House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Mark Dreyfus KC MP)

GENERAL OUTLINE

1. The purpose of this Bill is to:

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confer jurisdiction on the Federal Court of Australia (Federal Court) to hear and determine a range of summary and indictable offences relating to conduct within the regulatory remit of the Australian Securities and Investments Commission (ASIC) (Schedule 1);

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enable the Sheriff of the Federal Court (Sheriff) to request a State/Territory jury official to prepare and provide a jury panel for use by the Federal Court (Schedule 2);

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make minor amendments to the Marriage Act 1961 (Marriage Act) to clarify and improve the operation of the Commonwealth Marriage Celebrants Program and provide greater accessibility for marrying couples (Schedule 3); and

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make minor and technical amendments to update, clarify and improve the intended operation of other legislation administered by the Attorney-General's portfolio (Schedule 4).

2. This Bill is an omnibus bill which amends the:

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Australian Securities and Investments Commission Act 2001 (ASIC Act);

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Corporations Act 2001 (Corporations Act);

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Family Law Act 1975;

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Federal Circuit and Family Court of Australia Act 2021 (FCFCOA Act);

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Federal Court of Australia Act 1976 (Federal Court Act);

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Judiciary Act 1903 (Judiciary Act);

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Marriage Act;

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National Consumer Credit Protection Act 2009 (NCCP Act);

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Native Title Act 1993 (Native Title Act); and

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Superannuation Industry (Supervision) Act 1993 (SIS Act).

Schedule 1—Federal Court criminal jurisdiction

3. Schedule 1 comprises two parts:

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Part 1 will confer jurisdiction on the Federal Court to hear and determine a range of indictable and summary offences relating to conduct within the regulatory remit of the ASIC.

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Part 2 will make technical and procedural amendments to several Acts to support the exercise of jurisdiction within the scope of part 1, by the Federal Court and State and Territory courts.

Part 1—Conferral of criminal jurisdiction

4. This part will amend the ASIC Act, Corporations Act, Judiciary Act, NCCP Act and SIS Act to confer jurisdiction on the Federal Court to hear and determine a range of summary and indictable offences relating to entities and conduct against those Acts, and the Criminal Code, within the regulatory remit of ASIC.

5. The Federal Court has considerable expertise in civil commercial and corporate matters and is well positioned to deal with matters under this corporate criminal jurisdiction. The Federal Court has existing criminal jurisdiction for cartel offences against the Competition and Consumer Act 2010 (Competition and Consumer Act). In addition to the Federal Court's existing criminal jurisdiction, it already has jurisdiction to deal with a number of civil penalty provisions under the Acts being amended which share the same or similar elements to related criminal offences.

6. The new jurisdiction of the Federal Court will operate concurrently with the existing jurisdiction of State and Territory courts in relation to these offences. The Bill makes no changes to the jurisdiction of State and Territory courts. Matters will be able to be transferred between courts to ensure proceedings can be heard across the Australian court system and in the most appropriate forum.

Part 2—Criminal procedure

7. This part will make minor technical and procedural amendments to the Corporations Act, Federal Court Act, Judiciary Act and NCCP Act, to support the exercise of jurisdiction within the scope of part 1, by the Federal Court, and State and Territory courts.

8. Nothing in the Bill will impact the existing arrangements with respect to costs arising from criminal proceedings. The Federal Court is not empowered to order costs with respect to indictable offence proceedings. This is consistent with the traditional position that the Crown neither pays nor recovers costs in indictable criminal proceedings. Other costs provisions or laws may apply to criminal proceedings in the Federal Court, such as the Federal Proceedings (Costs) Act 1981 and legal aid provisions in Commonwealth, or State or Territory law.

Schedule 2—Federal Court juries

9. This schedule will amend the Federal Court Act, to improve the efficiency of jury preparation processes for primary indictable proceedings in the Federal Court by enabling the Sheriff to request a State/Territory jury official, with the consent of the relevant State or Territory, to prepare and provide a jury panel to the Sheriff.

Schedule 3—Amendment of the Marriage Act 1961

10. The Marriage Act establishes the legal framework for marriage in Australia, including the requirements for marriages to be validly solemnised under Australian law. This includes a requirement that marriages must be solemnised by an 'authorised celebrant'. The Marriage Act establishes the position of 'Registrar of Marriage Celebrants' (section 39A of the Marriage Act). The Registrar of Marriage Celebrants is required to maintain the public register of marriage celebrants (section 39B of the Marriage Act), and is responsible for administering the Marriage Celebrants Program. The Registrar of Marriage Celebrants registers and regulates marriage celebrants.

11. The Bill will make minor technical amendments to clarify and improve the operation of the Commonwealth Marriage Celebrants Program and provides greater accessibility for marrying couples.

12. Marrying couples in Australia are required to provide a Notice of Intended Marriage (NOIM) to their authorised celebrant at least one month before the marriage is solemnised. The Marriage Act currently requires the NOIM to be completed and signed 'in the presence of' an authorised witness before it is given to the marriage celebrant, at which point the minimum one month notice period commences. The Bill will make amendments affecting the NOIM to ensure that it reflects the way that marrying couples and authorised marriage celebrants want to engage and making marriage more accessible.

The Notice of Intended Marriage

13. In addition to the witnessing of a NOIM in-person, the Bill will amend the Marriage Act to provide the option to have the NOIM witnessed remotely, via video link or audio-visual link. The current requirements regarding witnessing, as set out in section 42 of the Marriage Act, require that the NOIM must be signed by the parties getting married in the physical presence of the authorised witness as specified in paragraphs 42(2)(c)–(d) of the Marriage Act. The type of authorised witness varies depending if a person is signing the NOIM in Australia or overseas. The requirements for authorised witnesses will remain unchanged and location-dependent. The option to remotely witness the signing of the NOIM by the parties to the marriage whether in Australia or overseas, will apply to all authorised witnesses regardless of their location.

14. In response to the COVID-19 pandemic, temporary measures were put in place to enable couples to sign their NOIM remotely to allow them to marry during this time. The most recent instrument, the Coronavirus Economic Response Package (Modifications—Statutory Declarations and Notices of Intention to Marry) Determination 2021 (the Determination), allows a NOIM to be signed and witnessed 'under the observation' of an authorised witness using electronic means, a video link or audio-visual link between persons in different places. The Determination is due to end after 31 December 2023.

15. The Bill will amend paragraphs 42(2)(c) (authorised witnesses in Australia) and (d) (authorised witnesses overseas) of the Marriage Act to enable an authorised witness to remotely witness the signing of the NOIM by the parties to the marriage.

16. The option to sign under the 'observation of an authorised witness' will be in addition to the ability to sign the NOIM in the presence of an authorised witness. The requirements for each option are functionally equivalent, meaning that each method of making a NOIM produces an equally valid and legally robust document. This item will not remove or modify the other requirements for the giving of a NOIM under the Marriage Act. The addition of this option, will ensure marriage remains accessible, especially for those in rural, regional and remote communities.

17. The Bill will require an authorised celebrant to physically meet separately with each party to the marriage before the marriage is solemnised. This provides an additional safeguard, where the NOIM is remotely witnessed, or witnessed by an authorised person other than a celebrant. The purpose of the meeting is to ensure that each party is freely and voluntarily consenting to the marriage; this can occur at any time up to and including on the day the marriage is solemnised. It is anticipated that this new requirement will generally have minimal impact, given the majority of celebrants already meet personally with each marrying couple before solemnisation of the marriage and must in any case be physically present with the couple on the day of the marriage. Arrangements for the pre-solemnisation independent meetings with the parties, will be for those involved to determine as convenient.

18. The Bill will also extend the reasons for when a NOIM can be transferred to another authorised celebrant, to include the request of the marrying couple. The current reasons are limited to death, absence or illness of the celebrant or where it is otherwise impracticable to solemnise the marriage.

Changes to the Marriage Celebrants Program

19. The Bill will introduce a number of operational measures to improve the experiences of marrying couples and celebrants, and assist the efficiency of the administration of the Marriage Celebrants Program.

20. The Bill will clarify that a marriage must be solemnised in the 'physical presence' of an authorised celebrant and two witnesses. The word 'presence' is not currently defined in the Marriage Act. The requirement that a marriage be solemnised in the physical presence of a celebrant is to ensure the requirements of a legally valid marriage have been met. This includes ensuring the parties understand and give real consent to the marriage, and that they receive, sign and provide the required marriage documentation, necessary at the time of the ceremony.

21. The Bill will also clarify that the three categories of authorised celebrants in Australia (Ministers of Religion of recognised denominations (subdivision A), State and Territory Officers (subdivision B), and Commonwealth-registered civil/religious celebrants (subdivision C)) cannot be registered in more than one Subdivision at the same time. This is intended to ensure celebrants and regulators have clear and unambiguous obligations, which will better support legal marriage, and remove risks, administrative complexity and costs associated with individual celebrants being authorised under multiple regulatory regimes. Commonwealth registered marriage celebrants will retain the choice to identify as religious marriage celebrants.

22. The Bill will clarify the identity requirements in respect of giving a NOIM. Currently, the Marriage Act states that a party can provide a statutory declaration where an official certificate or official extract of an entry in an official register is not able to be produced. The Bill will clarify that a Commonwealth Statutory Declaration should only be used as evidence of date and place of birth, where a party does not have a passport or it is practically impossible to obtain an official certificate or official extract of an entry in an official register, showing the date and place of birth of a party. It is not considered practically impossible for a party born in Australia to obtain an official certificate, such as a birth certificate which records date and place of birth.

23. The Bill will enable the Registrar of Marriage Celebrants to appoint one or more departmental employees to the role of Deputy Registrar of Marriage Celebrants, to undertake any of the functions or powers conferred by delegation. This will improve the efficiency of services provided by the program to aspiring celebrants, as presently statutory decisions may only be made by the Registrar of Marriage Celebrants and this limits the volume of decisions which can be made. Deputy Registrars would be designated from amongst Australian Public Service employees of the Attorney-General's Department.

24. To ensure an appropriate level of oversight of the program, the following functions or powers will not be delegable: determining the number and basis of positions of Deputy Registrars of Marriage Celebrants; determining the qualifications and/or skills that a person must have to be registered as a marriage celebrant; approving the form of a notice that a person wishes to be identified as a religious marriage celebrant on the register of marriage celebrants; requiring professional development activities; taking a disciplinary measure against a marriage celebrant; and establishing complaints resolution procedures to resolve complaints about the solemnisation of marriages by marriage celebrants.

25. The Bill will extend the timeframe in which to assess an application for registration as a marriage celebrant from three to six months. Currently, the Registrar has three months, from the time a complete application is made, to make a decision or it is deemed to be a refusal. The extension of time would ensure applicants have sufficient time to supply all information required and provide for circumstances where there is a need for additional information or enquiries. It also provides the Registrar with the ability to request further information from the applicant where needed. While applications will be progressed as expeditiously as possible, this will provide greater certainty about the maximum period of time for a decision to be made. The six month timeframe will apply whether or not additional information is required. A corresponding amendment will be made for applications for registration as a Minister of Religion under subdivision A of division 1 of part IV of the Marriage Act.

26. The Bill will also provide for the refund of an application fee where a person makes an application but misunderstands the application criteria and does not have the necessary qualifications, either a Certificate IV in Celebrancy or celebrancy skills. In some instances, applicants who seek to become registered apply and pay the application fee without holding the Certificate IV in Celebrancy.

Schedule 4—Other amendments

27. Schedule 4 comprises three parts:

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Part 1 will provide that applications for the determination of a question of law in arbitration, and review of an arbitral award, can be made to both divisions of the Federal Circuit and Family Court of Australia.

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Part 2 will repeal section 213A of the Native Title Act.

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Part 3 correct typographical errors:

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in the FCFCOA Act, to correctly refer to regulations made under section 285 where appropriate through that Act; and

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in the Federal Court Act, to correct cross references to the Competition and Consumer Act.

FINANCIAL IMPACT

Federal Court criminal jurisdiction and juries

28. To support the conferral of jurisdiction, the Federal Court was provided $35.5 million over the forward estimates (and ongoing) in the 2019–20 Budget.

29. This funding supported the appointment of two additional judges in the Federal Court's Federal Crime and Related Proceedings National Practice Area, and the construction of two new jury courtrooms in the Sydney Commonwealth Law Courts.

Assistance from Attorney-General

30. The abolition of the Native Title Respondents Scheme will save $6.4 million over four years from the 2022–23 financial year.