Civil Law and Justice Legislation Amendment Bill 2017 - Commentary on Ministerial Responses [2017] AUSStaCSBSD 144 (10 May 2017)

• Chapter 2
• Commentary on ministerial responses
• Civil Law and Justice Legislation Amendment Bill 2017
• Broad delegation of administrative powers1
• Retrospective application4

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Chapter 2

Commentary on ministerial responses

2.1 This chapter considers the responses of ministers to matters previously raised by the committee.

2.2 Correspondence relating to these matters is included at Appendix 2.

Civil Law and Justice Legislation Amendment Bill 2017

Purpose	This bill seeks to make minor and technical amendments to various pieces of civil justice legislation
Portfolio/Sponsor	Attorney-General
Introduced	22 March 2017
Bill status	Before Senate
Scrutiny principles	Standing Order 24(1)(a)(i) and (ii)

2.3 The committee dealt with this bill in Scrutiny Digest No. 4 of 2017. The Attorney-General responded to the committee's comments in a letter dated 4 May 2017. Set out below are extracts from the committee's initial scrutiny of the bill and the Attorney-General's response followed by the committee's comments on the response. A copy of the letter is at Appendix 2.

Broad delegation of administrative powers^[1]

Initial scrutiny – extract

2.4 Currently section 122A of the Family Law Act 1975 sets out the powers of entry and search for the purposes of arresting a person pursuant to that Act. The existing provision provides for any person to be authorised to exercise these coercive powers. This bill proposes inserting a new section 122A and 122AA to provide 'a more modern framework for arrests, with substantially improved safeguards'.^[2] The committee welcomes the introduction of additional safeguards regarding the exercise of these coercive powers.

2.5 Proposed paragraph 122A(1)(i) sets out who is authorised to make an arrest. In addition to persons such as a Marshal, Deputy Marshal, Sheriff or Deputy Sheriff, police officer or the Australian Border Force Commissioner, the bill provides that the power to arrest another person is conferred on 'an APS employee' in the Department of Immigration and Border Protection.

2.6 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. In relation to the exercise of coercive powers such as the power to arrest another person, use force, and enter and search premises, the committee expects the person authorised to use such powers should have received appropriate training. Where broad delegations are provided for, the committee considers that an explanation of why these are considered necessary should be included in the explanatory memorandum.

2.7 In this instance, the explanatory memorandum explains:

New subsection 122A(1) would explicitly set out the categories of persons, who are authorised by the Act or by a warrant issued under the Act to arrest another person, to whom the section applies. This would limit the persons who may exercise arrest powers to only appropriate people. This reflects the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, which provides that 'arrest powers should only be granted to sworn police officers unless there are exceptional circumstances which clearly justify extending these powers to non-police'.
The list of arresters in new subsection 122A(1) would reflect the list of authorised persons in rule 21.17 of the Family Law Rules and Rule 25B.74 of the Federal Circuit Court Rules, except that it would not provide for 'any other person' to be authorised. To ensure that all the relevant officers would be authorised to exercise arrest powers under the Act, the list would also include the Australian Border Force Commissioner and an APS employee in the Department administered by the Minister administering the Australian Border Force Act 2015. This is intended to cover Australian Border Force officers who may be required to exercise powers of arrest in relation to, for example, a parent attempting to abduct their child overseas. The urgency of ensuring children are not abducted internationally warrants the extension of these powers to officers of the Australian Border Force.^[3]

2.8 The committee is concerned that while it is intended that the reference to 'an APS employee' would only cover Australian Border Force officers who may be required to exercise powers of arrest, there is nothing in the legislation to limit it in this way. There is also nothing in the legislation that requires the relevant APS employee to have appropriate police-like training in order to exercise those powers of arrest, the use of force and search and entry powers.

2.9 The committee requests the Attorney-General's advice as to the appropriateness of enabling any APS employee within the Department of Immigration and Border Protection to exercise coercive powers and whether the bill can be amended to require a certain level of relevant training be undertaken by those APS employees authorised to exercise these coercive powers.

Attorney-General's response

2.10 The Attorney-General advised:

I note that the Committee is concerned about the broad delegation of administrative powers by the proposed new sections 122A and 122AA of the Family Law Act 1975. Specifically, my advice is requested as to:
"...the appropriateness of enabling any APS employee within the Department of Immigration and Border Protection [DIEP] to exercise coercive powers and whether the bill can be amended to require a certain level of relevant training be undertaken by those AP S employees authorised to exercise these coercive powers".
As you are aware, under the Family Law Act, where the court authorises any person to arrest another person, existing sections 122AA and 122A provide the authorised person with powers related to the use of reasonable force in making the arrest, and powers of entry and search for the purposes of arresting persons. These existing provisions apply to any person authorised by the Act, or by a warrant issued under a provision of the Act, to arrest another person.
The proposed new sections 122A and 122AA would, as well as modernising these arrest powers, narrow the classes of people who would be authorised to use reasonable force and the powers of entry and search for the purpose of arresting a person. Consultations with stakeholders confirmed the importance of retaining the ability for officers of the Australian Border Force (ABF) (which forms part of DIBP) to be authorised to use force and exercise powers of entry and search under these provisions. Maintaining these powers with ABF officers would be of particular utility in preventing international parental child abductions.
The current formulation, which refers to "an APS employee in the Department administered by the Minister administering the Australian Border Force Act 2015", would include ABF officers.
This is not a change in policy position in relation to DIBP officers. Under the existing legislation, when authorised to make an arrest by the Family Law Act, a DIBP officer may exercise the existing powers relating to use of force and entry and search. APS employees of DIBP also have other arrest powers under other legislation. While ABF officers are only a subset of the APS employees of DIBP, the Government intends to discuss with the courts practical measures (such as design of the court's precedent warrant) that could assist in limiting warrants so that they would only be addressed to ABF officers rather than all DIBP staff.
[The Committee] has also noted that the Committee expects the person authorised to use such powers should have received appropriate training. As mentioned, the power of arrest, in practical terms, would only be exercised by officers in the ABF.
Specific training in relation to the power and its limitations would be provided to those who are authorised to exercise it. Powers of arrest are already covered in a number of ABF operational training courses, with training comprising face-to-face learning with legal officers on the parameters surrounding the use of the power, discussions with experienced ABF officers who have used these powers, and practical scenarios to assess an officer's understanding of the use of the power in an operational ABF context.
The potential officers who may be authorised to execute arrests must do so under prescribed conditions. The framework attached to this power, found in proposed new section 122A, includes limits on entering premises, use of force and how the arrest must take place.

Committee comment

2.11 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that the proposed new provisions would narrow the classes of persons who would be authorised to use reasonable force and the powers of entry and search. The committee also notes the Attorney-General's advice that in practical terms the powers of arrest would only be exercised by officers in the Australian Border Force (ABF) and that the government intends to discuss with the courts, practical measures to assist in limiting warrants so they would only be addressed to ABF officers, rather than all staff employed by the Department of Immigration and Border Protection.

2.12 The committee welcomes the government's commitment to seek avenues to ensure warrants are addressed to ABF officers and not all departmental employees.

2.13 The committee requests that the key information provided by the Attorney-General be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.14 The committee reiterates its general preference that delegations of administrative power be confined to the holders of nominated offices or members of the Senior Executive Service or those with specific training or qualifications. While the committee notes the Attorney-General's advice as to who it is intended, in practical terms, will exercise the power, there is nothing on the face of the bill to limit it in this way.

2.15 The committee considers it would be appropriate if proposed paragraph 122A(1)(i) of the bill were amended to ensure that the power to use reasonable force and the powers of entry and search for the purpose of arresting a person were confined to apply to ABF officers (rather than all APS employees in the Department of Immigration and Border Protection).

Retrospective application^[4]

Initial scrutiny – extract

2.16 Schedule 7 seeks to make a number of amendments to section 8 of the International Arbitration Act 1974 to clarify that a foreign award is binding between the 'parties to the award' rather than between the 'parties to the agreement'.^[5] Item 5 provides that these amendments apply in relation to any arbitral proceedings 'whether commenced before or after this item commences'. The explanatory memorandum simply restates the provision without providing any explanation. Applying the amendments to proceedings which commenced before the commencement of the amending legislation has a retrospective application.

2.17 The committee has a long-standing scrutiny concern about provisions that have the effect of applying retrospectively, as it challenges a basic value of the rule of law that, in general, laws should only operate prospectively (not retrospectively). The committee has a particular concern if the legislation will, or might, have a detrimental effect on individuals.

1.6 Generally, where proposed legislation will have a retrospective effect the committee expects the explanatory materials should set out the reasons why retrospectivity is sought, and whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected.

2.18 The committee therefore seeks the Attorney-General's advice as to why it is proposed to apply the amendments to section 8 of the International Arbitration Act 1974 to arbitral proceedings that commenced before the commencement of this item of the bill and whether it is possible that any party to such proceedings may suffer any detriment due to this retrospective application.

Attorney-General's response

2.19 The Attorney-General advised:

The Committee has also requested that I provide advice on the potential retrospective application of the amendments to section 8 of the International Arbitration Act 1974. Specifically, my advice is requested as to:
"... why it is proposed to apply the amendments to section 8 of the International Arbitration Act 1974 to arbitral proceedings that commence before the commencement of this item to the bill, and whether it is possible that any party to such proceedings may suffer any detriment due to this retrospective application".
Arbitral proceedings are distinct from enforcement proceedings. Arbitration is a consensual dispute resolution mechanism by contractual agreement. It is binding upon the parties to a dispute to adhere to the award or final decision of the arbitral tribunal. This means that if the unsuccessful party in the arbitration (award debtor) does not voluntarily meet its contractual obligation to comply with the terms of the award, the successful party (award creditor) may need to commence proceedings, known as enforcement proceedings, seeking orders from a court to enforce the award.
This Bill would simplify the procedure for applying to a court for enforcement of an arbitral award. The application provision in question refers to arbitral proceedings commenced prior to commencement of the Bill. It does not refer to enforcement proceedings commenced prior to the commencement of the Bill. This wording was chosen to make it clear that the simplified procedure would be available in all enforcement proceedings commenced after commencement of the Bill, even where the related arbitral proceedings had commenced prior to the Bill. Proceedings for the enforcement of an existing award sometimes occur shortly after the conclusion of the arbitration, but may also be delayed by many years. Accordingly, for the benefit of the procedural reform to be realised it is important that they be available in enforcement proceedings which commence after the commencement of the Bill, -but which may relate to arbitral proceedings commenced prior to the Bill's commencement.
This effect is not a retrospective application of law. The substantive rights of the parties which are determined by the arbitral tribunal and expressed in the arbitral- award would not be impacted by this Bill. The Bill would only alter procedural aspects of enforcement proceedings which commence after the Bill, which would only come into existence once the enforcement proceedings are commenced.
To be clear, enforcement proceedings which commence prior to the commencement of the Bill would be run according to the procedural requirements of the Act in its current form. The amended provisions would not apply to enforcement proceedings which commence prior to the Bill but continue after its commencement.

Committee comment

2.20 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that the bill does not refer to enforcement proceedings commenced prior to the commencement of the bill, which would be run according to the procedural requirements of the Act in its current form. As the bill refers only to arbitral proceedings commenced prior to commencement (and not enforcement proceedings commenced prior to commencement), the advice notes that this is not a retrospective application of the law.

2.21 The committee requests that the key information provided by the Attorney-General be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.22 In light of the detailed information provided, the committee makes no further comment on this matter.

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[1] Schedule 6, item 35, proposed paragraph 122A(1)(i) of the Family Law Act 1975.

[2] Explanatory memorandum, p. 44.

[3] Explanatory memorandum, pp 44-45.

[4] Schedule 7, item 5.

[5] See explanatory memorandum, p. 59.