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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
Law and
Justice Legislation Amendment Bill 1998
No.
,
1998
(Attorney-General)
A
Bill for an Act to amend various Acts relating to law and justice, and for
related purposes
ISBN: 0642
378711
Contents
A Bill for an Act to amend various Acts relating to law
and justice, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Law and Justice Legislation Amendment Act
1998.
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(2) Item 1 of Schedule 2 is taken to have commenced on 9 October 1996,
immediately after the commencement of section 2 of the Australian Law Reform
Commission (Repeal, Transitional and Miscellaneous) Act 1996.
(3) Item 2 of Schedule 2 is taken to have commenced on 1 January 1998,
immediately after the commencement of Schedule 1 to the Australian Law Reform
Commission (Repeal, Transitional and Miscellaneous) Act 1996.
(4) Schedule 4 is taken to have commenced on 16 December 1996, immediately
after the commencement of Schedule 1 to the Bankruptcy Legislation Amendment
Act 1996.
(5) Schedule 5 is taken to have commenced on 1 July 1990, immediately
after the commencement of item 21 of the Schedule to the Copyright Amendment
Act 1989.
(6) Schedule 6 is taken to have commenced on 23 June 1993, immediately
after the commencement of section 123 of the Corporate Law Reform Act
1992.
(7) Schedule 13 is taken to have commenced on 17 April 1997, immediately
after the commencement of Schedule 9 to the Law and Justice Legislation
Amendment Act 1997.
(8) Item 1 of Schedule 16 is taken to have commenced on 25 May 1997,
immediately after the commencement of item 28 of Schedule 16 to the Workplace
Relations and Other Legislation Amendment Act 1996.
(9) Item 2 of Schedule 16 is taken to have commenced on 25 May 1997,
immediately after the commencement of item 60 of Schedule 16 to the Workplace
Relations and Other Legislation Amendment Act 1996.
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Act is amended or repealed as set out in the applicable items in the Schedule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 Paragraph 49(1)(d)
Repeal the paragraph, substitute:
(d) not fewer than 3 other members or more than:
(i) unless subparagraph (ii) applies, 10 other members; or
(ii) if a higher number than 10 is prescribed by the regulations for the
purposes of this subparagraph—that higher number of members.
2 Section 50
Repeal the section, substitute:
A person is not to be appointed as a member referred to in paragraph
49(1)(d) unless he or she:
(a) has had extensive experience at a high level in industry, commerce,
public administration, industrial relations, the practice of a profession or the
service of a government or of an authority of a government; or
(b) has an extensive knowledge of administrative law or public
administration; or
(c) has had direct experience in, and has direct knowledge of, the needs
of people, or groups of people, significantly affected by decisions in respect
of which applications may be made to the Tribunal for review.
3 At the end of paragraphs 51(1)(a), (b), (c),
(e) and (f)
Add “and”.
4 Before paragraph 51(1)(a)
Insert:
(aa) to keep the Commonwealth administrative law system under review,
monitor developments in administrative law and recommend to the Minister
improvements that might be made to the system; and
(ab) to inquire into the adequacy of the procedures used by authorities of
the Commonwealth and other persons who make administrative decisions, and
consult with and advise them about those procedures, for the purpose of ensuring
that the decisions are made in a just and equitable manner; and
5 Paragraph 51(1)(d)
Repeal the paragraph, substitute:
(d) to inquire into:
(i) the qualification required for membership of authorities of the
Commonwealth, and the qualifications required by other persons, engaged in the
review of administrative decisions; and
(ii) the extent of the jurisdiction to review administrative decisions
that is conferred on those authorities and other persons; and
(iii) the adequacy of the procedures used by those authorities and other
persons in the exercise of that jurisdiction;
and to consult with and advise those authorities and other persons about
the procedures used by them as mentioned in subparagraph (iii) and recommend to
the Minister any improvements that might be made in respect of any of the
matters referred to in subparagraphs (i), (ii) and (iii); and
6 Paragraph 51(1)(g)
Repeal the paragraph, substitute:
(g) to facilitate the training of members of authorities of the
Commonwealth and other persons in making administrative decisions; and
(h) to promote knowledge about the Commonwealth administrative law system;
and
(i) to consider, and report to the Minister on, matters referred to the
Council by the Minister.
7 At the end of section 51
Add:
(3) If the Council holds an inquiry, or gives any advice, referred to in
paragraph (1)(ab), the Council must give the Minister a copy of any findings
made by the Council in the inquiry or a copy of the advice, as the case may
be.
8 After section 51
Insert:
The Minister may, by writing given to the President, give directions to
the Council in respect of the performance of its functions or the exercise of
its powers and the Council must comply with any such directions.
The Minister may, by writing given to the President, refer matters to the
Council for inquiry and report.
(1) When the Council concludes its consideration of:
(a) a matter relating to a project in respect of which the Council has
determined that a report is to be prepared; or
(b) a matter referred by the Minister to the Council for inquiry and
report;
the Council is to prepare a report on the matter and give the report to the
Minister.
(2) The Minister must cause a copy of a report so given to be laid before
each House of the Parliament within 15 sitting days of that House after the
report is received by the Minister.
9 Section 52
Omit “An appointed member”, substitute “Subject to this
section, an appointed member”.
10 At the end of section 52
Add:
(2) An instrument of appointment of a person as an appointed member may
state that the person is appointed primarily for the purpose of taking part in a
project specified in the instrument that is being, or is to be, undertaken by
the Council.
(3) If an instrument of appointment of a person contains a statement as
mentioned in subsection (2), subsection (1) does not apply to the appointment
but:
(a) the person is to be appointed for such period, not exceeding 3 years,
as is specified in the instrument of appointment; and
(b) the person is to take part in the project but has all the rights of,
and is to be treated for the purposes of this Act in all other respects as if he
or she were, a member who was not appointed primarily for the purpose of taking
part in a specified project; and
(c) the Governor-General may at any time, by writing, terminate the
appointment; and
(d) if the appointment has not ceased under paragraph (a) and has not been
terminated under paragraph (c), it ceases when the President certifies in
writing that the Council has finished the project; and
(e) when the appointment has ceased or been terminated, the person is
eligible for reappointment, whether primarily for the purpose of taking part in
the same project or another project or otherwise.
1 Subsections 2(2) and (3)
Repeal the subsections, substitute:
(2) Schedule 1 commences immediately after the Commonwealth Authorities
and Companies Act 1997 commences.
2 Items 1, 2, 3, 5, 6 and 11 of Schedule
1
Omit “1996”, substitute “1997”.
1 After section 25
Insert:
(1) If services are provided by the Protective Service at the request of a
person other than:
(a) a person holding office under the Commonwealth; or
(b) an authority (as defined by subsection 6(5)) of the Commonwealth or a
member or officer of such an authority;
the Director may charge for the services.
(2) A charge made under subsection (1) must be an amount reasonably
related to the cost of providing the relevant services.
1 Item 86 of Schedule 1
Repeal the item, substitute:
86 Subsection 20J(2)
After “prescribed” (wherever occurring), insert “by the
regulations”.
1 Paragraph (c) of item 21 of the
Schedule
Repeal the paragraph, substitute:
(c) Omit “for the making of the sound broadcast, copy, handicapped
reader’s copy or intellectually handicapped person’s
copy”.
1 Schedule 1
Omit:
Paragraph 1318(5)(c):
substitute:
Paragraph 1318(5)(c)
Repeal the paragraph, substitute:
1 Section 5 (table)
After:
Section 155 |
Official records |
insert:
Section 155A |
Commonwealth documents |
2 Section 5 (table)
Omit “Commonwealth records”, substitute “Commonwealth
records, postal articles sent by Commonwealth agencies and certain Commonwealth
documents”.
3 At the end of section 47
Add:
Note: Section 182 gives this section a wider application in
relation to Commonwealth records and certain Commonwealth
documents.
4 Paragraph 48(4)(b)
Omit “adducing oral evidence”, substitute “adducing from
a witness evidence”.
5 Section 48 (note)
Omit “Note”, substitute “Note 1”.
6 At the end of section 48
Add:
Note 2: Section 182 gives this section a wider application
in relation to Commonwealth records and certain Commonwealth
documents.
7 At the end of section 49
Add:
Note: Section 182 gives this section a wider application in
relation to Commonwealth records and certain Commonwealth
documents.
8 Paragraph 50(1)(b)
Omit “volume and complexity”, substitute “volume or
complexity”.
9 Section 51 (at the end of the
note)
Add “and certain Commonwealth documents”.
10 At the end of subsection 59(2) (before the
note)
Add:
(3) Subsection (1) does not apply to evidence of a representation
contained in a certificate or other document given or made under regulations
made under an Act other than this Act to the extent to which the regulations
provide that the certificate or other document has evidentiary effect.
11 Paragraph 63(2)(a)
Omit “oral”.
12 Paragraph 64(2)(a)
Omit “oral”.
13 Paragraph 65(8)(a)
Omit “oral”.
14 At the end of section 76 (before the
note)
Add:
(2) Subsection (1) does not apply to evidence of an opinion contained in a
certificate or other document given or made under regulations made under an Act
other than this Act to the extent to which the regulations provide that the
certificate or other document has evidentiary effect.
15 Paragraph 82(a)
Omit “orally”.
16 Section 147 (at the end of the
note)
Add “and certain Commonwealth documents”.
17 Section 149 (at the end of the
note)
Add “and certain Commonwealth documents”.
18 Section 152 (at the end of the
note)
Add “and certain Commonwealth documents”.
19 After section 155
Insert:
(1) Evidence of a Commonwealth document may be adduced by producing a
document that purports to be, or to be a copy of or extract from, the
Commonwealth document that is certified to be the Commonwealth document, or to
be a true copy or extract, as the case may be, by:
(a) a Minister; or
(b) a person who might reasonably be supposed to have custody of the
Commonwealth document.
(2) If such a document is produced, it is presumed, unless evidence that
is sufficient to raise doubt about the presumption is adduced, that:
(a) the document is the Commonwealth document, or the copy of or extract
from the Commonwealth document, that it purports to be; and
(b) the Minister or person certified the document as being the
Commonwealth document or a true copy or extract, as the case requires.
Note 1: The NSW Act has no equivalent provision for section
155A.
Note 2: Section 5 extends the application of this section to
proceedings in all Australian courts.
20 Section 160 (at the end of the
note)
Omit “Commonwealth records”, substitute “postal articles
sent by a Commonwealth agency”.
21 Subsection 163(2) (definition of
Commonwealth agency)
Repeal the definition.
22 Division 1 of Part 4.6 (at the end of the
note to the heading)
Add “and certain Commonwealth documents”.
23 Division 2 of Part 4.6 (at the end of the
note to the heading)
Add “and certain Commonwealth documents”.
24 After subsection 182(4)
Insert:
(4A) Section 160 applies in relation to postal articles sent by a
Commonwealth agency as if that section applied to the extent provided for in
section 5.
(4B) Sections 47, 48, 49, 51, 147, 149 and 152, Divisions 1 and 2 of Part
4.6 and section 183 apply in relation to a Commonwealth document that:
(a) is in the possession of a Commonwealth entity; or
(b) has been destroyed but was, immediately before its destruction, in the
possession of a Commonwealth entity or someone else to whom it had been given by
a Commonwealth entity for destruction;
as if the section or Division applied to the extent provided for in section
5.
25 Subsection 182(1)
(table)
Omit “160,”.
26 Subsection 182(1)
(table)
Omit “Postal articles, telexes”, substitute
“Telexes”.
Note: The heading to section 182 is altered by adding at the
end “, postal articles sent by Commonwealth agencies and certain
Commonwealth documents”.
27 Section 183 (at the end of the
note)
Add “and certain Commonwealth documents”.
28 Part 1 of the Dictionary at the end of the
Act
Insert:
Commonwealth agency means:
(a) a Department within the meaning of the Public Service Act 1922;
or
(b) a House of the Parliament; or
(c) a person or body holding office, or exercising power, under or because
of the Constitution or a law of the Commonwealth; or
(d) a body or organisation, whether incorporated or unincorporated,
established for a public purpose:
(i) by or under a law of the Commonwealth or of a Territory (other than
the Australian Capital Territory, the Northern Territory or Norfolk Island);
or
(ii) by the Governor-General; or
(iii) by a Minister.
29 Part 1 of the Dictionary at the end of the
Act
Insert:
Commonwealth document means:
(a) a document in the nature of a form, application, claim or return, or
any document of a similar kind, that has, in accordance with a Commonwealth law,
or in connection with the provision of money or any other benefit or advantage
by the Commonwealth, been filed or lodged with a Commonwealth entity or given or
sent (including sent by a form of electronic transmission) to a Commonwealth
entity; and
(b) any of the following documents:
(i) a report of the crew and passengers on a ship or aircraft that has
been communicated to the Australian Customs Service under section 64AC of the
Customs Act 1901;
(ii) a ship’s inward cargo adjustment report delivered to an officer
under subregulation 46(3) of the Customs Regulations;
(iii) an entry made under the Customs Act 1901 or Excise Act
1901 in relation to goods;
(iv) a form or statement given to a Collector under regulation 41 of the
Customs Regulations;
(v) a passenger card given to an officer under subregulation 3.01(3) of
the Migration Regulations;
(vi) a report referred to in section 46 of the Ozone Protection Act
1989 that has been given under that section to the Minister administering
that Act;
(vii) any other document prescribed by the regulations for the purposes of
this paragraph.
30 Part 1 of the Dictionary at the end of the
Act
Insert:
Commonwealth entity means:
(a) a Department within the meaning of the Public Service Act 1922;
or
(b) the Parliament, a House of the Parliament, a committee of a House of
the Parliament or a committee of the Parliament; or
(c) a person or body other than a Legislative Assembly holding office, or
exercising power, under or because of the Constitution or a law of the
Commonwealth; or
(d) a body or organisation other than a Legislative Assembly, whether
incorporated or unincorporated, established for a public purpose:
(i) by or under a law of the Commonwealth or of a Territory (other than
the Australian Capital Territory, the Northern Territory or Norfolk Island);
or
(ii) by the Governor-General; or
(iii) by a Minister; or
(e) any other body or organisation that is a Commonwealth owned body
corporate.
1 Subsection 25(3)
Omit “, other than an additional Judge,”.
2 At the end of section 44
Add:
(2) The Registrar may, by writing signed by him or her,
authorise:
(a) a Deputy Registrar, a District Registrar or a Deputy District
Registrar of the Court; or
(b) a member of the Staff of a Registry of the Court;
to administer oaths and affirmations for the purposes of the
Court.
3 Subsection 45(1)
Repeal the subsection, substitute:
(1) An affidavit to be used in a proceeding in the Court may be sworn
within the Commonwealth or a Territory before:
(a) a Judge of the Court, the Registrar, a Deputy Registrar, a District
Registrar, a justice of the peace, a commissioner for affidavits or a
commissioner for declarations; or
(b) a person not mentioned in paragraph (a) who is authorised to
administer oaths for the purposes of the Court or for the purposes of the High
Court or the Supreme Court of a State or Territory.
4 Subsection 60(1)
Repeal the subsection, substitute:
(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;
and, in particular, prescribing the fees to be paid in respect of
proceedings in the Court or the service or execution of the process of the Court
by officers of the Court.
1 After section 48
Insert:
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 o this Act.
1 Subsection 4(1) (after paragraph (ab) of the
definition of prior judicial service)
Insert:
(ac) service as a Judge or acting Judge of the Supreme Court of the
Australian Capital Territory;
1 Subsection 39B(1A)
Before “matter”, insert “civil”.
2 Subsection 55B(10) (definition of
federal-type jurisdiction)
Omit all the words from and including “include:”, substitute
“include jurisdiction conferred on the court under an Act providing for
the acceptance, administration or government of that
Territory.”.
3 Subsection 68(3)
After “except by”, insert “a Judge,”.
4 Application
The amendment made by item 3 applies in respect of proceedings pending at
the commencement of that item as well as proceedings instituted after that
commencement.
1 Schedule
Omit:
Members of the Tariff Board |
Commonwealth Police Officers and special Commonwealth Police
Officers |
substitute:
Members and special members of the Australian Federal Police |
1 Item 2 of Schedule 9
Omit “on the second”, substitute “the
second”.
1 Subsection 51(2A)
Omit “part”, substitute “Part”.
1 Paragraph 5B(i) (second
occurring)
Re-letter as paragraph (j).
1 Item 28 of Schedule 16
Repeal the item, substitute:
28 Section 4 (definition of judge),
subsection 6(5), sections 7, 8 and 9, subsection 15(1), sections 16, 18A, 18B,
18C, 18D, 18F, 18G, 18J, 18L, 18M, 18N, 18S, 18T, 18U, 18W, 18Y, 20, 25, 32ZF,
35, 36, 37E, 37L, 53AA and 53AB and the Schedule
Omit “Chief Judge” (wherever occurring), substitute
“Chief Justice”.
Note: The headings to sections 7 and 18W are altered by
omitting “Chief Judge” and substituting “Chief
Justice”.
2 Item 60 of Schedule 16
Omit “or of a”, substitute “or a”.