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This is a Bill, not an Act. For current law, see the Acts databases.
1998
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Judiciary
Amendment Bill 1998
No. ,
1998
(Attorney-General)
A
Bill for an Act to amend the Judiciary Act 1903, and for related
purposes
ISBN: 0642
37922X
Contents
Aboriginal Councils and Associations Act
1976 21
Aboriginal Land (Lake Condah and Framlingham Forest) Act
1987 21
Administrative Decisions (Judicial Review) Act
1977 21
Defence (Visiting Forces) Act
1963 21
Director of Public Prosecutions Act
1983 22
Freedom of Information Act
1982 23
Lands Acquisition Act
1989 24
Lands Acquisition (Northern Territory Pastoral Leases) Act
1981 24
National Parks and Wildlife Conservation Act
1975 24
Northern Territory (Self-Government) Act
1978 25
A Bill for an Act to amend the Judiciary Act 1903,
and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Judiciary Amendment Act
1998.
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(2) Subject to subsection (3), the items of Schedules 1, 2 and 3 commence
on a day or days to be fixed by Proclamation.
(3) If an item to which subsection (2) applies does not commence within
the period of 6 months beginning on the day on which this Act receives the Royal
Assent, it commences on the first day after the end of that period.
Subject to section 2, 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Act is amended or repealed as set out in the applicable items in the Schedule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.
1 Section 2
Insert:
AGS means the Australian Government Solicitor established
under Division 2 of Part VIIIB.
2 Section 2 (definition of Australian
Government Solicitor)
Repeal the definition.
3 Section 2
Insert:
legal practitioner means a person entitled, under an Act or a
law of a State or Territory, to practise as one of the following:
(a) a legal practitioner;
(b) a barrister;
(c) a solicitor;
(d) a barrister and solicitor.
4 Sections 55E, 55F and 55G
Repeal the sections, substitute:
(1) In this section and in sections 55F and 55G:
Attorney-General’s lawyer means a person:
(a) whose name is on a roll referred to in subsection 55D(1);
and
(b) who is either:
(i) the Secretary to the Attorney-General’s Department; or
(ii) an officer or employee in the Attorney-General’s
Department.
(2) An Attorney-General’s lawyer acting in that capacity is
entitled:
(a) to do everything necessary or convenient for that purpose;
and
(b) to practise as a barrister, solicitor, or barrister and solicitor in
any court and in any State or Territory; and
(c) to all the rights and privileges of so practising;
whether or not he or she is so entitled apart from this
subsection.
(3) An Attorney-General’s lawyer acting in that capacity in a State
or Territory is not subject to a law of a State or Territory that relates to
legal practitioners except to the extent that such laws:
(a) impose rights, duties or obligations on legal practitioners in
relation to their clients or to the courts; or
(b) provide for disciplinary proceedings in relation to the misconduct of
legal practitioners.
(4) Subsection (3) is subject to subsection (6) and to section 55F
(Attorney-General’s lawyer may act for more than one party).
(5) In considering the nature of the rights, duties and obligations of an
Attorney-General’s lawyer in relation to a client, regard must be had to
the lawyer’s position as an officer or employee in the
Attorney-General’s Department.
(6) An Attorney-General’s lawyer acting in that capacity is not
subject to a law of a State or Territory that is prescribed for the purposes of
this section.
An
Attorney-General’s lawyer may act in a matter for 2 or more parties who
have conflicting interests in the matter if to do so has been approved by the
Attorney-General:
(a) by way of approval in relation to the particular matter; or
(b) by way of written arrangements covering the circumstances in which an
Attorney-General’s lawyer may so act.
(1) The Commonwealth may charge fees:
(a) in relation to services of a legal professional nature provided by an
Attorney-General’s lawyer in his or her capacity as an officer of, or
employee in, the Attorney-General’s Department; and
(b) for disbursements incurred by the Commonwealth in the course of
providing those services.
(2) If the Commonwealth has charged a client an amount under subsection
(1), the amount may be recovered by the client as costs incurred by the
client.
5 After Part VIIIA
Insert:
In this Part, unless the contrary intention appears:
AGS lawyer means:
(a) the CEO; or
(b) an employee of the AGS whose name is on a roll referred to in
subsection 55D(1).
CEO means the Chief Executive Officer of the AGS.
company means a body corporate that is incorporated, or taken
to be incorporated, under the Corporations Law of a State.
Finance Minister means the Minister for Finance and
Administration.
State includes the Australian Capital Territory and the
Northern Territory.
Territory does not include the Australian Capital Territory
or the Northern Territory.
This Division establishes the Australian Government Solicitor.
The AGS has the following functions:
(a) to provide legal services and related services to the
Commonwealth;
(b) to provide legal services and related services to persons and bodies
for any purpose for which the Commonwealth has power to make laws;
(c) to provide legal services and related services, upon the request of
the executive government of a State or of Norfolk Island, to persons and bodies
mentioned in subsection 55N(2);
(d) to provide legal services and related services to the
Territories;
(e) to perform any function conferred on it by this Act or any other
Act;
(f) to do anything incidental to any of its functions.
(1) The AGS has power to do all things necessary or convenient to be done
for or in connection with the performance of its functions.
(2) Without limiting subsection (1), the AGS has power to do any of the
following:
(a) acquire, hold and dispose of real and personal property;
(b) form, or participate in the formation of, companies;
(c) enter into partnerships;
(d) enter into contracts, agreements or arrangements;
(e) raise money, by borrowing or otherwise;
(f) obtain goods or services on credit from any person by the use of a
credit card.
The AGS:
(a) is a body corporate; and
(b) may have a seal; and
(c) may sue and be sued.
Note: The Commonwealth Authorities and Companies Act
1997 applies to the AGS. That Act deals with matters relating to
Commonwealth authorities, including reporting and accountability, banking and
investment, and conduct of officers.
(1) In performing its functions, the AGS may provide services to the
following:
(a) the Commonwealth;
(b) a person suing or being sued on behalf of the Commonwealth;
(c) a Minister of the Commonwealth;
(d) a body established by an Act or regulations or by a law of a
Territory;
(e) an officer of, or a person employed by:
(i) the Commonwealth; or
(ii) a body established by an Act or regulations or by a law of a
Territory;
(f) a person holding office under an Act or a law of a
Territory;
(g) a member of the Defence Force;
(h) a company in which the Commonwealth has a controlling interest
(including a company in which the Commonwealth has a controlling interest
through one or more interposed Commonwealth authorities or Commonwealth
companies);
(i) a person who has at any time been a person referred to in paragraph
(c), (e), (f) or (g).
Note: For Territory see subsection
(5).
(2) In performing its functions, the AGS may provide services to the
following persons and bodies if the AGS receives a request to do so from the
executive government of the State concerned or of Norfolk Island (as the case
requires):
(a) a State or Norfolk Island;
(b) a person suing or being sued on behalf of a State or of Norfolk
Island;
(c) a Minister for a State or a member of the Government of Norfolk
Island;
(d) a body established by a law of a State or of Norfolk Island;
(e) a person employed by:
(i) a State or Norfolk Island; or
(ii) a body established by a law of a State or of Norfolk
Island;
(f) a person holding office under a law of a State or of Norfolk
Island;
(g) a company in which a State or Norfolk Island has a controlling
interest (including a company in which the State or Norfolk Island has a
controlling interest through one or more interposed State or Norfolk Island
authorities or State or Norfolk Island companies).
Note: For State see section
55I.
(3) The AGS may provide services to a person or body, or class of persons
or bodies, not referred to in subsection (1) or (2) if:
(a) the Attorney-General requests the AGS to do so; and
(b) to do so would be within the functions of the AGS.
(4) The AGS may provide services to a person or body, or class of persons
or bodies, not referred to in subsection (1) or (2) if:
(a) the CEO so determines; and
(b) to do so would be within the functions of the AGS.
(5) In this section:
Territory does not include the Australian Capital Territory,
the Northern Territory or Norfolk Island.
(1) The AGS may charge fees:
(a) in relation to services provided by it in the course of performing its
functions; and
(b) for disbursements incurred by the AGS in the course of providing those
services.
(2) If the AGS has charged a client an amount under subsection (1), the
amount may be recovered by the client as costs incurred by the client.
(1) An AGS lawyer acting in that capacity is entitled:
(a) to do everything necessary or convenient for that purpose;
and
(b) to practise as a barrister, solicitor, or barrister and solicitor in
any court and in any State or Territory; and
(c) to all the rights and privileges of so practising;
whether or not he or she is so entitled apart from this
subsection.
(2) An AGS lawyer acting in that capacity in a State or Territory is not
subject to a law of a State or Territory that relates to legal practitioners
except to the extent that such laws:
(a) impose rights, duties, or obligations on legal practitioners in
relation to their clients or to the courts; or
(b) provide for disciplinary proceedings in relation to the misconduct of
legal practitioners.
(3) Subsection (2) is subject to subsection (5) and to section 55R (AGS
may act for more than one party).
(4) In considering the nature of the rights, duties and obligations of an
AGS lawyer in relation to a client, regard must be had to the lawyer’s
position as an employee of the AGS.
(5) Neither the AGS, nor an AGS lawyer acting in that capacity, is subject
to a law of a State or Territory that is prescribed for the purposes of this
section.
The
AGS may act in a matter for 2 or more parties who have conflicting interests in
the matter if to do so has been approved by the Attorney-General:
(a) by way of approval in relation to the particular matter; or
(b) by way of written arrangements covering the circumstances in which the
AGS may so act.
(1) There is to be a Chief Executive Officer (the CEO) of
the AGS.
(2) The CEO is the director of the AGS for the purposes of the
Commonwealth Authorities and Companies Act 1997, and has the function of
managing the AGS.
(1) The CEO is to be appointed by instrument in writing signed by the
Attorney-General and the Finance Minister.
(2) The CEO must be a person whose name is on a roll referred to in
subsection 55D(1).
(3) The appointment is to be on a full-time basis.
(4) The CEO holds office for a period of up to 5 years specified in the
instrument of appointment, and is eligible for re-appointment.
(5) An appointment under this section is not affected by any defect or
irregularity in or in connection with the appointment.
(1) The CEO’s appointment is subject to any terms and conditions set
out in the instrument of appointment.
(2) The office of CEO is a principal executive office for the purposes of
the Remuneration Tribunal Act 1973.
(3) For the purposes of the Remuneration Tribunal’s function of
providing advice in relation to terms and conditions on which the CEO’s
office is held, the Tribunal is to provide the advice to the Attorney-General
and the Finance Minister instead of to the bodies referred to in paragraph
5(2)(a) of the Remuneration Tribunal Act 1973.
The CEO may resign from office by giving the Attorney-General and the
Finance Minister a signed notice of resignation.
The
Attorney-General and the Finance Minister (acting jointly) may terminate the
CEO’s appointment at any time, by instrument in writing.
(1) The CEO must give written notice to the Attorney-General and the
Finance Minister of any interest that the CEO has or acquires if the interest
could conflict with the proper performance of the CEO’s
functions.
(2) In subsection (1), interest is not limited to a
pecuniary interest.
The CEO must not, except with the approval of the Attorney-General and
the Finance Minister (acting jointly), engage in paid employment outside the
duties of the CEO’s office.
(1) The Attorney-General and the Finance Minister (acting jointly) may
appoint a person to act as CEO:
(a) if there is a vacancy in the office of CEO, whether or not an
appointment has previously been made to the office; or
(b) during any period, or during all periods, when the CEO is absent from
duty or from Australia or is, for any reason, unable to perform the duties of
the office.
(2) Anything done by or in relation to a person purporting to act under
this section is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment;
or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
The CEO may delegate to an employee of the AGS all or any of the
CEO’s powers.
(1) The CEO may, on behalf of the AGS, employ persons as staff of the
AGS.
(2) The terms and conditions of employment of staff are to be determined
by the CEO in writing.
(3) The CEO may, on behalf of the AGS, engage persons as consultants to
provide services to the AGS.
The AGS is not subject to taxation under a law of a State or Territory
other than a law prescribed for the purposes of this section.
(1) The Attorney-General and the Finance Minister (acting jointly) may
inform the CEO in writing of arrangements that are to apply to the AGS in
relation to a tax-equivalent payment to be made by the AGS to the Commonwealth
in respect of each financial year.
(2) The amount of the payment to be made under the arrangements is to be
worked out having regard to the purpose of ensuring that the AGS does not enjoy
net competitive advantages over its competitors because of:
(a) the operation of section 55ZC (exemption from State and Territory
taxation); or
(b) any other exemption from taxation liability applying to the
AGS.
(3) The
AGS must pay the amount to the Commonwealth within 4 months after the end of the
financial year concerned, unless the Attorney-General and the Finance Minister
(acting jointly) determine a period other than 4 months within which the amount,
or a specified part of the amount, must be paid.
(1) The Attorney-General and the Finance Minister (acting jointly) may,
after consultation with the CEO, inform the CEO in writing of corporate
governance arrangements that are to apply to the AGS.
(2) If so informed, the CEO must ensure that the AGS complies with the
arrangements.
(3) Without limiting subsection (1), corporate governance arrangements may
require the AGS:
(a) to pay a dividend to the Commonwealth in respect of a period specified
in the arrangements; or
(b) to make a payment of a specified amount to the Commonwealth for the
purpose of ensuring that the AGS does not enjoy net competitive advantages over
its competitors by virtue of its public sector ownership.
(4) The AGS must pay to the Commonwealth any amount required to be paid
under this section.
(1) The Attorney-General may issue directions (Legal Services
Directions):
(a) that are to apply generally to Commonwealth legal work; or
(b) that are to apply to Commonwealth legal work being performed, or to be
performed, in relation to a particular matter.
(2) The Attorney-General may publish or give notice of Legal Services
Directions in any manner the Attorney-General considers appropriate.
(3) In this section:
Commonwealth
legal work means:
(a) any work performed by or on behalf of the AGS in the performance of
its functions; or
(b) any legal work performed by a person for any of the
following:
(i) the Commonwealth;
(ii) a body established by an Act or regulations or by a law of a
Territory (other than the Australian Capital Territory, the Northern Territory
or Norfolk Island);
(iii) a company in which the Commonwealth has a controlling interest
(including a company in which the Commonwealth has a controlling interest
through one or more interposed Commonwealth authorities or Commonwealth
companies);
(iv) other persons or bodies referred to in subsection 55N(1), to the
extent that the work relates to the person’s or body’s performance
of a Commonwealth or Territory function.
(1) The following persons or bodies must comply with Legal Services
Directions that have been published and with Legal Services Directions of which
the person or body has been notified:
(a) a person or body referred to in subsection 55N(1);
(b) a person or body referred to in subsection 55N(2), in relation to a
matter, if the AGS is acting for the person or body in that matter;
(c) a person or body in respect of whom the Attorney-General has made a
request under subsection 55N(3), in relation to a matter, if the AGS is acting
for the person or the body in that matter;
(d) a person or body in respect of whom the CEO has made a determination
under subsection 55N(4), in relation to a matter, if the AGS is acting for the
person or body in that matter;
(e) the AGS;
(f) a legal practitioner or firm of legal practitioners, in relation to a
matter, if the legal practitioner or firm is acting for a person or body
referred to in subsection 55N(1) in that matter.
(2) Compliance with a Legal Services Direction is not enforceable except
by, or upon the application of, the Attorney-General.
(3) The issue of non-compliance with a Legal Services Direction may not be
raised in any proceeding (whether in a court, tribunal or other body) except by,
or on behalf of, the Commonwealth.
(1) If a Legal Services Direction requires a person to provide any
information, or produce a document or record, to another person, the person must
not refuse to comply with the Direction on the ground of legal professional
privilege or of any other duty of confidence.
(2) A person performing Commonwealth legal work (within the meaning of
subsection 55ZF(3)) may provide information or produce a document or record
relating to that work to the Attorney-General or to a person authorised by the
Attorney-General for that purpose.
(3) If:
(a) a person provides information or produces a document or record under
subsection (2); and
(b) the person would, apart from this subsection, be breaching legal
professional privilege or any other duty of confidence in so doing;
the person is taken, for all purposes, not to have breached legal
professional privilege or the duty of confidence in so providing the information
or producing the document or record.
(4) If a communication that is the subject of legal professional privilege
is disclosed under subsection (1) or (2), then, in spite of the disclosure,
privilege is taken not to have been waived in respect of the
communication.
(1) The Attorney-General is not liable to an action or other proceeding,
whether civil or criminal, for or in relation to an act done or omitted to be
done in compliance, or purported compliance, with a Legal Services
Direction.
(2) A person (other than the Attorney-General) is not liable to an action
or other proceeding, whether civil or criminal, for or in relation to an act
done or omitted to be done by the person in compliance, or in good faith in
purported compliance, with a Legal Services Direction.
1 Definitions
In this Schedule:
AGS means the Australian Government Solicitor established
under the Judiciary Act 1903.
commencement time means the time when this Schedule
commences.
former AGS means the Australian Government Solicitor
established under the Judiciary Act 1903 as in force immediately before
the commencement of Schedule 1.
2 AGS successor in law
(1) The AGS is the successor in law of the former AGS.
(2) Without limiting subitem (1), if:
(a) the former AGS was acting in relation to a matter before the
commencement time; and
(b) the matter continues after the commencement time;
the AGS is taken to be substituted for the former AGS, for all purposes, in
relation to the matter and all references to the former AGS in relation to the
matter are taken to be references to the AGS.
3 Business of former AGS
At the commencement time, the business of the former AGS becomes the
business of the AGS.
4 Attorney-General may transfer Commonwealth
assets to new AGS
(1) The Attorney-General may, by writing, make any or all of the following
declarations:
(a) a declaration that a specified asset of the Commonwealth vests in the
AGS at a specified time without any conveyance, transfer or
assignment;
(b) a declaration that a specified instrument in relation to a specified
asset continues to have effect after the asset vests in the AGS as if a
reference in the instrument to the Commonwealth were a reference to the
AGS;
(c) a declaration that the AGS becomes the Commonwealth’s successor
in law in relation to a specified asset immediately after the asset vests in the
AGS.
(2) A declaration has effect accordingly.
(3) Subitem (1) does not prevent the Commonwealth from transferring an
asset to the AGS otherwise than under that subitem.
5 Attorney-General may transfer Commonwealth
liabilities to new AGS
(1) The Attorney-General may, by writing, make any or all of the following
declarations:
(a) a declaration that a specified liability ceases to be a liability of
the Commonwealth and becomes a liability of the AGS at a specified
time;
(b) a declaration that a specified instrument relating to a specified
liability continues to have effect after the liability becomes a liability of
the AGS, as if a reference in the instrument to the Commonwealth were a
reference to the AGS;
(c) a declaration that the AGS becomes the Commonwealth’s successor
in law in relation to a specified liability immediately after the liability
becomes a liability of the AGS.
(2) A declaration has effect accordingly.
(3) Subitem (1) does not prevent the Commonwealth from transferring a
liability to the AGS otherwise than under that subitem.
6 Transfer of records
(1) The Secretary to the Attorney-General’s Department may transfer
to the AGS records of the Commonwealth that relate to the functions of the
AGS.
(2) In this item:
record has the same meaning as in the Archives Act
1983.
7 Regulations
(1) The Governor-General may make regulations prescribing
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
(2) Without limiting subitem (1), regulations may be made in relation to
transitional matters arising out of the abolition of the former AGS or otherwise
arising out of the enactment of this Act.
Aboriginal
Councils and Associations Act 1976
1 Subsection 27(5)
Omit all the words from and including “Secretary” to and
including “Judiciary Act 1903”, substitute
“Registrar”.
2 Subsection 27(5)
Omit “Secretary or by a person so authorized”, substitute
“Registrar”.
Aboriginal
Land (Lake Condah and Framlingham Forest) Act 1987
3 Subsection 10(1)
Omit all the words from and including “Secretary” to and
including “Judiciary Act 1903”, substitute “Chief
Executive Officer of the Aboriginal and Torres Strait Islander
Commission”.
4 Subsection 10(1)
Omit “Secretary or a person so authorised”, substitute
“Chief Executive Officer of the Aboriginal and Torres Strait Islander
Commission”.
Administrative
Decisions (Judicial Review) Act 1977
5 At the end of Schedule 1
Add:
; (za) decisions under Part VIIIB of the Judiciary Act 1903 (which
relates to the Australian Government Solicitor).
Defence
(Visiting Forces) Act 1963
6 Subsection 28(1)
Repeal the subsection, substitute:
(1) The Attorney-General may, in relation to a matter, or to a State,
Territory or other part of Australia, delegate in writing all or any of the
Attorney-General’s powers and functions under this Act to an officer
holding or performing the duties of a Senior Executive Service office in the
Attorney-General’s Department.
7 Subsection 28(2)
Repeal the subsection.
Director
of Public Prosecutions Act 1983
8 Paragraph 11(1)(b)
Omit “a person authorized under subsection 55E(4) of the Judiciary
Act 1903”, substitute “the Chief Executive Officer of the
Australian Government Solicitor”.
9 Paragraph 15(1)(f)
Repeal the paragraph, substitute:
(f) by the Australian Government Solicitor.
10 Subsection 15(2)
Repeal the subsection.
11 Subsection 15(3) (definition of prescribed
person)
Repeal the definition.
12 Subsection 32(1)
Omit all the words from and including “Secretary” to and
including “Judiciary Act 1903”, substitute “Chief
Executive Officer of the AGS for the AGS”.
13 Paragraph 32(1)(a)
Omit “relevant person”, substitute “AGS”.
14 Paragraph 32(1)(b)
Repeal the paragraph.
15 Subsection 32(3)
Omit all the words from and including “a person” to and
including “Department” (first occurring), substitute “the
AGS”.
16 Paragraph 32(3)(b)
Omit all the words after “arrangement” (second
occurring).
17 At the end of section 32
Add:
(4) In this section:
AGS has the meaning it has in Part VIIIB of the Judiciary
Act 1903.
Note: The heading to section 32 is altered by omitting
“Crown Solicitor” and substituting “the Australian
Government Solicitor”.
Freedom
of Information Act 1982
18 Part I of Schedule 2
Insert in its appropriate alphabetical position:
|
Australian Government Solicitor |
19 Division 1 of Part II of Schedule 2 (at the
end of the entry for the Attorney-General’s
Department)
Add “and in relation to documents in respect of commercial activities
undertaken by the Australian Government Solicitor”.
20 Division 1 of Part II of Schedule 2 (entry
for the Australian Government Solicitor)
Repeal the entry.
21 Subsections 38(1) and 51(1), subparagraphs
55(2)(e)(ii) and 65(1)(b)(ii) and subsection 123(3)
Omit all the words from and including “Secretary” to and
including “Judiciary Act 1903”, substitute “Secretary
to the Department”.
22 Section 87
Omit all the words from and including “Secretary” to and
including “Judiciary Act 1903” (wherever occurring),
substitute “Secretary to the Department”.
23 Subparagraph
87(1)(d)(ii)
Omit “or a person so authorised”.
Lands
Acquisition (Northern Territory Pastoral Leases) Act
1981
24 Subsection 9(1)
Omit all the words from and including “Secretary” to and
including “Judiciary Act 1903”, substitute “Secretary
to the Department”.
25 Subsection 9(1)
Omit “or by a person so authorized”.
National
Parks and Wildlife Conservation Act 1975
26 Section 8
Omit all the words from and including “Secretary” to and
including “Judiciary Act 1903”, substitute
“Director”.
27 Section 8
Omit “Secretary or by a person so authorized”, substitute
“Director”.
Northern
Territory (Self-Government) Act 1978
28 Subsection 70(7)
Omit all the words from and including “Secretary” to and
including “Judiciary Act 1903”, substitute “Secretary
to the Department”.
29 Subsection 70(7)
Omit “or by a person so authorized”.