(3) Parts VIII, IX and XVI (except the provisions referred to in subsection (9)) commence on the twenty-eighth day after the day on which this Act receives the Royal Assent.
(4) Part VII shall be taken to have commenced on 15 June 1988.
(5) If this Act receives the Royal Assent after the commencement of the Extradition Act 1988, Part X of this Act shall be taken to have commenced immediately before that commencement.
(6) Part XI shall be taken to have commenced on 5 April 1988.
(7) If section 15 of the Crimes Legislation Amendment Act (No. 2) 1988 does not commence before this Act receives the Royal Assent, section 45 of this Act commences immediately after the commencement of section 15 of that Act.
(8) If section 16 of the Crimes Legislation Amendment Act (No. 2) 1988 does not commence before this Act receives the Royal Assent, section 46 of this Act commences immediately after the commencement of section 16 of that Act.
(9) Sections 20, 47, 51, 52, 53, 57, 62 and 65 commence on a day or days to be fixed by Proclamation.
PART II—AMENDMENTS OF THE ACTS INTERPRETATION ACT 1901
Principal Act
3. In this Part, “Principal Act” means the Acts Interpretation Act 19011.
How Chairpersons and Deputy Chairpersons may be referred to
4. Section 18b of the Principal Act is amended by adding at the end the following subsection:
“(2) Where an Act establishes an office of Deputy Chairperson of a body, the Deputy Chairperson may be referred to as Deputy Chairman or Deputy Chairwoman, as the case requires.”.
Acting appointments
5. Section 33a of the Principal Act is amended by omitting from paragraph (e) (ii) “the Act” and substituting “that or any other Act”.
PART III—AMENDMENTS OF THE ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975
Principal Act
6. In this Part, “Principal Act” means the Administrative Appeals Tribunal Act 19752.
Interpretation
7. Section 3 of the Principal Act is amended by inserting in subsection (1) the following definition:
“ ‘State’, except in section 16 or 64, includes the Northern Territory;”.
8. (1) Section 8 of the Principal Act is repealed and the following section is substituted:
Term of appointment
“8. (1) Subject to this Part (other than subsection (3)), a presidential member who is a Judge holds office until he or she attains the age of 70 years or ceases before attaining that age to be a Judge.
“(2) Subject to this Part (other than subsection (3)), where the instrument appointing a person as a full-time member to an office of Deputy President or of senior member provides that this subsection applies to the appointment, the person holds office until he or she attains the age of 70 years or 65 years, as the case may be.
“(3) Subject to this Part, a member holds office for such period of at most 7 years as is specified in the instrument of appointment, but is eligible for re-appointment.
“(4) A person appointed as a full-time member to an office of Deputy President, or an office of senior member or of member, ceases to hold office on attaining the age of 70 years or 65 years, as the case may be.
“(5) A Judge who has attained the age of 70 years shall not be appointed as a member.
“(6) A person shall not be appointed as a full-time member to an office of Deputy President, or an office of senior member or of member, if the person has attained the age of 70 years or 65 years, as the case may be.
“(7) Subject to this Part, a member holds office on such terms and conditions as are prescribed.”.
(2) The amendment made by subsection (1) applies in relation to a person appointed as a member after the commencement of this section.
Application of Judges’ Pensions Act
9. (1) Section 16 of the Principal Act is amended by omitting subsection (6) and substituting the following subsection:
“(6) A reference in this section to a presidential member does not include a reference to:
(a) a part-time member; or
(b) a full-time member appointed by an instrument that does not provide as mentioned in subsection 8 (2).”.
(2) The amendment made by subsection (1) applies in relation to a person appointed as a member after the commencement of this section.
Disclosure not required: Attorney-General’s public interest certificate
10. Section 36 of the Principal Act is amended by omitting subsections (4aa) to (8), inclusive.
Answering questions where Attorney-General intervenes on public interest grounds
11. Section 36a of the Principal Act is amended by omitting subsections (2b) to (6), inclusive.
12. After section 36a of the Principal Act the following sections are inserted:
Disclosure not required: State Attorney-General’s public interest certificate
“36b. (1) If the Attorney-General of a State certifies, by writing signed by him or her, that the disclosure of information concerning a specified matter, or the disclosure of any matter contained in a document, would be contrary to the public interest:
(a) by reason that it would involve the disclosure of deliberations or decisions of the Cabinet, or of a Committee of the Cabinet, of the State; or
(b) for any other specified reason that could form the basis for a claim by the Crown in right of the State in a judicial proceeding that the information or the matter contained in the document should not be disclosed;
the following provisions of this section have effect.
“(2) A person who is required by or under this Act to disclose the information, or to produce to, or lodge with, the Tribunal the document in which the matter is contained, for the purposes of a proceeding is not excused from the requirement, but the Tribunal shall, subject to subsection (3) and to section 46, do all things necessary to ensure that the information, or the matter contained in the document, is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the proceeding, and, in the case of a document produced to or lodged with the Tribunal, to ensure the return of the document to the person by whom it was produced or lodged.
“(3) Where the Attorney-General of a State has certified in accordance with subsection (1) that the disclosure of information, or of matter contained in a document, would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1) (a), the Tribunal shall consider whether the information or the matter should be disclosed to all or any of the parties to the proceeding and, if it decides that the information or the matter should be so disclosed, the Tribunal shall make
the information available or permit the part of the document containing the matter to be inspected accordingly.
“(4) Where, in relation to a proceeding to which the Attorney-General of a State would not, but for this subsection, be a party, that Attorney-General certifies in accordance with subsection (1) that the disclosure of information, or of matter contained in a document, would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1) (a), that Attorney-General shall, for the purposes of this Act, be taken to be a party to the proceeding.
“(5) In considering whether information, or matter contained in a document, should be disclosed as mentioned in subsection (3), the Tribunal shall take as the basis of its consideration the principle that it is desirable in the interest of securing the effective performance of the Tribunal’s functions that the parties to a proceeding should be made aware of all relevant matters, but shall pay due regard to any reason that the Attorney-General of the State has specified in the certificate as a reason why the disclosure of the information, or of the matter contained in the document, as the case may be, would be contrary to the public interest.
Answering questions where State Attorney-General intervenes on public interest grounds
“36c. (1) Where, at the hearing of a proceeding before the Tribunal, a person is asked a question in the course of giving evidence, the Attorney-General of a State may inform the Tribunal that, in his or her opinion, the answering of the question would be contrary to the public interest for a specified reason or reasons, being a reason or reasons mentioned in subsection 36b (1).
“(2) Where the Attorney-General of a State informs the Tribunal that, in his or her opinion, the answering by a person of a question would be contrary to the public interest, that person is excused from answering the question unless:
(a) if the reason specified is, or the reasons specified include, a reason referred to in paragraph 36b (1) (a)—the Court, on an appeal under section 44 or a reference under section 45, decides that the answering of the question would not be contrary to the public interest; or
(b) otherwise—the Tribunal decides that the answering of the question would not be contrary to the public interest.
“(3) Where the Attorney-General of a State informs the Tribunal that, in his or her opinion, the answering by a person of a question at the hearing of a proceeding would be contrary to the public interest and, but for this subsection, that Attorney-General would not be a party to the proceeding, that Attorney-General shall, for the purposes of this Act, be taken to be a party to the proceeding.”.
13. Before section 37 of the Principal Act the following section is inserted:
Public interest questions under sections 36, 36a, 36b and 36c
“36d. (1) As soon as practicable after making a decision:
(a) under subsection 36 (3) or 36b (3) in relation to information, or matter contained in a document, in relation to a proceeding; or
(b) under paragraph 36a (2) (b) or 36c (2) (b) in relation to the answering of a question at the hearing of a proceeding;
the Tribunal shall give to each party to the proceeding a document setting out the terms of the Tribunal’s decision.
“(2) For the purposes of this Act:
(a) the question whether information, or matter contained in a document, should be disclosed to the parties to a proceeding; or
(b) the question whether the answering of a question would be contrary to the public interest;
is a question of law.
“(3) The Tribunal’s power to make a decision under subsection 36 (3) or 36b (3) or paragraph 36a (2) (b) or 36c (2) (b) may be exercised only by the Tribunal constituted by a presidential member who is a Judge of the Federal Court of Australia.
“(4) A decision by the Tribunal:
(a) under subsection 36 (3) or 36b (3) as to whether or not information, or matter contained in a document, should be disclosed to all or any of the parties to a proceeding; or
(b) under paragraph 36a (2) (b) or 36c (2) (b) that the answering of a question at the hearing of a proceeding would, or would not, be contrary to the public interest;
is a decision by the Tribunal in that proceeding for the purposes of section 44.
“(5) Nothing in section 36 or 36b prevents the disclosure of information, or of matter contained in a document, to a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of the staff of the Tribunal.
“(6) Sections 36 and 36b exclude the operation of any rules of law that relate to the public interest and would otherwise apply in relation to the disclosure of information, or of matter contained in documents, in proceedings before the Tribunal.
“(7) The Attorney-General, or the Attorney-General of a State:
(a) may appear before the Tribunal personally, or may be represented before the Tribunal by a barrister, solicitor or other person, in order to inform the Tribunal of his or her opinion in accordance with section 36a or 36c; or
(b) may so inform the Tribunal of his or her opinion by causing to be sent to the Tribunal a written certificate that is signed by him or her and sets out that opinion.”.
Appeals to Federal Court of Australia from decisions of the Tribunal
14. Section 44 of the Principal Act is amended by omitting from subsection (3) all the words after “(1) and (2)” and substituting the following:
“and that jurisdiction:
(a) may be exercised by that Court constituted as a Full Court;
(b) shall be so exercised if:
(i) the Tribunal’s decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a presidential member; and
(ii) after consulting the President, the Chief Judge of that Court considers that it is appropriate for the appeal from the decision to be heard and determined by that Court constituted as a Full Court; and
(c) shall be so exercised if the Tribunal’s decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a Judge.”.
Confidential information not to be disclosed
15. Section 66 of the Principal Act is amended:
(a) by omitting paragraph (1) (c) and substituting the following paragraph:
“(c) a certificate under section 36 or 36b is in force certifying that the disclosure of information concerning the matter to which the evidence would relate would be contrary to the public interest for a reason referred to in subsection 36 (1) or 36b (1) and, where the certificate does not specify a reason referred to in paragraph 36 (1) (a) or (b), or 36b (1) (a), as the case may be, the Tribunal has not made information concerning that matter available to the parties to a proceeding before the Tribunal and, in the case of information contained in a document, has not permitted the parties to such a proceeding to inspect the document.”;
(b) by omitting paragraph (2) (c) and substituting the following paragraph:
“(c) a certificate under section 36 or 36b is in force certifying that the disclosure of matter contained in the document would be contrary to the public interest for a reason referred to in subsection 36 (1) or 36b (1) and, where the certificate does not specify a reason referred to in paragraph 36 (1) (a) or (b), or 36b (1) (a), as the case may be, the Tribunal has not permitted the parties to a proceeding before the Tribunal to inspect the document.”.
Consequential amendments of Principal Act
16. The Principal Act is further amended as set out in the Schedule.
PART IV—AMENDMENTS OF THE AUSTRALIAN FEDERAL POLICE ACT 1979
Principal Act
17. In this Part, “Principal Act” means the Australian Federal Police Act 19793.
Members’ powers and duties
18. Section 9 of the Principal Act is amended by adding at the end the following subsection:
“(3) In paragraph (1) (a):
‘constable’ includes a member of the Police Force of a State or Territory.”.
19. (1) Section 24 of the Principal Act is repealed and the following section is substituted:
Determination of numbers by Commissioner
“24. The Commissioner may determine the number of persons who may be appointed to each rank of the Australian Federal Police.”.
(2) A determination that, immediately before the commencement of this section, was in force under section 24 of the Principal Act has effect after that commencement as if it had been made under section 24 of the Principal Act as amended by this section.
20. After section 36 of the Principal Act the following sections are inserted:
Application of merit principle, prohibition of patronage etc.
“36a. (1) Powers under this Act in respect of appointment shall be exercised in accordance with procedures that ensure that, in each case where an appointment to the Australian Federal Police is to be made:
(a) all persons who are eligible for appointment to the Australian Federal Police have, so far as practicable, a reasonable opportunity to apply for the appointment; and
(b) the appointment is made on the basis of an assessment of the relative suitability of the applicants for the appointment, having regard to:
(i) the nature of the duties to be performed by the person appointed; and
(ii) the abilities, qualifications, experience, personal qualities and potential for development of each applicant that are relevant to the performance of those duties.
“(2) Without limiting the generality of subsection (1), powers under this Act shall be exercised without patronage or favouritism.
“(3) Without limiting the generality of subsection (1), powers under this Act in respect of appointments, transfers and promotions shall, subject to subsection (4), be exercised without:
(a) discrimination on the ground of political affiliation, race, colour, ethnic origin, social origin, religion, sex, sexual preference, marital status or pregnancy;
(b) discrimination that is unlawful under the Racial Discrimination Act 1975 or the Sex Discrimination Act 1984; or
(c) any other unjustified discrimination.
“(4) The reference in subsection (3) to discrimination in relation to a power in respect of appointment, transfer or promotion does not include a reference to:
(a) discrimination that is essential for the effective performance of the duties to which the appointment, transfer or promotion relates, is not unlawful under the Racial Discrimination Act 1975 or the Sex Discrimination Act 1984 and is declared by the regulations not to be discrimination for the purposes of subsection (3); or
(b) discrimination in relation to appointment that is not unlawful under the Racial Discrimination Act 1975 or the Sex Discrimination Act 1984 and is in accordance with a program to encourage the appointment of women or prescribed persons to the Australian Federal Police, being a program that is declared by the regulations to be an approved program for the purposes of this paragraph.
“(5) Where the exercise of a power in respect of appointment is, by virtue of paragraph (4) (b), not discrimination for the purposes of subsection (3), the power shall be taken to have been exercised in accordance with procedures of the kind referred to in subsection (1).
“(6) A reference in this section to the exercise of a power under this Act includes a reference to the making of a report or recommendation in relation to the exercise of such a power.
Review by Merit Protection and Review Agency of non-appellable promotion decisions
“36b. (1) A member who applied unsuccessfully for a non-appellable promotion may, within the prescribed period, apply to the Agency for review of the promotion on the ground that it would be unreasonable for the promotion to stand because of:
(a) a breach of section 36a in connection with the making of the promotion; or
(b) a serious defect in the selection process.
“(2) An application for review of a promotion shall be in writing and shall include particulars of the alleged breach of section 36a or the alleged defect in the selection process.
“(3) Where an application is made to the Agency for review of a promotion, the Agency shall:
(a) make such inquiries as it considers necessary to determine whether a recommendation should be made under subsection (4) in relation to the promotion; and
(b) make a decision in writing either:
(i) affirming the promotion; or
(ii) making a recommendation under subsection (4) in relation to the promotion.
“(4) Where an application is made to the Agency for review of a promotion, the Agency shall, if it is satisfied that it would be unreasonable for the promotion to stand because of:
(a) a breach of section 36a in connection with the making of the promotion; or
(b) a serious defect in the selection process;
recommend to the Commissioner that the promotion be cancelled.
“(5) The Agency shall cause a copy of its decision to be given to:
(a) the member who made the application;
(b) the member promoted; and
(c) the Commissioner.
“(6) Where the Agency recommends to the Commissioner that a promotion be cancelled, the Commissioner:
(a) shall, having regard to the recommendation, reconsider the promotion; and
(b) may:
(i) if the promotion was by the Governor-General—recommend to the Governor-General that the promotion be cancelled; or
(ii) otherwise—cancel the promotion.
“(7) Where the Commissioner recommends to the Governor-General under subsection (6) that a promotion be cancelled, the Governor-General may cancel the promotion.
“(8) Where the Commissioner or the Governor-General cancels a promotion under subsection (6) or (7):
(a) the member promoted shall, for all purposes, be treated as having held the position concerned during the period beginning when the promotion took effect and ending when the promotion is cancelled; and
(b) upon the cancellation, the Commissioner shall transfer the member to a position within a rank that is the same as, or equivalent to, the
rank within which the member held a position immediately before the promotion took effect, and, if necessary, the Commissioner shall create a position, make a new determination under section 24, or do both of those things, for the purpose.
“(9) The Agency shall refuse to consider or further consider an application for review of a promotion if the Agency is satisfied that the application is frivolous or vexatious or was not made in good faith.
“(10) Where 2 or more applications are made to the Agency for review of the same promotion, the Agency may consider those applications concurrently.
“(11) In this section:
‘Agency’ means the Merit Protection and Review Agency established by the Merit Protection (Australian Government Employees) Act 1984;
‘non-appellable promotion’ means a promotion under section 25 or 26 to a position within a prescribed rank of the Australian Federal Police, being a promotion that takes place after the commencement of this section.”.
PART V—AMENDMENT OF THE COMMONWEALTH PLACES (APPLICATION OF LAWS) ACT 1970
Principal Act
21. In this Part, “Principal Act” means the Commonwealth Places (Application of Laws) Act 19704.
Certain provisions not to apply to applied provisions
22. Section 5 of the Principal Act is amended by omitting subsections (1) and (2) and substituting the following subsections:
“(1) The Acts Interpretation Act 1901 does not apply in relation to the applied provisions.
“(2) Sections 4a, 4b, 4d to 4k (inclusive), 5, 6, 7, 7a and 86 of the Crimes Act 1914 do not apply in relation to, or in relation to matters arising under, the applied provisions.”.
PART VI—AMENDMENTS OF THE CRIMES AT SEA ACT 1979
Principal Act
23. In this Part, “Principal Act” means the Crimes at Sea Act 19795.
Certain Commonwealth laws excluded
24. Section 5 of the Principal Act is amended:
(a) by omitting from subsection (1) “(other than section 30) does not apply to or” and substituting “does not apply”;
(b) by omitting from subsection (3) all the words before “matters” and substituting “Sections 4a, 4b, 4d to 4k (inclusive), 5, 6, 7, 7a and 86 of the Crimes Act 1914 do not apply in relation to”.
PART VII—AMENDMENTS OF THE CRIMES LEGISLATION AMENDMENT ACT (No. 2) 1988
Principal Act
25. In this Act, “Principal Act” means the Crimes Legislation Amendment Act (No. 2) 19886.
Commencement
26. Section 2 of the Principal Act is amended by omitting subsection (4) and substituting the following subsection:
“(4) Section 24 commences on 15 June 1988.”.
Reports to be made to Minister concerning use of listening devices
27. Section 11 of the Principal Act is amended:
(a) by omitting from paragraph (a) “issued,” and substituting “issued”;
(b) by omitting from paragraph (a) “agency,” and substituting “agency”.
PART VIII—AMENDMENT OF THE CUSTOMS ACT 1901
Principal Act
28. In this Part, “Principal Act” means the Customs Act 19017.
Court may make further orders
29. Section 243f of the Principal Act is amended by omitting subsection (3) and substituting the following subsections:
“(3) Where:
(a) a person is examined before the Court, or the Registrar of the Court, under an order made under subsection (1); or
(b) an order made under subsection (1) directs a person to furnish a statement to the Official Trustee;
the person is not excused from:
(c) answering a question when required to do so by the Court, or by the Registrar of the Court; or
(d) furnishing the statement, or setting out particulars in the statement; as the case may be, on the ground that the answer to the question, or the statement or particulars, might tend to incriminate the person or make the person liable to a forfeiture or penalty.
“(3a) Where a person:
(a) is examined before the Court, or the Registrar of the Court; or
(b) furnishes a statement to the Official Trustee;
under an order made under subsection (1), then:
(c) a statement or disclosure made by the person in answer to a question put in the course of the examination; or
(d) the statement so furnished;
as the case may be, and any information, document or thing obtained as a direct or indirect consequence of the statement or disclosure referred to in paragraph (c), or of the statement referred to in paragraph (d), is not admissible against the person in any civil or criminal proceeding except:
(e) a proceeding for giving false testimony in the course of the examination, or in respect of the falsity of the statement, as the case may be; or
(f) a proceeding for the recovery of a pecuniary penalty, for the purpose only of facilitating the assessment of the amount of the pecuniary penalty.”.
PART IX—AMENDMENT OF THE DIRECTOR OF PUBLIC PROSECUTIONS ACT 1983
Principal Act
30. In this Part, “Principal Act” means the Director of Public Prosecutions Act 19838.
Powers of Director
31. Section 9 of the Principal Act is amended by inserting after subsection (8) the following subsection:
“(8a) In subsections (7) and (8):
‘right of appeal’ includes a right:
(a) to apply for a review or rehearing; or
(b) to institute a proceeding in the nature of an appeal or of an application for a review or rehearing.”.
PART X—AMENDMENT OF THE EXTRADITION (REPEAL AND CONSEQUENTIAL PROVISIONS) ACT 1988
Principal Act
32. In this Part, “Principal Act” means the Extradition (Repeal and Consequential Provisions) Act 19889.
Schedule
33. The Schedule to the Principal Act is amended by omitting “1966 or” from the amendment of subsection 9 (6) of the Director of Public Prosecutions Act 1983 and substituting “1966”.
PART XI—AMENDMENT OF THE FAMILY COURT OF AUSTRALIA (ADDITIONAL JURISDICTION AND EXERCISE OF POWERS) ACT 1988
Principal Act
34. In this Part, “Principal Act” means the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 198810.
Commencement
35. Section 2 of the Principal Act is amended by inserting in subsection (1) “11 (inclusive), paragraphs 12 (b), (c), (e) and (f) and sections 13 to” after “to”.
PART XII—AMENDMENTS OF THE FAMILY LAW ACT 1975
Principal Act
36. In this Part, “Principal Act” means the Family Law Act 197511.
Original jurisdiction of Family Court
37. (1) Section 31 of the Principal Act is amended by inserting in paragraph (1) (c) “(other than the Northern Territory)” after “Territory”.
(2) The amendment made by subsection (1) applies in relation to a matter if, and only if:
(a) it arises after the commencement of this section; or
(b) it arose before that commencement but, as at that commencement, no proceedings had been instituted in respect of it.
38. (1) After section 65 of the Principal Act the following section is inserted:
Order that child be made available for examination
“65a. (1) Where, in proceedings under this Act, a child is separately represented by a person under an order made under section 65, the court may, on application by the person, order a custodian of the child to make the child available, as specified in the order, for a psychiatric or psychological examination to be made for the purpose of preparing a report about the child for use by the person in connection with the proceedings.
“(2) In this section:
‘custodian’, in relation to a child, means a person who has, or any one of the persons who have, the daily care and control of the child.”.
(2) Section 65a of the Principal Act as amended by this Part applies in relation to an order made under section 65 of that Act whether before or after the commencement of this section.
Declaration of interests in property
39. (1) Section 78 of the Principal Act is amended by omitting subsection (3).
(2) The amendment made by subsection (1) applies in relation to proceedings instituted after this section commences.
PART XIII—AMENDMENT OF THE JUDICIARY ACT 1903
Principal Act
40. In this Part, “Principal Act” means the Judiciary Act 190312.
Common law to govern
41. (1) Section 80 of the Principal Act is amended by omitting “common law of England” and substituting “common law in Australia”.
(2) The amendment made by subsection (1) applies for the purposes of proceedings instituted after the commencement of this section.
PART XIV—AMENDMENT OF THE LAW OFFICERS ACT 1964
Principal Act
42. In this Part, “Principal Act” means the Law Officers Act 196413.
Pension of Solicitor-General
43. Section 16 of the Principal Act is amended by omitting subsections (4) to (9), inclusive, and substituting the following subsections:
“(4) If the term of appointment of a person who has served in the office of Solicitor-General for at least 7 years has expired and the person:
(a) is not re-appointed; and
(b) is not entitled to payment of a pension by virtue of subsection (1);
subsections (5) to (9), inclusive, apply to or in respect of the person.
“(5) For the purpose of the application of subsections (6), (7) and (8) in relation to the person, a reference to the relevant discounted rate of pension is a reference to whichever is the lesser of:
(a) 0.5% of the appropriate current salary for each completed month of the person’s actual service as Solicitor-General; or
(b) 60% of the appropriate current salary;
reduced by 2.5% for each whole year between:
(c) in the case of the application of subsection (6)—the date on which the person actually ceased to hold office as Solicitor-General and the date that the Attorney-General certified under that subsection was the date on which the person became permanently disabled or permanently infirm;
(d) in the case of the application of subsection (7)—the date on which the person actually ceased to hold office as Solicitor-General and the date on which the person died; or
(e) in the case of the application of subsection (8)—the date on which the person actually ceased to hold office as Solicitor-General and the date on which the person attained the age of 60 years.
“(6) If the Attorney-General certifies that the person became, at a particular date before attaining the age of 60 years, permanently disabled or permanently infirm, the relevant provisions of the Judges’ Pensions Act 1968 apply in relation to the person as if the person had held office as Solicitor-General at that date and the certificate were given under subsection 6 (2) of that Act, but the rate of the pension payable to the person is the relevant discounted rate of pension.
“(7) If the person dies before attaining the age of 60 years and was not entitled to a pension under subsection (6) immediately before his or her death, the relevant provisions of the Judges’ Pensions Act 1968 apply in relation to the person as if the person had held office as Solicitor-General at the time of his or her death, but a reference in any of those provisions as so applying to the relevant pension is a reference to pension at a rate equal to the relevant discounted rate of pension.
“(8) If the person attains the age of 60 years and was not entitled to a pension under subsection (6) immediately before attaining that age, the relevant provisions of the Judges’ Pensions Act 1968 apply in relation to the person as if the person’s period of appointment as Solicitor-General had expired upon his or her attaining that age after having served for not less than 10 years, but the rate of the pension payable to the person is the relevant discounted rate of pension.
“(9) The person may, at any time before attaining the age of 60 years, apply to the Attorney-General for a certificate under subsection (6) and, upon receipt of the application, the Attorney-General shall:
(a) if satisfied that the person became, at a particular time before attaining the age of 60 years, permanently disabled or permanently infirm—so certify under subsection (6); or
(b) otherwise—refuse to certify under that subsection.
“(10) In the application of the relevant provisions of the Judges’ Pensions Act 1968 by virtue of this section, a reference in section 6 of that Act to a Judge retiring includes a reference to a Solicitor-General not being reappointed.
“(11) An application may be made to the Administrative Appeals Tribunal for review of a refusal of the Attorney-General, on application under subsection (9), to give a certificate under subsection (6).
“(12) In this section:
‘appropriate current salary’, in relation to a person at a particular time, means salary at the rate that was or is payable at that time to the Solicitor-General;
‘Judge’ means a Judge within the meaning of the Judges’ Pensions Act 1968;
‘relevant provisions of the Judges’ Pensions Act 1968’ means the provisions of that Act referred to in subsection (1).
“(13) Pensions under or by virtue of this section are payable out of the Consolidated Revenue Fund, which is appropriated accordingly.”.
PART XV—AMENDMENTS OF THE MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT 1987
Principal Act
44. In this Part, “Principal Act” means the Mutual Assistance in Criminal Matters Act 198714.
Requests by foreign countries
45. Section 13 of the Principal Act is amended by adding at the end the following subsection:
“(10) Subsection (8) does not apply in a case where its application would be inconsistent with a provision of a mutual assistance treaty between Australia and the foreign country concerned.”.
Immunities
46. Section 19 of the Principal Act is amended by inserting after subsection (2) the following subsection:
“(2a) Paragraph (1) (f) or (g) does not apply in a case where its application would be inconsistent with a provision of a mutual assistance treaty between Australia and the foreign country concerned.”.
Requests for enforcement of orders
47. Section 34 of the Principal Act is amended:
(a) by adding at the end of subsection (4) “and shall comply with subsection 23a (2) of the Proceeds of Crime Act 1987 in relation to the order”;
(b) by omitting from subsection (8) “an order” and substituting “a foreign pecuniary penalty order or a foreign restraining order”;
(c) by omitting paragraph (11) (a).
PART XVI—AMENDMENTS OF THE PROCEEDS OF CRIME ACT 1987
Principal Act
48. In this Part, “Principal Act” means the Proceeds of Crime Act 198715.
49. After section 9 of the Principal Act the following section is inserted:
Effective control of property
“9a. (1) Property, or an interest in property, may be subject to the effective control of a person within the meaning of this Act whether or not the person has:
(a) a legal or equitable estate or interest in the property; or
(b) a right, power or privilege in connection with the property.
“(2) Without limiting the generality of any other provision of this Act, in determining:
(a) whether or not property, or an interest in property, is subject to the effective control of a person; or
(b) whether or not there are reasonable grounds to believe that property, or an interest in property, is subject to the effective control of a person;
regard may be had to:
(c) shareholdings in, debentures over or directorships of a company that has an interest (whether direct or indirect) in the property;
(d) a trust that has a relationship to the property; and
(e) family, domestic and business relationships between persons having an interest in the property, or in companies of the kind referred to in paragraph (c) or trusts of the kind referred to in paragraph (d), and other persons.”.
Effect of forfeiture order on third parties
50. Section 21 of the Principal Act is amended:
(a) by omitting paragraph (6) (a) and substituting the following paragraph:
“(a) the applicant was not, in any way, involved in the commission of an offence in respect of which forfeiture of the property is sought, or the forfeiture order against the property was made, as the case requires; and”;
(b) by omitting from paragraph (6) (b) “the offence” and substituting “such an offence”.
51. After section 22 of the Principal Act the following heading is inserted:
“Division 2a—Registered foreign forfeiture orders”.
Registered foreign forfeiture orders
52. Section 23 of the Principal Act is amended:
(a) by omitting from subsection (1) “this Division” and substituting “Division 2”;
(b) by inserting in subsection (2) “, subject to section 23a,” after may”.
53. After section 23 of the Principal Act the following section is inserted:
Effect on third parties of registration of foreign forfeiture order
“23a. (1) This section applies where, after the commencement of this section, a court in Australia registers under the Mutual Assistance Act a foreign forfeiture order against property.
“(2) On registering the order, the court shall direct the DPP to give or publish notice of the registration:
(a) to specified persons (other than a person convicted of a foreign serious offence in respect of which the order was made) the court has reason to believe may have an interest in the property; and
(b) in the manner and within the time the court considers appropriate.
“(3) A person (other than a person convicted of a foreign serious offence in respect of which the foreign forfeiture order was made) who claims an interest in the property may apply to the court for an order under subsection (7).
“(4) A person who was given notice of, or appeared at, the hearing held in connection with the making of the foreign forfeiture order is not entitled, except with the leave of the court, to apply under subsection (3).
“(5) The court may grant leave under subsection (4) if satisfied that there are special grounds for doing so.
“(6) Without limiting the generality of subsection (5), the court may grant a person leave under subsection (4) if the court is satisfied that:
(a) the person, for a good reason, did not attend the hearing referred to in subsection (4) although the person had notice of the hearing; or
(b) particular evidence that the person proposes to adduce in connection with the proposed application under subsection (3) was not available to the person at the time of the hearing referred to in subsection (4).
“(7) If, on an application for an order under this subsection, the court is satisfied that:
(a) the applicant was not, in any way, involved in the commission of a foreign serious offence in respect of which the foreign forfeiture order was made; and
(b) if the applicant acquired his, her or its interest in the property at the time of or after the commission of such an offence—the applicant acquired the interest:
(i) for sufficient consideration; and
(ii) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was, at the time of the acquisition, tainted property in relation to a foreign serious offence;
the court shall make an order:
(c) declaring the nature, extent and value (as at the time when the order is made) of the applicant’s interest in the property; and
(d) either:
(i) directing the Commonwealth to transfer the interest to the applicant; or
(ii) declaring that there is payable by the Commonwealth to the applicant an amount equal to the value declared under paragraph (c).
“(8) Subject to subsection (9), an application under subsection (3) shall be made before the end of 6 weeks beginning on the day when the foreign forfeiture order is registered in the court.
“(9) The court may grant a person leave to apply under subsection (3) outside the period referred to in subsection (8) if the court is satisfied that the person’s failure to apply within that period was not due to any neglect on the person’s part.
“(10) A person who applies under subsection (3) shall give to the DPP and the Minister notice, as prescribed, of the application.
“(11) The DPP shall be a party to proceedings on an application under subsection (3) and the Minister may intervene in such proceedings.”.
Assessment of pecuniary penalty
54. Section 27 of the Principal Act is amended by omitting paragraph (7) (b) and substituting the following paragraph:
“(b) Division 3 of Part XIII of the Customs Act.”.
Court may lift corporate veil etc.
55. Section 28 of the Principal Act is amended:
(a) by omitting from subsection (1) all the words after “effective control” and substituting “of the person.”;
(b) by omitting subsections (2) and (3) and substituting the following subsection:
“(3) On application by the DPP, a court may, if in its opinion particular property is subject to the effective control of a person against whom the court has made a pecuniary penalty order, make an order declaring that the whole, or a specified part, of that property is available to satisfy the pecuniary penalty order.”.
Recovery of property to which section 30 applies
56. Section 31 of the Principal Act is amended by inserting in subparagraph (6) (b) (i) “and” after “activity;”.
Buying out other interests in forfeited property
57. Section 34 of the Principal Act is amended by inserting in paragraph (b) “, 23a (7) (d) (i)” after “21 (6) (d) (i)”.
Restraining orders
58. Section 43 of the Principal Act is amended:
(a) by inserting after paragraph (1) (d) the following paragraph:
“(da) specified property of the defendant and all other property of the defendant (including property acquired after the making of the order);”;
(b) by omitting from paragraph (2) (a) “or” (last occurring) and substituting “and”;
(c) by inserting after subsection (6) the following subsections:
“(6a) Where the Official Trustee is given a direction under paragraph (2) (b) in relation to shares in a company, it is entitled:
(a) to exercise the rights attaching to the shares as if it were the registered holder of the shares; and
(b) to do so to the exclusion of the registered holder.
“(6b) Neither of paragraph (6) (c) and subsection (6a) limits the generality of the other.”.
Grounds for making restraining order
59. Section 44 of the Principal Act is amended:
(a) by omitting from subsection (1) “(7)” and substituting “(7a)”;
(b) by omitting paragraph (6) (b) and substituting the following paragraph:
“(b) the application seeks a restraining order against:
(i) all the property of the defendant;
(ii) all the property of the defendant other than specified property; or
(iii) specified property of the defendant and all other property of the defendant;”;
(c) by omitting subsection (8).
Court may make further orders
60. Section 48 of the Principal Act is amended:
(a) by omitting from paragraph (3) (f) “subparagraph”;
(b) by inserting in subparagraph (4) (e) (i) “and” after “activity;”;
(c) by inserting after subsection (6) the following subsections:
“(6a) A person whom an order under subsection (1) directs to furnish a statement to the Official Trustee is not excused from furnishing the statement, or from setting out particulars in the statement, on the ground that the statement or particulars, as the
case may be, might tend to incriminate the person or make the person liable to a forfeiture or penalty.
“(6b) Where a person furnishes a statement to the Official Trustee under an order made under subsection (1), neither the statement, nor any information, document or thing obtained as a direct or indirect consequence of the statement, is admissible against the person in any criminal proceedings except a proceeding in respect of the falsity of the statement.”;
(d) by inserting in subsection (7) “or (6b)” after “(6)”.
61. After section 48 of the Principal Act the following section is inserted:
Order for taxation of legal expenses to be met out of restrained property
“48a. (1) Where:
(a) a court makes a restraining order directing the Official Trustee to take custody and control of property; and
(b) the order makes provision for meeting, out of the property or part of it, a person’s reasonable expenses in defending a criminal charge;
the Official Trustee may apply to the court for an order under subsection (3).
“(2) The Official Trustee shall give written notice of an application under subsection (1) to the person.
“(3) On an application under subsection (1), the court may order that the expenses be taxed as provided in the order or may dismiss the application.
“(4) Where the Official Trustee makes an application under subsection (1), it need not, except as ordered by the court after the application is made, take any steps for the purpose of meeting the expenses as provided by the restraining order unless and until:
(a) an order under subsection (3) in relation to the expenses is complied with; or
(b) the application, and any appeal arising out of it, are finally determined, or otherwise disposed of, otherwise than by the making of such an order.”.
Official Trustee to discharge pecuniary penalty
62. (1) Section 49 of the Principal Act is amended:
(a) by omitting subparagraph (6) (a) (i) and substituting the following subparagraph:
“(i) apply the money in payment of the costs, charges, expenses and remuneration, of the kind referred to in subsection 55 (1), incurred or payable in connection with the restraining order and payable to the Official Trustee under the regulations; and”;
(b) by omitting subparagraph (6) (b) (ii) and substituting the following subparagraph:
“(ii) apply the proceeds of the sale or disposition in payment of the costs, charges, expenses and remuneration, of the kind referred to in subsection 55 (1), incurred or payable in connection with the restraining order or the sale or disposition and payable to the Official Trustee under the regulations; and”.
(2) Subject to the regulations, where, immediately before the commencement of this section, costs within the meaning of subsection 55 (1) of the Principal Act (including expenses incurred in connection with the sale or disposition of property to which a restraining order relates) were payable to the Official Trustee in accordance with that subsection in respect of a restraining order, the costs shall be taken to be, after that commencement, costs incurred in connection with the restraining order and payable to the Official Trustee under the regulations.
Registration of restraining orders
63. Section 51 of the Principal Act is amended by omitting “prescribed”.
Duties of Official Trustee
64. Section 53 of the Principal Act is amended:
(a) by omitting from paragraph (3) (a) “and” (last occurring);
(b) by inserting after paragraph (3) (b) the following word and paragraph:
“and (c) by virtue of section 58 of the Bankruptcy Act, the property vests in the Official Trustee or a registered trustee;”.
65. Section 55 of the Principal Act is repealed and the following section is substituted:
Costs etc. payable to Official Trustee
“55. (1) The regulations may make provision for or in relation to:
(a) the costs, charges and expenses incurred in connection with; and
(b) the Official Trustee’s remuneration in respect of;
the performance or exercise by the Official Trustee of functions, duties or powers under this Act.
“(2) An amount equal to each amount of remuneration that the Official Trustee receives under the regulations shall be paid into the Consolidated Revenue Fund.”.
When restraining order ceases to be in force
66. Section 57 of the Principal Act is amended:
(a) by omitting from paragraph (2) (h) “extension to” and substituting “extension of;
(b) by inserting in paragraph (2) (j) “subject to a preceding paragraph,” before “if”;
(c) by omitting from paragraph (3) (a) “or” (last occurring);
(d) by inserting after paragraph (3) (a) the following paragraph:
“(aa) that the property or part of the property may still become forfeited under subsection 30 (1); or”;
(e) by inserting in sub-subparagraph (3) (b) (ii) (a) “or (7a) (a) (ii)” after “44 (7) (a) (ii)”;
(f) by omitting subsection (6) and substituting the following subsections:
“(6) A reference in this section to the relevant period in relation to a restraining order is a reference to the period beginning on the day when the order was made and ending:
(a) if an order has, or orders have, been made under subsection (3) extending the restraining order’s period of operation—at such time, or on the occurrence of such event, as is specified in the order, or the last of the orders, so made;
(b) if paragraph (a) does not apply but an order has, or orders have, been made by virtue of paragraph 48 (1) (a), (b) or (e) in relation to the restraining order—at the end of 6 months after the day when the order, or the last of the orders, was so made; or
(c) in any other case—at the end of 6 months after the day when the restraining order was made.
“(7) In this section:
‘extend’ includes further extend.”.
Production orders
67. Section 66 of the Principal Act is amended:
(a) by omitting paragraphs (2) (a) and (b) and substituting the following paragraphs:
“(a) if the offence is an ordinary indictable offence:
(i) the person who was convicted of the offence, or who is believed to have committed the offence, derived a benefit, directly or indirectly, from the commission of the offence; and
(ii) property specified in the information is subject to the effective control of the person; or
(b) if the offence is a serious offence—property specified in the information is subject to the effective control of the person;”;
(b) by omitting from subsection (3) “28 (2)” and substituting “9a (2)”.
Search warrant for location etc. of property
68. Section 71 of the Principal Act is amended:
(a) by omitting paragraphs (2) (a) and (b) and substituting the following paragraphs:
“(a) if the offence is an ordinary indictable offence:
(i) the person who was convicted of the offence, or who is believed to have committed the offence, derived a benefit, directly or indirectly, from the commission of the offence; and
(ii) property specified in the information is subject to the effective control of the person; or
(b) if the offence is a serious offence—property specified in the information is subject to the effective control of the person;”;
(b) by omitting from subsection (3) “28 (2)” and substituting “9a (2)”.
Conduct by directors, servants or agents
69. Section 85 of the Principal Act is amended by omitting from paragraph (2) (b) “consent of and substituting “consent or”.
PART XVII—AMENDMENT OF THE THERAPEUTIC GOODS ACT 1966
Principal Act
70. In this Part, “Principal Act” means the Therapeutic Goods Act 196616.
Offences: general
71. Section 25 of the Principal Act is amended by omitting from subsection (1) “section 41 of the Acts Interpretation Act 1901” and substituting “section 4d of the Crimes Act 1914”.
—————
SCHEDULE Section 16
CONSEQUENTIAL AMENDMENTS OF THE ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975
Paragraph 28 (3a) (b):
Omit “to (8) (inclusive)”, substitute “, (3), (3a) and (4) and 36d (1) to (6), inclusive,”.
Section 39:
Omit “and 36,”, substitute “, 36 and 36b,”
Subsection 43 (2):
Omit “, 36 and 36a,”, substitute “and 36d,”.
Paragraph 46 (1) (a):
Omit “notwithstanding subsection 36 (2),”, substitute “despite subsections 36 (2) and 36b (2),”.
Subsection 46 (2):
Omit “by the Attorney-General in accordance with subsection 28 (2) or 36 (1)”, substitute “in accordance with subsection 28 (2), 36 (1) or 36b (1)”.
Paragraph 46 (3) (a):
Omit “or 36 (1) (a) or (b),”, substitute “, 36 (1) (a) or (b), or 36b (1) (a),”.
NOTES
1. No. 2, 1901, as amended. For previous amendments, see No. 4, 1916; No. 8, 1918; No. 23, 1930; No. 24, 1932; No. 10, 1937; No. 7, 1941; No. 78, 1947; No. 79, 1948; No. 80, 1950; No. 69, 1957; No. 19, 1963; No. 52, 1964; No. 93, 1966; Nos. 79 and 216, 1973; Nos. 37 and 144, 1976; No. 35, 1978; No. 1, 1980; No. 61, 1981; No. 26, 1982 (as amended by No. 80, 1982); No. 80, 1982; No. 39, 1983; No. 27, 1984 (as amended by No. 165, 1984); No. 63, 1984 (as amended by No. 165, 1984); No. 72, 1984; No. 193, 1985; and Nos. 92, 120 and 141, 1987.
2. No. 91, 1975, as amended. For previous amendments, see Nos. 37, 60, 89, 91, 157, 162, 163 and 209, 1976; Nos. 30, 57, 58 and 111, 1977; Nos. 65 and 109, 1978; Nos. 19 and 143, 1979; No. 110, 1980; Nos. 19 and 61, 1981; Nos. 26 and 80, 1982; No. 91, 1983; Nos. 63 and 72, 1984; Nos. 65 and 193, 1985; No. 48, 1986; and Nos. 38 and 63, 1988.
3. No. 58, 1979, as amended. For previous amendments, see No. 155, 1979; No. 69, 1980; No. 22, 1981; No. 80, 1982; No. 39, 1983 (as amended by No. 117, 1984); No. 91, 1983 (as amended by No. 117, 1984 and No. 121, 1985); No. 117, 1984; No. 121, 1985; No. 35, 1986; and No. 38, 1988.
4. No. 121, 1970, as amended. For previous amendments, see No. 216, 1973; No. 37, 1976; No. 80, 1982; No. 114, 1983; No. 165, 1984; and No. 168, 1986.
NOTES—continued
5. No. 17, 1979, as amended. For previous amendments, see No. 80, 1982.
6. No. 66, 1988.
7. No. 6, 1901, as amended. For previous amendments, see No. 21, 1906; Nos. 9 and 36, 1910; No. 19, 1914; No. 10, 1916; No. 41, 1920; No. 19, 1922; No. 12, 1923; No. 22, 1925; No. 6, 1930; Nos. 7 and 45, 1934; No. 7, 1935; No. 85, 1936; No. 54, 1947; No. 45, 1949; Nos. 56 and 80, 1950; No. 56, 1951; No. 108, 1952; No. 47, 1953; No. 66, 1954; No. 37, 1957; No. 54, 1959; Nos. 42 and 111, 1960; No. 48, 1963; Nos. 29, 82 and 133, 1965; No. 28, 1966; No. 54, 1967; Nos. 14 and 104, 1968; Nos. 12 and 134, 1971; Nos. 162 and 216, 1973; Nos. 28 and 120, 1974; Nos. 56, 77 and 107, 1975; Nos. 41, 91 and 174, 1976; No. 154, 1977; Nos. 36 and 183, 1978; No. 19, 1979; No. 92, 1979 (as amended by Nos. 40 and 175, 1985); Nos. 116, 155, 177 and 180, 1979; Nos. 13, 15, 110 and 171, 1980; Nos. 45 and 61, 1981; No. 64, 1981 (as amended by 51, 1982); Nos. 67, 152 and 157, 1981; Nos. 48, 51 and 80, 1982; No. 81, 1982 (as amended by No. 39, 1983; No. 72, 1984; and No. 40, 1985); Nos. 108, 115 and 137, 1982; Nos. 19, 39 and 101, 1983; Nos. 2, 22, 63, 72 and 165, 1984; Nos. 39, 40 and 175, 1985; Nos. 10, 34 and 149, 1986; Nos. 51, 76, 81, 104 and 141, 1987; and Nos. 63, 66 and 76, 1988.
8. No. 113, 1983, as amended. For previous amendments, see Nos. 10 and 165, 1984; Nos. 64 and 166, 1985; No. 88, 1986; and Nos. 86 and 141, 1987.
9. No. 5, 1988.
10. No. 8, 1988.
11. No. 53, 1975, as amended. For previous amendments, see Nos. 63, 95 and 209, 1976; No. 102, 1977; No. 23, 1979; No. 2, 1982; Nos. 67 and 72, 1983; Nos. 63, 72 and 165, 1984; Nos. 65, 166 and 193, 1985; No. 76 and 168, 1986; No. 141, 1987; No. 181, 1987 (as amended by No. 8, 1988); and No. 8, 1988.
12. No. 6, 1903, as amended. For previous amendments, see No. 5, 1906; No. 8, 1907; No. 34, 1910; No. 31, 1912; No. 11, 1914; No. 4, 1915; No. 38, 1920; No. 39, 1926; No. 9, 1927; No. 60, 1932; Nos. 34 and 65, 1933; No. 45, 1934; No. 5, 1937; No. 43, 1939; No. 50, 1940; No. 10, 1946; No. 52, 1947; No. 65, 1948; Nos. 51 and 80, 1950; Nos. 17 and 35, 1955; No. 50, 1959; Nos. 32 and 109, 1960; No. 91, 1965; Nos. 55 and 93, 1966; No. 134, 1968; No. 39, 1969; No. 216, 1973; No. 164, 1976; No. 36, 1978; Nos. 19, 86 and 138, 1979; No. 61, 1981; No. 26, 1982; Nos. 39, 91 and 114, 1983; Nos. 7, 12, 72 and 165, 1984; No. 65, 1985; No. 1, 1986; and No. 38, 1988.
13. No. 91, 1964, as amended. For previous amendments, see No. 152, 1968; No. 216, 1973; No. 91, 1983; and No. 65, 1985.
14. No. 85, 1987, as amended. For previous amendments, see No. 66, 1988.
15. No. 87, 1987, as amended. For previous amendments, see No. 120, 1987.
16. No. 29, 1966, as amended. For previous amendments, see No. 216, 1973; No. 37, 1976; No. 118, 1981; No. 80, 1982; No. 165, 1984; and No. 94, 1986 (as amended by No. 141, 1987).
[Minister’s second reading speech made in—
House of Representatives on 10 November 1988
Senate on 5 December 1988]
