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House of Representatives

Civil Law and Justice Legislation Amendment Bill 2017

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)
This memorandum takes account of amendments made by the Senate to the bill as introduced.

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:

Acts Interpretation Act 1901
Archives Act 1983
Bankruptcy Act 1966
Domicile Act 1982
Evidence Act 1995
Family Law Act 1975
International Arbitration Act 1974
Legislation Act 2003
Marriage Act 1961, and
Sex Discrimination Act 1984.

3. The Bill would also make consequential amendments to the:

Defence Force Retirement and Death Benefits Act 1973
Defence Forces Retirement Benefits Act 1948
Governor-General Act 1974
Income Tax Assessment Act 1997
Judges' Pensions Act 1968
Parliamentary Contributory Superannuation Act 1948
Superannuation Act 1922
Superannuation Act 1976, and
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high volume applicants requesting access to records and make other minor technical amendments, including repealing outdated provisions that do not reflect the Archives' current services or technology advances.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:

strengthen Australia's response to international parental child abduction
clarify the range of persons who may perform the powers of the Registry Managers in the Family Court of Australia or any other court
improve the consistency of financial and other provisions for de facto and married couples
assist the operation of the family law courts, and
make minor and technical amendments, including clarifying definitions and removing redundant provisions.

10. Amendments to the International Arbitration Act 1974 would:

specify expressly the meaning of 'competent court' for the purpose of the Model Law
clarify procedural requirements for enforcement of an arbitral award
modernise provisions governing arbitrators' powers to award costs in international commercial arbitrations, and
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:

remove outdated concepts and ensure consistency with the Family Law Act in relation to parental consent for the marriage of minors
make technical amendments of minor policy significance to improve the operation of the Marriage Act, and
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.

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