Revised Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)General Outline
1. The purpose of the Civil Law and Justice Legislation Amendment Bill 2018 is to make minor and technical amendments to civil justice legislation. This would improve the operation and clarity of civil justice legislation administered by the Attorney-General.
2. The Bill is an omnibus bill which would amend the following Acts:
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- Acts Interpretation Act 1901
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- Archives Act 1983
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- Bankruptcy Act 1966
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- Domicile Act 1982
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- Evidence Act 1995
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- Family Law Act 1975
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- International Arbitration Act 1974
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- Legislation Act 2003
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- Marriage Act 1961, and
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- Sex Discrimination Act 1984.
3. The Bill would also make consequential amendments to the:
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- Defence Force Retirement and Death Benefits Act 1973
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- Defence Forces Retirement Benefits Act 1948
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- Governor-General Act 1974
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- Income Tax Assessment Act 1997
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- Judges' Pensions Act 1968
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- Parliamentary Contributory Superannuation Act 1948
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- Superannuation Act 1922
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- Superannuation Act 1976, and
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- Superannuation (Unclaimed Money and Lost Members) Act 1999.
4. Amendments to the Acts Interpretation Act 1901 and the Legislation Act 2003 would clarify the validity of Ministerial acts and the operation of provisions about the management of compilations prepared for the Federal Register of Legislation.
5. Amendments to the Archives Act 1983 would provide the National Archives of Australia with some tools to appropriately manage high volume applicants requesting access to records and make other minor technical amendments, including repealing outdated provisions that do not reflect the Archives' current services or technology advances.
6. An amendment to the Bankruptcy Act 1966 would clarify that the Family Court of Australia has bankruptcy jurisdiction when a trustee applies to have a financial agreement set aside under the Family Law Act.
7. An amendment to the Domicile Act 1982 would amend the Act so that it applies to territories currently specified in the Domicile Regulations 1982.
8. An amendment to the Evidence Act 1995 would amend the presumption about when postal articles sent by prepaid post are received, to accord with changes to Australia Post delivery times.
9. Amendments to the Family Law Act 1975 would:
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- strengthen Australia's response to international parental child abduction
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- clarify the range of persons who may perform the powers of the Registry Managers in the Family Court of Australia or any other court
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- improve the consistency of financial and other provisions for de facto and married couples
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- assist the operation of the family law courts, and
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- make minor and technical amendments, including clarifying definitions and removing redundant provisions.
10. Amendments to the International Arbitration Act 1974 would:
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- specify expressly the meaning of 'competent court' for the purpose of the Model Law
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- clarify procedural requirements for enforcement of an arbitral award
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- modernise provisions governing arbitrators' powers to award costs in international commercial arbitrations, and
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- clarify the application of confidentiality provisions to arbitration subject to the United Nations Commission on International Trade Law Rules on Transparency in Treaty-based Investor-State Arbitration.
11. Amendments to the Marriage Act 1961 would:
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- remove outdated concepts and ensure consistency with the Family Law Act in relation to parental consent for the marriage of minors
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- make technical amendments of minor policy significance to improve the operation of the Marriage Act, and
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- remedy errors and defects in existing legislation to clarify and streamline relevant provisions to ensure consistency.
12. An amendment to the Sex Discrimination Act 1984 would repeal section 43 which exempts discrimination against women in connection with employment, engagement or appointment in Australian Defence Force (ADF) positions involving combat duties.
13. The Bill was the subject of inquiry by the Senate Legal and Constitutional Affairs Legislation Committee which reported on 10 May 2017. The Senate Legal and Constitutional Affairs Legislation Committee made five recommendations in relation to the Bill, including that the Bill be passed subject to the other recommendations being implemented.
14. The Bill was also considered by the Senate Standing Committee for the Scrutiny of Bills. The Scrutiny of Bills Committee also reported on 10 May 2017 and made two recommendations in the Scrutiny Digest No.5 of 2017.
15. On 12 September 2018, the Senate agreed to amendments to respond to the issues raised by these Committees.
Financial Impact
16. There is nil financial impact associated with this Bill.