House of Representatives

Explanatory Memorandum

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

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Attorney-General's Portfolio Miscellaneous Measures Bill 2023

1. 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

2. 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).

3. 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 (Family Law Act);

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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

4. Part 1 of this schedule 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. Part 2 of this schedule 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.

Schedule 2—Federal Court juries

6. 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—Amendments to the Marriage Act 1961

7. This schedule will provide greater accessibility for marrying couples and make some minor technical amendments to clarify and improve the operation of the Commonwealth Marriage Celebrants Program.

8. The Bill will expand the ways that a Notice of Intended Marriage (NOIM) can be witnessed under Commonwealth law. As well as signing a NOIM in the physical presence of an authorised witness, the Bill will enable a party to sign a NOIM under the observation of an authorised witness via a video link or audio-visual communication link. This will make a temporary measure introduced in response to the COVID-19 pandemic, which ends after 31 December 2023, a permanent feature.

9. The Bill will introduce an additional safeguard, requiring the authorised celebrant to meet individually with the parties to the marriage prior to the solemnisation of the marriage, to ensure they fully and freely consent to marry. The Bill will also expand the reasons for when a NOIM can be transferred to another authorised celebrant to include where it is at the request of the parties.

10. The Bill will clarify certain requirements in the Marriage Act including that: a marriage must be solemnised in the 'physical' presence of an authorised celebrant (presence is not currently defined in the Marriage Act); an authorised celebrant can hold only one registration at any one time under the three Subdivisions; and a Commonwealth Statutory Declaration must only be used as evidence of date and place of birth where a party is unable to produce an identity document, a passport or official certificate.

11. The Bill will also make a number of improvements to the Marriage Celebrants Program including: the ability for the Registrar to refund an application fee where an applicant does not have the necessary qualification or celebrancy skills; to extend the application timeframe from three to six months in the event that further information is required from the applicant or to make further enquiries (it is currently a deemed refusal if a decision is not made on an application within 3 months); and the delegation of the functions or powers of the Register of Marriage Celebrants to a Deputy Registrar from time-to-time.

Schedule 4—Other amendments

12. Part 1 of this schedule 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 (FCFCOA).

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

14. Part 3 of this schedule will correct typographical errors in the FCFCOA Act and Federal Court Act.

Human rights implications: Schedules 1 and 2—Federal Court criminal jurisdiction and juries

15. These schedules engage the following rights:

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the right to a fair and public criminal trial (article 14(1) of the International Covenant on Civil and Political Rights (ICCPR));

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minimum guarantees in criminal proceedings (articles 14(3), (5)–(6) and (7) of the ICCPR); and

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privacy (article 17(1) of the ICCPR); and

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the right to work (articles 6(1) and 7 of the International Covenant on Economic, Social and Cultural Rights (ICESR).

Right to a fair and public criminal trial and minimum guarantees in criminal proceedings

16. Article 14(1) of the ICCPR sets out the right to a fair and public criminal trial, and requires that all persons are equal before courts and tribunals, and that they have a right to a fair and public hearing before a competent, independent and impartial court or tribunal established by law. The right is concerned with procedural fairness and may be engaged by changes to the jurisdiction or rules of procedure and evidence in courts or tribunals.

17. Article 14(3) of the ICCPR establishes minimum guarantees for the accused in criminal proceedings, including the right to be tried without undue delay, and to examine or have examined witnesses on the same basis as the prosecutor. Article 14(5) of the ICCPR sets out the accused's right to appeal both conviction and sentence.

18. Overall, schedules 1 and 2 of the Bill support these rights by enhancing the capacity of the Australian court system to hear and determine prosecutions for corporate criminal offences. Further, schedule 2 will enable trials to be heard in the Federal Court without undue delays caused by jury panel preparation by enabling the Sheriff to request a State/Territory jury official to prepare and provide a jury panel, in addition to the Sheriff's existing power to prepare a jury panel.

19. Part 1 of schedule 1 may engage these rights by conferring new criminal jurisdiction on the Federal Court. These amendments will support the rights engaged as the Federal Court is a competent, independent and impartial court established under Commonwealth law. The Federal Court has considerable expertise in civil commercial and corporate matters and is well positioned to deal with matters under this new corporate criminal jurisdiction. The Federal Court 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. In addition to the Federal Court's existing civil commercial and corporate jurisdiction, it has an existing criminal jurisdiction for cartel offences against the Competition and Consumer Act 2010.

20. Part 2 of schedule 1 may engage these rights by setting out rules of evidence and procedure which are to apply to proceedings in relation to the jurisdiction conferred by part 1.

21. The rules of evidence and procedure may vary between proceedings in the Federal Court, and a State or Territory court, and depending on the State or Territory in which the proceedings are being held. The rules of procedure and evidence that will apply under the Bill are generally consistent with those applying in other federal criminal proceedings. Regardless of which specific rules apply, both the prosecutor and accused will continue to have a reasonable opportunity to present their case under conditions that do not disadvantage them as against the other party.

22. The prosecutor, but not the accused, will be granted the right to apply for part or all of the proceedings to be transferred to a more appropriate court. The court may also transfer proceedings on its own initiative. Whether considering to transfer on application by the prosecutor or on its own initiative, the principles of procedural fairness will require the court to provide the defendant an opportunity to be heard before any decision to transfer or not transfer is made. Further, the court must also have regard to the interests of justice in determining to transfer part or all of the proceedings. These requirements will ensure that the accused will be afforded a reasonable opportunity to present their case under conditions that do not disadvantage them as against the prosecutor.

23. The evidence which will be admissible without leave of the court in related summary offence proceedings in the Federal Court will be limited to evidence which was admitted during a trial or committal proceedings for the primary indictable offence. It will remain open to the Federal Court to grant leave to any party to admit other evidence. The existing rules of evidence for proceedings in the Federal Court, will continue to apply in all circumstances. This means that both the prosecutor and the accused will be afforded the same rights to adduce evidence, and the same protections as to the admissibility of evidence.

24. Schedule 2 may engage these rights by setting out the procedure for preparing a jury panel for the purpose of empanelling juries in criminal trials by indictment in the Federal Court. These amendments will support the rights engaged as they provide for clear and transparent processes for preparing a jury panel and empanelling a jury, which are to occur in public. The only difference in rights is that the accused will have rights to peremptory challenges (resulting in the potential juror being discharged) while the prosecutor will only have rights to request a potential juror be stood aside (which does not result in the potential juror being discharged immediately). Potential jurors stood aside may be called again (at random) if the remaining jury panel is exhausted before the required number of potential jurors are seated in the jury box. Therefore, in effect, the rights of the accused and the prosecutor are substantially the same with respect to challenging jurors before empanelment

Privacy

1. Article 17(1) of the ICCPR provides for the right to not be subjected to arbitrary or unlawful interference with an individual's 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.

2. Schedule 2 may engage the right to privacy by allowing for the collection, use and disclosure of a potential juror's personal information (within the meaning of the Privacy Act 1988), including:

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collection and use of personal information by the Sheriff and State/Territory jury officials;

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disclosure of personal information by the Sheriff to the Federal Court, the Australian Federal Police and State/Territory jury officials;

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disclosure of personal information by State/Territory jury officials to the Sheriff; and

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disclosure of personal information by the Australian Federal Police to the Sheriff.

3. It is necessary to support the right to trial by jury, provided by section 80 of the Australian Constitution, that relevant personal information is collected, used and disclosed for the purposes set out in this schedule.

4. The amendments make it clear that personal information may only be collected, used and disclosed for particular purposes. Further, to protect the identity of potential jurors or jurors, the Federal Court may order that they be called or referenced in proceedings by a number rather than their name.

Right to work

5. Article 6(1) of the IESCR provides for the right to work, including the right not to be unjustly deprived of work. Schedule 2 may engage this right by requiring a person who is issued a summons by the Sheriff or a State/Territory jury official to attend for jury service, even if this would prevent them from participating in work. A failure to attend court when issued with a summons is a criminal offence.

6. It is necessary to require persons to attend for jury service to support the right to trial by jury, provided by section 80 of the Australian Constitution, and ensure that juries are impartial and representative of the community.

7. A potential juror or juror who attends for jury service is entitled to remuneration under the Federal Court Act. Further, a person may apply to be excused from jury service if attendance would cause them undue financial hardship. The Fair Work Act 2009 provides additional safeguards for employees who are absent from employment for jury service including, for example, protection from dismissal and entitlement to their basic pay.

Human rights implications: Schedule 3—Amendment of the Marriage Act 1961

8. This schedule engages the right to respect for the family (article 23 of the ICCPR).

Right to respect for the family

9. Article 23 of the ICCPR provides that the right to respect for the family includes the right of men and women of marriageable age to marry. This Bill is compatible with human rights as it increases accessibility to marriage in Australia. The Bill will provide an option to witness a NOIM remotely, under the observation of an authorised witness. This gives marrying couples greater access to an authorised witness, particularly those who face barriers engaging with paper-based processes, such as those in rural, remote or regional parts of Australia. The Bill will also clarify and improve the operation of the Commonwealth Marriage Celebrants Program, including the ability to refund an application fee where an applicant does not have the relevant qualification.

Human rights implications: Schedule 4, Part 1—Arbitration

10. This part engages the following rights:

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the right to an effective remedy (article 2(3) of the ICCPR); and

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fair trial and fair hearing rights (article 14(1) of the ICCPR).

Fair trial and fair hearing rights, and right to an effective remedy

11. Article 14(1) of the ICCPR enshrines the right of a person to have a fair and public hearing by a competent, independent and impartial tribunal established by law. As noted in the UN Human Rights Committee's General Comment No 32, an important aspect of the fairness of a hearing is its expeditiousness.

12. This right is promoted through amendments to the Family Law Act permitting applications in an arbitration to be made to the FCFCOA (Division 1), the FCFCOA (Division 2) or a single judge of a Family Court of a State. Individuals will have the ability to access the most appropriate Division to determine a question of law that has arisen during an arbitration or upon seeking review of a registered arbitral award. The amendments promote due process and procedural fairness.

Human rights implications: Schedule 4, Part 2—Assistance from Attorney-General

13. This part engages the following rights:

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the right to equal enjoyment or exercise of human rights and fundamental freedoms through special measures (article 1(4) of the Convention on the Elimination of All Forms of Racial Discrimination (CERD));

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the rights of equality and non-discrimination (articles 1–2 and 4–5 of the CERD); and

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the right to own property alone as well as in association with others (article 5(d)(v) of the CERD).

Special measures, rights of equality and non-discrimination, and right to own property

14. Under Article 2 of the CERD, the Government has committed to prohibit and eliminate racial discrimination in all its forms, and to guarantee the right of everyone, without distinction as to race colour, or national or ethnic origin, to equality before the law.

15. In particular, under Article 5 of the CERD, the Government has committed to ensuring that Australians enjoy specific civil rights, including the right to own property alone as well as in association with others (Article 5(d)(v)). Accordingly, Australian law recognises native title rights and interests held by Aboriginal and Torres Strait Islander people, as well as other property rights held by Aboriginal and Torres Strait Islander people, such as property rights granted to local Indigenous-controlled entities under statutory regimes, and title to land that is held in trust for the benefit of Indigenous residents or traditional owners of that land.

16. Under the CERD, the Government may take special measures for the sole purpose of securing adequate advancement of certain racial groups or individuals requiring such protection as may be necessary in order to ensure those groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms, provided that these measures do not lead to the maintenance of separate rights for different racial groups and are not continued after the objectives for which they were taken have been achieved. Such special measures are not deemed racial discrimination under the CERD (article 1(4)).

17. The Native Title Act recognises Australia's ratification of the CERD and was enacted as a special measure for the advancement and protection of Aboriginal and Torres Strait Islander peoples, recognising that Aboriginal and Torres Strait Islander peoples have been progressively dispossessed of their lands, largely without compensation or a lasting and equitable agreement between them and successive governments concerning the use of their lands (Preamble to the Native Title Act). The Native Title Act supports the right to property of Aboriginal and Torres Strait Islander peoples under Article 5(d)(v) of the CERD.

18. The primary recipients of the funding provided for in the NTRS under section 213A of the Native Title Act were pastoralists, commercial fishers, miners and local government councils. In some circumstances, the NTRS also supported Aboriginal and Torres Strait Islander people and entities to participate as respondents to native title claims, in order to facilitate the protection and enjoyment of their non-native title rights and interests in the claim area.

19. The repeal of section 213A will mean that this avenue of support is no longer available, with potential implications for their capacity to protect and enjoy their non-native title rights and interests in native title claim areas.

The limitation is permissible

20. The repeal of section 213A of the Native Title Act is a permissible limitation to the right to equality and non-discrimination because it not a necessary special measure to promote equal enjoyment of the right to own property. This is because:

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section 213A of the Native Title Act was not specifically targeted at addressing barriers to equality for Aboriginal and Torres Strait Islander people and entities in relation to the right to own property. The majority of recipients of the funding provided under section 213A of the Native Title Act are non-Indigenous people and entities, and the majority of Native Title Respondents Scheme funds have been granted to support non-Indigenous parties to native title matters;

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there are alternative mechanisms available under which Commonwealth funding may be provided to support Aboriginal and Torres Strait Islander people and entities in relation to their non-native title property rights in native title matters. Aboriginal and Torres Strait Islander parties to native title matters (who are not native title holders, Applicants or Claim Groups) may seek funding under the Special Circumstances Scheme administered by the Attorney-General's Department. Consideration is given to whether applicants for assistance under the Special Circumstances Scheme are able to meet the costs of legal action without suffering serious financial difficulty; and

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as Aboriginal and Torres Strait Islander people and entities who are not native title holders or claim groups may seek funding to support their involvement in native title matters under the Special Circumstances Scheme, the repeal of section 213A of the Native Title Act will not have the effect of disproportionately disadvantaging them.

21. Any limitation to Aboriginal and Torres Strait Islander people's right to equality and non-discrimination in relation to the right to own property imposed by the repeal of section 213A of the Native Title Act is therefore reasonable, necessary and proportionate. Accordingly, the limitation is permissible and the repeal of section 213A of the Native Title Act does not place the Commonwealth in breach of its obligations under the CERD.

22. Applicants for Native Title determinations, common law holders of native title and Registered Native Title Bodies Corporate will continue to receive legal assistance provided through Native Title Representative Bodies and Native Title Service Providers, and other programs which are administered by the National Indigenous Australians Agency.

Human rights implications: Schedule 4, Part 3—Corrections

23. This part does not engage any of the applicable rights or freedoms.

Conclusion

24. 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.