Commonwealth of Australia Explanatory Memoranda

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CIVIL LAW AND JUSTICE LEGISLATION AMENDMENT BILL 2017

                             2016-2017




  THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                              SENATE




CIVIL LAW AND JUSTICE LEGISLATION AMENDMENT BILL 2017




     ADDENDUM TO THE EXPLANATORY MEMORANDUM




                    (Circulated by authority of the
     Attorney-General, Senator the Honourable George Brandis QC)
CIVIL LAW AND JUSTICE LEGISLATION AMENDMENT BILL 2017

NOTES ON CLAUSES

This addendum responds to concerns raised by the Senate Standing Committee for the
Scrutiny of Bills in Scrutiny Digest No.5 dated 10 May 2017.

On page 45, after paragraph 195, insert:

The inclusion of the Australian Border Force Commissioner and an APS employee in the
Department administered by the Minister administering the Australian Border Force
Act 2015 is a continuation of the ability under existing section 122A for officers of the
Australian Border Force to make an arrest when authorised by the Act.

It is envisaged that in practice, only Australian Border Force officers will be authorised by a
court under this subsection. These officers already have arrest powers under other Acts, and
would receive training appropriate to the exercise of those powers. Powers of arrest are
already covered in a number of Australian Border Force operational training courses.

On page 61, after paragraph 304, insert:

Arbitral proceedings are distinct from enforcement proceedings. If the award debtor does not
voluntarily meet its contractual obligation to comply with the terms of the award, the award
creditor may need to commence enforcement proceedings.

The Bill would simplify the procedure for applying to a court for enforcement of an arbitral
award. This provision refers to arbitral proceedings commenced prior to commencement of
the Bill. It does not refer to enforcement proceedings commenced prior to the commencement
of the Bill. The simplified procedure would be available in all enforcement proceedings
commenced after commencement of the Bill, even where the related arbitral proceedings had
commenced prior to the commencement of the Bill. Proceedings for the enforcement of an
existing award sometimes occur shortly after the conclusion of the arbitration, but may also
be delayed by many years. The simplified procedure would be available in enforcement
proceedings which commence after the commencement of the Bill--but which may relate to
arbitral proceedings commenced prior to the Bill's commencement.

This effect is not a retrospective application of law. The substantive rights of the parties
which are determined by the arbitral tribunal and expressed in the arbitral award would not be
impacted by this Bill. The Bill would only alter procedural aspects of enforcement
proceedings which commence after the Bill, which would only come into existence once the
enforcement proceedings are commenced.

To be clear, enforcement proceedings which commence prior to the commencement of the
Bill would be run according to the procedural requirements of the Act in its current form.
The amended provisions would not apply to enforcement proceedings which commence prior
to the Bill but continue after its commencement.




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