of regulations

(1)

Despite the repeal of a provision that is specified in column 2 of the

following table, as in force immediately before commencement,

regulations that:

(a) were made for the purposes of that provision; and

(b) were in force immediately before commencement;

continue to have effect on and after commencement as if those

regulations had been made for the purposes of the corresponding

provision, as in force after commencement, that is specified in column 3

of the table in relation to that provision:

Saving of regulations

Column 1 Column 2

Column 3

Item

Provision

Corres ponding provision

paragraph 24A(4)(b) of

the Administrative

Appeals Tribunal Act

1975

subsection 24A(4) of the

Administrative Appeals Tribunal

Act 1975

paragraph 38A(4)(b) of

the Family Law Act 1975

subsection 38A(4) of the Family

Law Act 1975

paragraph 18A(4)(b) of

the Federal Court of

Australia Act 1976

subsection 18A(4) of the Federal

Court of Australia Act 1976

paragraph 128(4)(b) of

the Native Title Act 1993

subsection 128(4) of the Native

Title Act 1993

(2)

In this item:

commencement means the commencement of this item.

Court premises Schedule 4

Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 No. , 2008

Schedule 4

Court premises

Public Order (Protection of Persons and Property) Act 1971

1 Section 13A (definition of court premises)

Repeal the definition, substitute:

court premises means:

(a) in relation to any court, including the Federal Court--any

premises occupied or used (whether permanently or

temporarily or under a lease or otherwise) in connection with

the sittings, or any other operations, of the court; and

(b) in relation to the Federal Court--premises in respect of

which a court premises order (within the meaning of

section 13AA) is in effect.

2 After section 13A

Insert:

13AA Orders relating to court pre mises in relation to the Federal

Court

(1) An authorised court official may make a written order (a court

premises order) specifying particular premises for the purposes of

paragraph (b) of the definition of court premises.

(2) An authorised court official may make a court premises order in

respect of particular premises only if the authorised court official is

satisfied that the premises are likely to be occupied or used

(whether permanently or temporarily or under a lease or otherwise)

in connection with a sitting, proceeding or any other operation, of

the Federal Court.

(3) A court premises order:

(a) must describe the premises to which it relates; and

(b) has effect:

(i) for the period specified in the order (unless it is revoked

before the end of that period); or

(ii) if no period is so specified, until it is revoked.

Schedule 4 Court premises

10 Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 No. ,

2008

Note:

Subsection 33(3) of the Acts Interpretation Act 1901 deals with

revocation.

(4) If an authorised court official makes a court premises order, the

authorised court official must give notice of the order to any person

likely to be directly affected by the order.

(5) An authorised court official may give notice of a court premises

order as required by subsection (4):

(a) by doing both of the following:

(i) ensuring that, before the premises to which the order

relates are occupied or used as mentioned in

subsection (2), a copy of the order is posted in a

prominent place in the vicinity of the premises;

(ii) ensuring that, if the premises are occupied or used for

the purposes of a sitting or proceeding, an

announcement is made at the beginning of, or during,

the sitting or proceeding describing the order and the

effect of the order; and

(b) if regulations of a kind mentioned in subsection (6) are in

force in relation to the giving of such notice--by complying

with the requirements prescribed by the regulations.

(6) The regulations may make provision for one or more of the

following in relation to the giving of notice as required by

subsection (4):

(a) the form of the notice;

(b) the manner of giving the notice;

(7) A court premises order is not a legislative instrument.

(8) In this section:

authorised court official means:

(a) the Registrar of the Federal Court; or

(b) a Federal Court officer authorised in writing by the Registrar

of the Federal Court for the purposes of this section.

Federal Court means the Federal Court of Australia.

Schedule 5 Binding financial agreements

Part 1 Financial agreements

12 Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 No. ,

2008

Schedule 5

Binding financial agreements

Part 1

Financial agreements

Family Law Act 1975

1 Subsection 4(1) (after paragraph (a) of the definition of

spouse party)

Insert:

(aa) in relation to a termination agreement referred to in

paragraph 90J(1)(b)--a party covered by paragraph (a) of

this definition in relation to the financial agreement

concerned; or

2 Paragraphs 90G(1)(b) and (c)

Repeal the paragraphs, substitute:

(b) before signing the agreement, each spouse party was

provided with:

(i) independent legal advice from a legal practitioner about

the effect of the agreement on the rights of that party

and about the advantages and disadvantages, at the time

that the advice was provided, to that party of making the

agreement; and

(ii) a signed statement by the legal practitioner stating that

this advice was given to that party; and

3 Paragraph 90G(1)(d)

Omit "court; and", substitute "court.".

4 Paragraph 90G(1)(e)

Repeal the paragraph.

5 Paragraphs 90J(2)(b) and (c)

Repeal the paragraphs, substitute:

(b) before signing the agreement, each spouse party was

provided with:

(i) independent legal advice from a legal practitioner about

the effect of the agreement on the rights of that party

Binding financial agreements Schedule 5

Financial agreements Part 1

Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 No. , 2008

and about the advantages and disadvantages, at the time

that the advice was provided, to that party of making the

agreement; and

(ii) a signed statement by the legal practitioner stating that

this advice was given to that party; and

6 Paragraph 90J(2)(d)

Omit "court; and", substitute "court.".

7 Paragraph 90J(2)(e)

Repeal the paragraph.

8 Application

(1)

The amendments made by items 2 to 7 apply in relation to financial

agreements, and termination agreements, made on or after 27 December

2000.

(2)

However, those amendments do not apply in relation to an agreement if,

before the commencement of this item, a court has made an order

setting aside the agreement.

Schedule 5 Binding financial agreements

Part 2 Financial matters relating to de facto relationships

14 Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 No. ,

2008

Part 2

Financial matters relating to de facto

relationships

Family Law Act 1975

9 Subsection 4(1) (at the end of the definition of spouse

party)

Add:

; or (c) in relation to a Part VIIIAB termination agreement--a party

covered by paragraph (b) of this definition in relation to the

Part VIIIAB financial agreement concerned.

10 Paragraphs 90UJ(1)(b) and (c)

Repeal the paragraphs, substitute:

(b) before signing the agreement, each spouse party was

provided with:

(i) independent legal advice from a legal practitioner about

the effect of the agreement on the rights of that party

and about the advantages and disadvantages, at the time

that the advice was provided, to that party of making the

agreement; and

(ii) a signed statement by the legal practitioner stating that

this advice was given to that party; and

11 Paragraph 90UJ(1)(d)

Omit "court; and", substitute "court.".

12 Paragraph 90UJ(1)(e)

Repeal the paragraph.

13 Paragraphs 90UL(2)(b) and (c)

Repeal the paragraphs, substitute:

(b) before signing the termination agreement, each spouse party

was provided with:

(i) independent legal advice from a legal practitioner about

the effect of the termination agreement on the rights of

that party and about the advantages and disadvantages,

Binding financial agreements Schedule 5

Financial matters relating to de facto relationships Part 2

Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008 No. , 2008

at the time that the advice was provided, to that party of

making the termination agreement; and

(ii) a signed statement by the legal practitioner stating that

this advice was given to that party; and

14 Paragraph 90UL(2)(d)

Omit "court; and", substitute "court.".

15 Paragraph 90UL(2)(e)

Repeal the paragraph.

16 Subsection 90UM(5)

Repeal the subsection, substitute:

(5) This subsection applies if:

(a) at least one of the spouse parties to the agreement was not

provided, before signing the agreement, with independent

legal advice from a legal practitioner about the effect of the

agreement on the rights of that party and about the

advantages and disadvantages to that party of making the

agreement; or

(b) if this advice was provided to at least one of the spouse

parties to the agreement--that party was not provided with a

signed statement by the legal practitioner stating that this

advice was given to that party;

and it would be unjust and inequitable, having regard to the eligible

agreed matters (within the meaning of section 90UE) for the

agreement, if the court does not set the agreement aside.

17 Application

(1)

The amendments made by items 10 to 15 apply in relation to

agreements made under section 90UB, 90UC or 90UD of the Family

Law Act 1975, and Part VIIIAB termination agreements, made on or

after the day on which item 1 of Schedule 1 to the Family Law

Amendment (De Facto Financial Matters and Other Measures) Act

2008 commences.

(2)

However, those amendments do not apply in relation to an agreement if,

before the commencement of this item, a court has made an order

setting aside the agreement.

Commonwealth of Australia Bills

FEDERAL JUSTICE SYSTEM AMENDMENT (EFFICIENCY MEASURES) BILL (NO. 1) 2008