Senate

Civil Law and Justice (Omnibus Amendments) Bill 2015

Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Hon George Brandis QC)

Statement of compatibility with human rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Civil Law and Justice (Omnibus Amendments) Bill 2015

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

12. The Bill is an omnibus bill which will make minor, technical and uncontroversial amendments to the following Acts: the Administrative Appeals Tribunal Act 1975, the Bankruptcy Act 1966, the Evidence Act 1995, the Federal Circuit Court of Australia Act 1999, the Federal Court of Australia Act 1976 and the International Arbitration Act 1974.

13. The Bill will also make consequential amendments to the A New Tax System (Family Assistance) Act 1999, the Child Support (Registration and Collection) Act 1988, the Family Law Act 1975, the Freedom of Information Act 1982, the James Hardie (Investigations and Proceedings) Act 2004, the Paid Parental Leave Act 2010, the Proceeds of Crime Act 2002, the Public Interest Disclosure Act 2013, the Social Security (Administration) Act 1999 and the Student Assistance Act 1973.

14. Amendments to the Administrative Appeals Tribunal Act 1975 will:

ensure all persons who are parties to a review receive notice that an application for review has been made
clarify that the Tribunal may make orders that certain information is not to be disclosed to the parties
provide flexibility in prescribing the method of giving documents or things for the purposes of proceedings
enable the President to authorise any member of the Tribunal to exercise power to dismiss applications under subsection 39A(18) of the Act, and
ensure that in matters with more than one citizen party, if the applicant withdraws the application, another party may seek to have it reinstated.

15. Amendments to the Bankruptcy Act 1966 will:

clarify the confidentiality requirements relating to statements of affairs
change the requirement for a bankrupt to lodge certain requests with the Official Receiver to the Inspector-General
remove the requirement for the Inspector-General in Bankruptcy to notify the Official Receiver of certain decisions
impose time limits for applications to the court to review certain decisions of the Official Receiver, and
remove a reference to a repealed provision in section 225 of the Act.

16. Amendments to the Evidence Act 1995 will:

move the journalist privilege provisions from Division 1A of Part 3.10 to new Division 1C of Part 3.10 so that the Act accords with the Parliamentary Counsel's Committee Protocol on Drafting National Uniform Legislation.

17. Amendments to the Federal Circuit Court of Australia Act 1999 will:

provide an arrester, who is authorised by the Act, or a warrant issued under the Act or the Rules of Court, with the power to use reasonable force to enter premises to execute an arrest warrant, and
repeal an obsolete reference and improve readability of the Act.

18. Amendments to the Federal Court of Australia Act 1976 will:

streamline and enhance the jury empanelment process
enhance the pre-trial process for indictable offences, and
repeal obsolete provisions, correct legislative oversights and improve the accuracy of the Act.

19. Amendments to the International Arbitration Act 1974 will:

correct the heading of Part II to better reflect its contents,
simplify provisions for enforcement of foreign arbitral awards and improve compliance with the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards,
apply confidentiality provisions to arbitral proceedings on an opt-out rather than opt-in basis, and
repeal an obsolete section.

Human rights implications

20. The Bill engages the following human rights:

the right to an effective remedy - article 2(3) of the International Covenant on Civil and Political Rights (ICCPR)
the right to life; the right to security of the person; and the prohibition on torture and cruel, inhuman or degrading treatment or punishment - article 6 of the ICCPR; article 9 of the ICCPR; and article 7 of the ICCPR and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
the right to a fair and public hearing - article 14(1) of the ICCPR
the right to privacy - article 17(1) of the ICCPR, and
the right to freedom of opinion and expression - articles 19(1) and (2) of the ICCPR.

The right to an effective remedy

Administrative Appeals Tribunal Act 1975

21. Items 1 to 4 of Schedule 1 of the Bill will amend the Administrative Appeals Tribunal Act to provide that other people may be made a party to a review and require notification that an application has been made. The amendments also provide that a party to a proceeding, other than the applicant or the decision maker, may request the Tribunal to reinstate an application that has been dismissed.

22. Article 2(3) of the ICCPR requires the Government to ensure that, where a person's rights or freedoms are violated under the ICCPR, they have access to an effective and enforceable remedy determined by competent judicial, administrative or legislative authorities.

23. The Administrative Appeals Tribunal (the AAT) performs a critical role in the review of government decisions by performing a merits review function which is an administrative process created by statute. In reviewing administrative decisions, the role of the Tribunal is to ensure the correct or preferable decision is made based on the information before it.

24. These amendments will promote the right to an effective remedy by ensuring that persons with an interest in an AAT matter are given a reasonable opportunity to engage with the merits review process.

The right to life; the right to security of the person; and the prohibition on torture and other cruel, inhuman or degrading treatment or punishment

Federal Circuit Court of Australia Act 1999

25. Item 37 of Schedule 1 of the Bill will amend the Federal Circuit Court of Australia Act to provide an arrester, who is authorised by the Act, or a warrant issued under the Act or the Rules of Court, with the power to use such force as is necessary and reasonable in the circumstances to enter premises to execute an arrest warrant.

26. Currently, the Federal Circuit Court Rules 2001 provide that the Federal Circuit Court may issue a warrant where a respondent who is required to attend court fails to attend court on the date fixed for attendance. There is, however, uncertainty about whether reasonable force can be used to enter premises to execute an arrest warrant. This means that circumstances can arise where an arrest warrant is unable to be executed because an arrestee is inside premises. This can delay the Court process and burden the justice system.

27. The proposed amendments engage the right to security of the person in article 9 and the right to life in article 6 of the ICCPR and require the provision of reasonable measures to protect a person's physical security. They also engage the prohibition on torture and cruel, inhuman or degrading treatment or punishment in article 7 of the ICCPR and in CAT.

28. The proposed amendments seek to achieve the legitimate objective of ensuring an arrestee is able to be arrested and brought promptly before the Court in circumstances where they may otherwise attempt to evade arrest by staying inside premises.

29. The proposed new power is reasonable and proportionate to this objective. Police officers, court sheriffs and deputy court sheriffs (the arresters) will be the only persons able to exercise this power and will only be able to enter premises using such force as is necessary and reasonable in the circumstances if they reasonably believe the arrestee is on premises.

30. Moreover, new section 113A(4) of the Federal Court of Australia Act, which will be inserted by item 37 of the Bill, will provide significant safeguards to prevent arresters using more force than is necessary in the course of arresting the arrestee. For example, it will provide, among other things, that in the course of arresting the arrestee, the arrester must not:

use more force, or subject the arrestee to greater indignity, than is necessary and reasonable to make the arrest, and
must not do anything that is likely to cause the death of, or grievous bodily harm to, the arrestee unless the arrester reasonably believes that doing that thing is necessary to protect life or prevent serious injury to another person.

31. Arresters who do not adhere to the safeguards provided in this item may face criminal charges, particularly if they are found to have used more force than is reasonably necessary to make the arrest.

32. These amendments will not change the already established grounds and procedures for arrest and detention.

33. These amendments are consistent with the rights to life, security of the person and the prohibition on torture and cruel, inhuman and degrading treatment and punishment because they are aimed at the legitimate and lawful objective of bringing a person who is the subject of an arrest warrant before the Court. Furthermore, these amendments are reasonable, necessary and proportionate to the objective of achieving the efficient administration of justice.

The right to a fair and public hearing

34. Article 14(1) of the ICCPR sets out the right to a fair and public hearing and requires that that all persons are equal before courts and tribunals and that they have right to a fair and public hearing before a competent, independent and impartial court or tribunal established by law.

Administrative Appeals Tribunal Act 1975

35. As described above, items 1 to 4 of Schedule 1 of the Bill will amend the Administrative Appeals Tribunal Act to provide that other people may be made a party to a review and require notification that an application has been made. The amendments also provide that a party to a proceeding, other than the applicant or the decision maker, may request the Tribunal to reinstate an application that has been dismissed.

36. These amendments promote the right to a fair hearing by ensuring that persons with an interest in a matter are given a reasonable opportunity to engage with the Administrative Appeals Tribunal (the AAT) review process.

37. Item 2 will engage the right to a fair and public hearing by clarifying the existing power for the AAT to make orders preventing the publication or disclosure of information relating to a proceeding, to make it clear that such orders may apply to all parties to an AAT review.

38. The amendment is reasonable, necessary and proportionate. There will be strong reasons for confidentiality in respect of certain information before the Tribunal. For example, in child support reviews, there may be safety reasons why information relating to the address of one or both parties should be suppressed. Similarly, there may be national security reasons why certain information should not be disclosed to either party. The AAT's discretion to make non-disclosure orders is governed by subsection 35(5) of the AAT Act, which requires the Tribunal to balance the importance of hearings being conducted in public and that evidence or documents should be made available to the public or to all the parties, with any reasons in favour of confidentiality. This limitation ensures that the Tribunal's exercise of its non-disclosure powers is proportionate, and only exercised where necessary.

International Arbitration Act 1974

39. The International Arbitration Act is part of a global framework supporting international commercial arbitration, by providing for the conduct of arbitral proceedings, the recognition and enforcement of foreign arbitral awards, and for the judicial supervision of arbitration in over 150 countries. This framework allows parties to international arbitration agreements to resolve their disputes in a manner of their choosing, subject to the limitations of domestic and international law.

40. Items 56 to 64 of Schedule 1 of the Bill will amend the International Arbitration Act to make arbitral proceedings confidential unless parties opt out, broaden the circumstances in which enforcement of an award may be resisted, clarify mechanical aspects of the Act making it easier to use, and increase the number of countries from which arbitral awards will be recognised and enforced. It also expands the powers of domestic courts to ensure that the enforcement of awards can be resisted on the basis of incapacity of a party, fairly and by all parties.

41. Parties under the International Arbitration Act are predominantly commercial entities. However, it is possible that parties may be individuals. The amendments promote the right to a fair hearing because they seek to ensure that arbitral awards can be more broadly enforced and that all parties have equal access to grounds for resisting enforcement. These measures serve to make arbitration in Australia fairer and more efficient, promoting the right to have civil rights and obligations determined fairly and independently.

42. The amendment to make proceedings confidential unless parties opt out (as opposed to the current regime in which parties must agree that proceedings will be confidential) may limit the public nature of a hearing. However, the purpose of the amendment is to ensure that, in line with community expectations and international best practice, arbitral proceedings are confidential unless the parties agree to conduct their arbitration in another manner. The amendment is reasonable and proportionate as parties are able to opt-out of confidentiality requirements if they wish for their proceedings to be public.

The right to privacy

43. Article 17 of the ICCPR provides for the right not to be subjected to arbitrary or unlawful interference with privacy. In order for the interference with privacy not to be 'arbitrary', any interference must be reasonable in the particular circumstances. Reasonableness, in this context, incorporates notions of proportionality to the end sought and necessity in the circumstances.

Bankruptcy Act 1966

44. Under the Bankruptcy Act, a bankrupt is required to provide a statement of affairs to the Official Receiver and to the trustee. This statement outlines personal and financial information to allow the trustee to administer a bankruptcy. Parts of this statement are considered confidential and will not be made available to the public.

45. The Bill will include amendments to the Bankruptcy Act to clarify that sections 54 and 55 of the Act do not prevent disclosure of the confidential parts of a statement of affairs where disclosure is required by law. Such disclosure will include: disclosure to a government agency where required under a statutory information-gathering power, and tabling the statement at a creditor's meeting in accordance with section 64R of the Act.

46. The interference with privacy in these circumstances is not arbitrary. It is in pursuit of a legitimate objective, namely for the Official Receiver to comply with legal requirements during a bankruptcy administration. The interference is reasonable to achieving this objective as it appropriately balances the need for a bankrupt person's privacy with the requirements of disclosure by law. Further, by limiting disclosure to circumstances where such disclosure is required by law, rather than allowing for public disclosure, the interference with privacy interests of a bankrupt person is reasonable and proportionate.

Federal Circuit Court of Australia Act 1999

47. Item 37 of Schedule 1 of the Bill will amend the Federal Circuit Court of Australia Act to provide an arrester, who is authorised by the Act, or a warrant issued under the Act or the Rules of Court, with the power to use such force as is necessary and reasonable in the circumstances to enter premises to execute an arrest warrant.

48. Currently, the Federal Circuit Court Rules 2001 provides that the Federal Circuit Court may issue a warrant where a respondent who is required to attend court, fails to attend court on the date fixed for attendance. However, there is uncertainty about whether reasonable force can be used to enter premises to execute an arrest warrant. This means that circumstances can arise where an arrest warrant is unable to be executed because an arrestee is inside premises. This can delay the Court process and burden the justice system.

49. While the proposed amendments do limit the right to privacy, the amendments are aimed at the legitimate objective of ensuring an arrestee is able to be arrested and brought promptly before the Court in circumstances where they may otherwise attempt to evade arrest by staying inside premises.

50. The amendments are also reasonable and proportionate to this objective. The arresters will not be able to enter a dwelling house between 9 pm one day and 6 am the next day unless they reasonably believe that it would not be practicable to arrest the arrestee there or elsewhere at another time, for example where an arrestee is actively seeking to evade arrest (proposed subsection 113A(3)). This limitation prevents unnecessary interference with an arrestee's place of residence or dwelling, and recognises that the purpose of arresting an arrestee is to bring them before the Court, which is unlikely to be sitting between the hours of 9 pm and 6 am.

51. These amendments do not amount to an arbitrary interference with privacy because they are aimed at the legitimate and lawful objective of bringing a person who is the subject of an arrest warrant before the Court. Moreover, they are reasonable, necessary and proportionate to the objective of achieving the efficient administration of justice.

The right to freedom of opinion and expression

Administrative Appeals Tribunal Act 1975

52. Item 2 will engage the right to freedom of opinion and expression in article 19 of the ICCPR by clarifying the existing power for the Administrative Appeals Tribunal (the AAT) to make orders preventing the publication or disclosure of information relating to a proceeding, to make it clear that such orders may apply to all parties to an AAT review.

53. The amendment is reasonable, necessary and proportionate. There will be strong reasons for confidentiality in respect of certain information before the Tribunal. For example, in child support reviews, there may be safety reasons why information relating to the address of one or both parties should be suppressed. Similarly, there may be national security reasons why certain information should not be disclosed to either party.

54. The Tribunal's discretion to make non-disclosure orders is governed by subsection 35(5) of the AAT Act, which requires the Tribunal to balance the importance of hearings being conducted in public and that evidence or documents should be made available to the public or to all the parties, with any reasons in favour of confidentiality. This limitation ensures that the Tribunal's exercise of its non-disclosure powers is proportionate, and only exercised where necessary.

Conclusion

55. The Bill is compatible with human rights because it promotes rights, and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.


View full documentView full documentBack to top