Senate

Explanatory Memorandum

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

GENERAL OUTLINE

1. The purpose of the Civil Law and Justice Legislation Amendment Bill 2014 is to make minor, technical and uncontroversial amendments to civil justice legislation. This will improve the operation and clarity of civil justice legislation administered by the Attorney-General's portfolio.

2. The Bill is an omnibus bill which will amend the following Acts: the Bankruptcy Act 1966; the Copyright Act 1968; the Court Security Act 2013; the Evidence Act 1995; the Family Law Act 1975; the International Arbitration Act 1974 and the Protection of Movable Cultural Heritage Act 1986. The specific amendments are detailed below under the heading 'Notes on Clauses'.

The Bill comprises the following seven schedules:

3. Schedule 1 will make amendments to the Bankruptcy Act 1966. The purpose of the amendments in this schedule is to provide for:

•

the Official Trustee to act as a special trustee for other Government agencies

•

the Official Receiver to require a person to produce books without also having to require them to physically attend

•

support (either in the form of property or cash) given under the National Disability Insurance Scheme to not be divisible in bankruptcy

•

the offence of concealment under subsection 265(4) of the Bankruptcy Act to be expanded to ensure that it covers electronic fund transfers

•

section 267 of the Bankruptcy Act to be amended in order to provide that if a declaration is contained in a statement that was received by the Official Receiver electronically, and was purported to be made by a particular person, the declaration is presumed to have been made by the person, in the absence of evidence to the contrary

•

the distinction in the Bankruptcy Act between indictable and summary offences to be aligned with the distinction in the Crimes Act 1914 between indictable and summary offences, and

•

the locus of certain offences in the Bankruptcy Act to be clarified.

4. Schedule 2 will make amendments to the International Arbitration Act 1974. The purpose of the amendments in this schedule is to clarify the application of the Act to international commercial arbitration agreements.

5. Schedule 3 will make amendments to the Family Law Act 1975. The purpose of the amendments in this schedule is to:

•

amend section 121 of the Family Law Act to explicitly permit the provision of certain information to prescribed State and Territory child welfare authorities in order to improve information-sharing between the family law and child protection systems, and

•

make other minor, technical amendments to a number of provisions that will improve the operation of the Family Law Act by removing obsolete references, correcting errors and ensuring that consistent language is used.

6. Schedule 4 will make amendments to the Court Security Act 2013 and related amendments to the Family Law Act 1975. The purpose of the amendments in this schedule is to:

•

amend provisions relating to the variation, revocation or appeals of court security orders, and

•

provide for the retention and disposal of unclaimed items seized by or given up to court security officers.

7. Schedule 5 will make amendments to the Evidence Act 1995. The purpose of the amendments in this schedule is to:

•

mirror minor amendments to the Model Uniform Evidence Bill, as endorsed by the then Standing Committee of Attorneys-General, and relate to the mutual recognition of self-incrimination certificates and the definition of 'unavailability of persons'

•

improve the readability and usefulness of the Evidence Act by:

•

removing obsolete provisions referring to the operation of the Evidence Act to the Australian Capital Territory, and

•

replacing all existing legislative notes in the Evidence Act with a table in the Explanatory Memorandum that indicates where the Commonwealth Act differs from the uniform evidence legislation in other jurisdictions, and

•

correct drafting oversights.

8. Schedule 6 will make amendments to the Protection of Movable Cultural Heritage Act 1986. The purpose of the amendments in this schedule is to allow the continued functioning of the National Cultural Heritage Committee when membership falls below the maximum number.

9. Schedule 7 will make amendments to the Copyright Act 1968. The purpose of the amendments in this schedule is to extend the legal deposit scheme to require publishers of certain literary, dramatic, musical or artistic works in electronic form to deliver copies of their works to the National Library of Australia. The current scheme only captures hardcopy material.

FINANCIAL IMPACT STATEMENT

10. There is no financial impact associated with this Bill.

REGULATORY IMPACT STATEMENT

11. The Bill has no regulatory impact except for the amendments to the Copyright Act 1968, which result in a modest deregulatory saving as described in the Regulatory Impact Statement (Attachment A).