Commonwealth Numbered Acts

LAW AND JUSTICE LEGISLATION AMENDMENT ACT (No. 3) 1992 No. 165 of 1992 - SCHEDULE

                              SCHEDULE                       Section 4

AMENDMENTS OF ACTS
PART 1
Administrative Appeals Tribunal Act 1975 After section 27:
Insert: Notice of decision and review rights to be given

"27A.(1) Subject to subsection (2), a person who makes a reviewable decision
must take such steps as are reasonable in the circumstances to give to any
person whose interests are affected by the decision notice, in writing or
otherwise:

   (a)  of the making of the decision; and

   (b)  of the right of the person to have the decision reviewed.

"(2) Subsection (1) does not apply to:

   (a)  a decision that is deemed to be made because of the operation of
        subsection 25(5); or

   (b)  a decision in respect of which provision relating to the notification
        of a right of review is made by another enactment; or

   (c)  any of the following decisions:

        (i)    a decision not to impose a liability, penalty or any kind of
               limitation on a person;

        (ii)   a decision making an adjustment to the level of periodic
               payments to be made to a person as a member of a class of
               persons where a similar adjustment is being made to the level
               of such payments to the other members of the class;

        (iii)  if an enactment establishes several categories of entitlement
               to a monetary benefit - a decision that determines a person to
               be in the most favourable of those categories; if the decision
               does not adversely affect the interests of any other person; or

   (d)  a decision of the Australian Securities Commission or its delegate
        made under the Corporations Law within 6 months after the commencement
        of this section; or

   (e)  a decision of the Australian Securities Commission or its delegate
        made under the Corporations Law later than 6 months after the
        commencement of this section, if the regulations declare that
        subsection (1) does not apply to the decision.

"(3) A failure to do what this section requires does not affect the validity
of the decision.

"(4) In this section:
'reviewable decision' means:

   (a)  a decision that is reviewable by the Tribunal; or

   (b)  a decision that is reviewable by:

        (i)    a person whose decision on review is reviewable by the
               Tribunal; or

        (ii)   a person whose decision on review, because of subparagraph (i),
               is a reviewable decision. Review - Code of Practice

"27B.(1) The Attorney-General may determine, in writing, a Code of Practice
for the purpose of facilitating the operation of subsection 27A(1).

"(2) A person, in taking action under subsection 27A(1), must have regard to
any such Code of Practice that is then in force.

"(3) A Code of Practice is a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.".
Freedom of Information Act 1982 After subsection 7(2):
Insert:

"(2AA) A body corporate established by or under an Act specified in Part III
of Schedule 2 is exempt from the operation of this Act in relation to
documents in respect of the commercial activities of the body corporate.".
Subsection 7(3):
Omit "In Part II of Schedule 2", substitute "In subsection (2AA) and Part II
of Schedule 2". Subsection 7(4):
Omit "In Part II of Schedule 2", substitute "In subsection (2AA) and Part II
of Schedule 2". At the end of paragraph 12(1)(a):
Add "or". Before paragraph 12(1)(c):
Insert:

"(ba) a document that is open to public access, as part of a land title
register, in accordance with a law of a State or Territory where that access
is subject to a fee or other charge; or". Paragraph 16(3)(a):
After "Part II of Schedule 2", insert "or an agency that is a body corporate
established by or under an Act specified in Part III of Schedule 2". Paragraph
51C(3)(a):
After "Part II of Schedule 2", insert "or an agency that is a body corporate
established by or under an Act specified in Part III of Schedule 2". After
paragraph 58A(3)(b):
Add: "; and (c) on having caused a copy of the notice to be laid in the House
in which the Minister sits, read the notice to the House.". Part I of Schedule
2:
Omit the following items: "Canberra Commercial Development Authority
Superannuation Fund Investment Trust". Part II of Schedule 2:
Omit the following items: "Australian Apple and Pear Corporation, in relation
to documents in respect of its commercial activities Australian Canned Fruits
Corporation, in relation to documents in respect of its commercial activities
Australian Dairy Corporation, in relation to documents in respect of its
commercial activities Australian Dried Fruits Corporation, in relation to
documents in respect of its commercial activities Australian Honey Board, in
relation to documents in respect of its commercial activities Australian Meat
and Live-stock Corporation, in relation to documents in respect of its
commercial activities Australian Wheat Board, in relation to documents in
respect of its commercial activities Australian Wine and Brandy Corporation,
in relation to documents in respect of its commercial activities Australian
Wool Corporation, in relation to documents in respect of its commercial
activities". Part II of Schedule 2:
Insert the following items (in the appropriate alphabetical position,
determined on a letter-by-letter basis): "Attorney-General's Department, in
relation to documents in respect of commercial activities it undertakes
Australian Government Solicitor, in relation to documents in respect of its
commercial activities Australian Pork Corporation, in relation to documents in
respect of its commercial activities". After Part II of Schedule 2:
Insert in Schedule 2:

"PART III
Legislation relating to agencies exempt in respect of
documents in relation to their commercial activities
Australian Horticultural Corporation Act 1987 Australian Meat and Live-stock
Corporation Act 1977 Australian Wine and Brandy Corporation Act 1980
Australian Wool Corporation Act 1991
Australian Wool Realisation Commission Act 1991 Dairy Produce Act 1986
Fishing Industry Research and Development Act 1987 Honey Marketing Act 1988
Horticultural Research and Development Corporation Act 1987 Meat Research
Corporation Act 1985
Primary Industries and Energy Research and Development Act 1989
Rural Industries Research Act 1985 Wheat Marketing Act 1989".
Judiciary Act 1903 Section 2:
Insert: "'Australian Government Solicitor' means the Australian Government
Solicitor established by subsection 55E(1);". Subsection 40(1):
After "Attorney-General of a State" (last occurring) insert ", the
Attorney-General of the Australian Capital Territory". Subsection 55E(3):

   (a)  Omit "as solicitor".

   (b)  Omit all the words after paragraph (j) and substitute: "and, for the
        purpose of so acting:

   (k)  is entitled to practise as a barrister, solicitor, or barrister and
        solicitor, in any court, or in any State or Territory; and

   (l)  is entitled to all the rights and privileges of a barrister,
        solicitor, or barrister and solicitor, as the case may be, in that
        court, State or Territory.". Subsection 55E(8):
Omit all the words after "Government", substitute: "Solicitor:

   (a)  entitled to do all things necessary or convenient for the purpose of
        so acting; and

   (b)  entitled to:

        (i)    practise as a barrister, solicitor, or barrister and solicitor,
               in any court, or in any State or Territory; and

        (ii)   all the rights and privileges of a barrister, solicitor, or
               barrister and solicitor, as the case may be, in that court,
               State or Territory; whether or not he or she is so entitled
               apart from this subsection.". Subsection 55E(9):
Omit "as a solicitor", substitute "as a barrister, solicitor, or barrister and
solicitor,". After subsection 55E(10):
Insert:

"(10A) If the Australian Government Solicitor is acting for a person or body
('client'):

   (a)  in proceedings in any court or tribunal, or in an inquest or inquiry,
        in respect of a matter; or

   (b)  otherwise in relation to a matter; an AGS lawyer may:

   (c)  represent the client in the proceedings, inquest or inquiry; or

   (d)  through the Australian Government Solicitor, provide advice to the
        client in relation to the matter.

"(10B) For the purpose of subsection (10A), the AGS lawyer:

   (a)  is entitled to practise as a barrister, solicitor, or barrister and
        solicitor, in any court, or in any State or Territory; and

   (b)  is entitled to all the rights and privileges of a barrister,
        solicitor, or barrister and solicitor, as the case may be, in that
        court, State or Territory; whether or not he or she is so entitled
        apart from this subsection.

"(10C) Any act or thing done by an AGS lawyer under subsection (10A) is taken
to have been done by the Australian Government Solicitor.

"(10D) In spite of subsection (10C), but subject to subsection (10B), in
respect of any act or thing that is:

   (a)  in relation to a matter in a State or Territory; and

   (b)  done or omitted to be done by an AGS lawyer in the course of acting in
        relation to a client under subsection (10A); the AGS lawyer is subject
        to the duties and obligations to which he or she would be subject as
        if that act or thing had been done or omitted to be done in the course
        of practice by him or her as a barrister, solicitor, or barrister and
        solicitor, in that State or Territory.

"(10E) In this section:
'AGS lawyer' means an officer of, or an employee in, the Attorney-General's
Department:

   (a)  whose name is on a roll referred to in subsection 55D(1); and

   (b)  who ordinarily performs work for the clients of the Australian
        Government Solicitor under the supervision or control of a person who
        is authorised under subsection (4).". After section 55E:
Insert in Part VIIIA: Australian Government Solicitor may charge for services

"55F.(1) The Australian Government Solicitor ('AGS') is entitled to charge a
person or body ('client') for services rendered and for disbursements incurred
in the course of acting for the client.

"(2) The AGS may:

   (a)  charge a client an amount under subsection (1); or

   (b)  recover that amount from the client or another person; whether or not
        the client is the Commonwealth or an authority of the Commonwealth.

"(3) 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.

"(4) If an amount charged under subsection (1) is not an amount of
disbursement, then, for the following purposes:

   (a)  an application to a court or tribunal for the award of costs incurred
        by the client;

   (b)  the taxation of those costs;

   (c)  the recovery of those costs by the client; the amount charged is taken
        to have been paid by the client.". Lawyers of the Attorney-General's
        Department etc.

"55G.(1) In this section:
'Attorney-General's lawyer' means an officer of, or an employee in, the
Attorney-General's Department:

   (a)  whose name is on a roll referred to in subsection 55D(1); and

   (b)  who is not an AGS lawyer within the meaning of section 55E.

"(2) An Attorney-General's lawyer, when carrying out work of a legal
professional nature in his or her capacity as an officer of, or employee in,
the Attorney-General's Department:

   (a)  is entitled to practise as a barrister, solicitor, or barrister and
        solicitor, in any court, or in any State or Territory; and

   (b)  is entitled to all the rights and privileges of a barrister,
        solicitor, or barrister and solicitor, as the case may be, in that
        court, State or Territory; whether or not he or she is so entitled
        apart from this subsection.

"(3) Subject to subsection (2), in respect of any act or thing that is:

   (a)  in relation to a matter in a State or Territory; and

   (b)  done or omitted to be done by an Attorney-General's lawyer in the
        course of carrying out work of a legal professional nature in his or
        her capacity as an officer of, or employee in, the Attorney-General's
        Department; the Attorney-General's lawyer is subject to the duties and
        obligations to which he or she would be subject if that act or thing
        had been done or omitted to be done in the course of practice by him
        or her as a barrister, solicitor, or barrister and solicitor, in that
        State or Territory.

"(4) The Commonwealth may:

   (a)  charge a person or body:

        (i)    for services of a legal professional nature provided to the
               person or body by an Attorney-General's lawyer in his or her
               capacity as an officer of, or employee in, the
               Attorney-General's Department; and

        (ii)   for disbursements incurred in the course of providing those
               services; and

   (b)  recover that amount from that person or body.".
Jurisdiction of Courts (Cross-vesting) Act 1987 Subsection 3(1) (after
paragraph (a) of the definition of "special federal matter"):
Insert:

"(ab) a matter arising under section 60AA of the Family Law Act 1975 in a
court other than the Family Court of Western Australia or the Supreme Court of
the Northern Territory;". Section 6:
Repeal the section, substitute: Special federal matters

"6.(1) If:

   (a)  a matter for determination in a proceeding that is pending in the
        Supreme Court of a State or Territory is a special federal matter; and

   (b)  the court does not make an order under subsection (3) in respect of
        the matter; the court must transfer the proceeding in accordance with
        this section to the Federal Court or a court mentioned in paragraph
        (2)(b).

"(2) If the court orders that a proceeding be transferred, the proceeding must
be transferred:

   (a)  if the matter for determination in the proceeding is a matter
        mentioned in paragraph (a), (b), (c), (d) or (e) of the definition of
        'special federal matter' in subsection 3(1) - to the Federal Court; or

   (b)  if the matter for determination in the proceeding is a matter
        mentioned in paragraph (ab) of that definition - to whichever of the
        Family Court, the Family Court of Western Australia or the Supreme
        Court of the Northern Territory, in the opinion of the court, is
        appropriate in the circumstances.

"(3) The Supreme Court may order that the proceeding be determined by that
court if it is satisfied that there are special reasons for doing so in the
particular circumstances of the proceeding other than reasons relevant to the
convenience of the parties.

"(4) Before making an order under subsection (3), the court must be satisfied
that:

   (a)  a written notice specifying the nature of the special federal matter
        has been given to the Attorney-General of the Commonwealth and the
        Attorney-General of the State or Territory where the proceeding is
        pending; and

   (b)  a reasonable time has elapsed since the giving of the notice for the
        Attorneys-General to consider whether submissions to the court should
        be made in relation to the proceeding.

"(5) For the purposes of subsection (4), the court:

   (a)  may adjourn the proceeding for such time as the court thinks necessary
        and may make such order as to costs in relation to an adjournment as
        it thinks fit; and

   (b)  may direct a party to the proceeding to give a notice in accordance
        with that subsection.

"(6) In considering whether there are special reasons for the purposes of
subsection (3), the court must:

   (a)  have regard to the general rule that special federal matters should be
        heard by the Federal Court or a court mentioned in paragraph (2)(b),
        whichever is appropriate in the particular case; and

   (b)  take into account any submission made in relation to the proceeding by
        an Attorney-General mentioned in subsection (4).

"(7) The Attorney-General may authorise the payment by the Commonwealth to a
party of an amount in respect of costs arising out of the adjournment of a
proceeding under this section, under a corresponding provision of a law of a
State or under this section and under such a provision.

"(8) Nothing in this section prevents the court granting urgent relief of an
interlocutory nature if it is in the interests of justice to do so.

"(9) Where, through inadvertence, the Supreme Court of a State or Territory
determines a proceeding of the kind mentioned in subsection (1) without:

   (a)  the court making an order under subsection (3) that the proceeding be
        determined by that court; or

   (b)  a notice mentioned in subsection (2) being given; nothing in this
        section invalidates the decision of that court.

"(10) This section does not apply to an appeal that is instituted in the Full
Court of the Supreme Court of a State or Territory if the court whose decision
is the subject of the appeal had made an order under subsection (3), or under
subsection 6(1) as in force before the commencement of the amendments of this
Act made by the Law and Justice  Legislation Amendment Act (No. 3) 1992 , in
relation to the special federal matter.".
Privacy Amendment Act 1990 Section 18:
Repeal the section, substitute: Report following monitoring of certain
activities

"18. Section 32 of the Principal Act is amended by omitting all the words from
and including 'paragraph' to and including 'or (f)' and substituting
'paragraph 27(1)(c), (h), (j), (k), (m) or (r), 28(1)(e), (f) or (h) or
28A(1)(g), (h), (j) or (k)'.".
PART 2
Racial Discrimination Act 1975 Subsection 24(4):

   (a)  After "subsection (3)", insert "relating to a decision".

   (b)  Omit all the words after "served", substitute: "on the Commissioner:

   (a)  if paragraph (2)(a) applies - require the Commissioner to refer the
        complaint to the Commission; or

   (b)  in any other case - require the Commissioner to refer the decision to
        the President.". Subsection 24(5):
Omit "subsection (4)", substitute "paragraph (4)(a)". After subsection 24(5):
Insert:

"(5A) If the Commissioner receives a notice under paragraph (4)(b), the
Commissioner must refer the decision to the President together with a report
about the decision.

"(5B) A report for the purposes of subsection (5A) must not set out or
describe anything said or done in the course of conciliation proceedings under
this Division (including anything said or done at a conference held under this
Division).". After section 24:
Insert: President may review a decision of the Commissioner not to hold an
inquiry or to discontinue an inquiry

"24AA.(1) This section applies if a decision of the Commissioner not to
inquire into an act, or not to continue to inquire into an act, is referred to
the President under subsection 24(5A).

"(2) The President:

   (a)  must review the Commissioner's decision; and

   (b)  must decide either:

        (i)    to confirm the Commissioner's decision; or

        (ii)   to set aside the Commissioner's decision and to direct the
               Commissioner to inquire into the act, or to continue to inquire
               into the act, in accordance with section 24.

"(3) In spite of subsection (2), the President may refuse to review the
Commissioner's decision unless the complainant gives the President such
relevant information as the President requires.

"(4) The President must give written notice of a decision of the President
under paragraph (2)(b) to the complainant and to the Commissioner.

"(5) The notice must set out the reasons for the decision.

"(6) In spite of subsection 24(2), the Commissioner must comply with a
direction of the President under subparagraph (2)(b)(ii) of this section
unless the complainant notifies, or all the complainants notify, the
Commissioner that the complainant does not wish, or the complainants do not
wish, the inquiry to be held or continued. Review by President - interim
determination

"24AB.(1) This section applies if a decision of the Commissioner not to
inquire into an act, or not to continue to inquire into an act, is referred to
the President under subsection 24(5A).

"(2) If the President has not completed a review of the Commissioner's
decision, the Commission or the President may make an interim determination of
such a nature as would, if it were binding and conclusive upon the parties,
preserve:

   (a)  the status quo between the parties to the complaint; or

   (b)  the rights of the parties to the complaint; pending completion of the
        matter the subject of the complaint.

"(3) The Commission or the President may vary or revoke an interim
determination made under this section.

"(4) The functions conferred on the Commission by subsection (2) or (3) may
only be performed on an application made by the President.

"(5) The functions conferred on the President by subsection (2) or (3) may
only be performed:

   (a)  on the President's own initiative; and

   (b)  if the President thinks that it is expedient that the President should
        perform those functions.

"(6) An interim determination under this section is not binding or conclusive
between any of the parties to the determination.". Subsection 25ZA(1):
After "pursuant to" insert "section 24AB or".
Sex Discrimination Act 1984 Subsection 41(4):
Omit the subsection, substitute:

"(4) Nothing in Division 1 or 2 makes discrimination by one person (the
'insurer') against another person (the 'client') unlawful if:

   (a)  the discrimination is on the ground of the client's sex; and

   (b)  the discrimination is in the terms on which an insurance policy is
        offered to, or may be obtained by, the client; and

   (c)  the discrimination is based on actuarial or statistical data from a
        source on which it is reasonable for the insurer to rely; and

   (d)  the discrimination is reasonable having regard to the data; and

   (e)  if the client gives the insurer a written request for access to the
        data - either:

        (i)    the insurer gives the client a document containing the data; or

        (ii)   the insurer:

                (A)  makes a document containing the data available for
                     inspection by the client at such time or times, and at
                     such place or places, as are reasonable; and

                (B)  if the client inspects the document - allows the client
                     to make a copy of, or take extracts from, the document.

"(5) Paragraph (4)(e) does not apply if the Commission has, under section 44,
granted an exemption from the operation of that paragraph.

"(6) In this section:
'insurance policy' includes an annuity, a life assurance policy, an accident
insurance policy and an illness insurance policy.". Subsection 44(1):
After "Division 1 or 2, or" insert "paragraph 41(4)(e), or". Subsection 44(2):
After "Division 1 or 2" insert ", or paragraph 41(4)(e),". Subsection 44(3):
After "Division 1 or 2" insert ", or paragraph 41(4)(e)". Subsection 52(4):

   (a)  After "subsection (3)", insert "relating to a decision".

   (b)  Omit all the words after "served", substitute: "on the Commissioner:

   (a)  if paragraph (2)(a) applies - require the Commissioner to refer the
        complaint to the Commission; or

   (b)  in any other case - require the Commissioner to refer the decision to
        the President.". Subsection 52(5):
Omit "subsection (4)", substitute "paragraph (4)(a)". After subsection 52(5):
Insert:

"(5A) If the Commissioner receives a notice under paragraph (4)(b), the
Commissioner must refer the decision to the President together with a report
about the decision.

"(5B) A report for the purposes of subsection (5A) must not set out or
describe anything said or done in the course of conciliation proceedings under
this Division (including anything said or done at a conference held under this
Division).". After section 52:
Insert: President may review a decision of the Commissioner not to hold an
inquiry or to discontinue an inquiry

"52A.(1) This section applies if a decision of the Commissioner not to inquire
into an act, or not to continue to inquire into an act, is referred to the
President under subsection 52(5A).

"(2) The President:

   (a)  must review the Commissioner's decision; and

   (b)  must decide either:

        (i)    to confirm the Commissioner's decision; or

        (ii)   to set aside the Commissioner's decision and to direct the
               Commissioner to inquire into the act, or to continue to inquire
               into the act, in accordance with section 52.

"(3) In spite of subsection (2), the President may refuse to review the
Commissioner's decision unless the complainant gives the President such
relevant information as the President requires.

"(4) The President must give written notice of a decision of the President
under paragraph (2)(b) to the complainant and to the Commissioner.

"(5) The notice must set out the reasons for the decision.

"(6) In spite of subsection 52(2), the Commissioner must comply with a
direction of the President under subparagraph (2)(b)(ii) of this section
unless the complainant notifies, or all the complainants notify, the
Commissioner that the complainant does not wish, or the complainants do not
wish, the inquiry to be held or continued. Review by President - interim
determination

"52B.(1) This section applies if a decision of the Commissioner not to inquire
into an act, or not to continue to inquire into an act, is referred to the
President under subsection 52(5A).

"(2) If the President has not completed a review of the Commissioner's
decision, the Commission or the President may make an interim determination of
such a nature as would, if it were binding and conclusive upon the parties,
preserve:

   (a)  the status quo between the parties to the complaint; or

   (b)  the rights of the parties to the complaint; pending completion of the
        matter the subject of the complaint.

"(3) The Commission or the President may vary or revoke an interim
determination made under this section.

"(4) The functions conferred on the Commission by subsection (2) or (3) may
only be performed on an application made by the President.

"(5) The functions conferred on the President by subsection (2) or (3) may
only be performed:

   (a)  on the President's own initiative; and

   (b)  if the President thinks that it is expedient that the President should
        perform those functions.

"(6) An interim determination under this section is not binding or conclusive
between any of the parties to the determination.". Subsection 82(1):
After "pursuant to" insert "section 52B or". After subparagraph 92(1)(b)(i):
Insert:

"(ia) if the President decides, under subparagraph 52A(2)(b)(i), to confirm
the Commissioner's decision not to inquire into the act - written notice of
the President's decision is given to the complainant; or
(ib) if the President decides, under subparagraph 52A(2)(b)(ii), to direct the
Commissioner to inquire into the act:

                (A)  the Commissioner commences to inquire into the act; or

                (B)  the complainant notifies the Commissioner that the
                     complainant does not wish the inquiry to be held;
                     whichever is the earlier; or".
Statutory Declarations Act 1959 Section 11:
Repeal the section, substitute: False declarations

"11. A person must not wilfully make a false statement in a statutory
declaration. Penalty: Imprisonment for 4 years.".
PART 3
Sex Discrimination Act 1984 Paragraph 41(1)(d):
Omit "those data and any other relevant factors", substitute "the data".
Subsection 41(1):
Add at the end: "; and (e) if the client gives the insurer a written request
for access to the data - either:

        (i)    the insurer gives the client a document containing the data; or

        (ii)   the insurer:

                (A)  makes a document containing the data available for
                     inspection by the client at such time or times, and at
                     such place or places, as are reasonable; and

                (B)  if the client inspects the document - allows the client
                     to make a copy of, or take extracts from, the document.".
                     After subsection 41(1):
Insert:

"(1A) Paragraph (1)(e) does not apply if the Commission has, under section 44,
granted an exemption from the operation of that paragraph.". Section 44:
Omit "paragraph 41(4)(e)" (wherever occurring), substitute "paragraph
41(1)(e)". Section 87:
Omit "but for subsection 41(4)", substitute "apart from subsection 41(1)".
NOTE ABOUT SECTION HEADING 1. On the day on which this Act receives the Royal
Assent, the heading to section 14 of the Parliamentary Privileges Act 1987 is
altered by omitting "attendence" and substituting "attendance".