ATTORNEY-GENERAL'S PORTFOLIO MISCELLANEOUS MEASURES BILL 2023 Explanatory Memorandum

Commonwealth of Australia Explanatory Memoranda

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ATTORNEY-GENERAL'S PORTFOLIO MISCELLANEOUS MEASURES BILL 2023

2022-2023 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA HOUSE OF REPRESENTATIVES ATTORNEY-GENERAL'S PORTFOLIO MISCELLANEOUS MEASURES BILL 2023 EXPLANATORY MEMORANDUM (Circulated by authority of the Attorney-General, the Honourable Mark Dreyfus KC MP)

ABBREVIATIONS USED IN THE EXPLANATORY MEMORANDUM Acts Interpretation Act Acts Interpretation Act 1901 ASIC Australian Securities and Investments Commission ASIC Act Australian Securities and Investments Commission Act 2001 Bill Attorney-General's Portfolio Miscellaneous Measures Bill 2023 CERD Convention on the Elimination of All Forms of Racial Discrimination CDDP Commonwealth Director of Public Prosecutions Commonwealth Electoral Commonwealth Electoral Act 1918 Act Competition and Competition and Consumer Act 2010 Consumer Act Corporations Act Corporations Act 2001 Cross-Vesting Act Jurisdiction of Courts (Cross-Vesting) Act 1987 Determination Coronavirus Economic Response Package (Modifications--Statutory Declarations and Notices of Intention to Marry) Determination 2021 DPP Act Director of Public Prosecutions Act 1983 Family Law Act Family Law Act 1975 FCFCOA Federal Circuit and Family Court of Australia FCFCOA Act Federal Circuit and Family Court of Australia Act 2021 Federal Court Federal Court of Australia Federal Court Act Federal Court of Australia Act 1976 ICCPR International Covenant on Civil and Political Rights ICESR International Covenant on Economic, Social and Cultural Rights Judiciary Act Judiciary Act 1903 Marriage Act Marriage Act 1961 Native Title Act Native Title Act 1993 NCCP Act National Consumer Credit Protection Act 2009 NOIM Notice of Intended Marriage Privacy Act Privacy Act 1988 Sheriff Sheriff of the Federal Court of Australia SIS Act Superannuation Industry (Supervision) Act 1993 2

ATTORNEY-GENERAL'S PORTFOLIO MISCELLANEOUS MEASURES BILL 2023 GENERAL OUTLINE 1. The purpose of this Bill is to: • 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); • 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); • 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 • 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: • Australian Securities and Investments Commission Act 2001 (ASIC Act); • Corporations Act 2001 (Corporations Act); • Family Law Act 1975; • Federal Circuit and Family Court of Australia Act 2021 (FCFCOA Act); • Federal Court of Australia Act 1976 (Federal Court Act); • Judiciary Act 1903 (Judiciary Act); • Marriage Act; • National Consumer Credit Protection Act 2009 (NCCP Act); • Native Title Act 1993 (Native Title Act); and • Superannuation Industry (Supervision) Act 1993 (SIS Act). Schedule 1--Federal Court criminal jurisdiction 3. Schedule 1 comprises two parts: 3

• 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. • 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. 4

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. 5

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 6

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. 7

Schedule 4--Other amendments 27. Schedule 4 comprises three parts: • 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. • Part 2 will repeal section 213A of the Native Title Act. • Part 3 correct typographical errors: o in the FCFCOA Act, to correctly refer to regulations made under section 285 where appropriate through that Act; and o 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. 8

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: • 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); • 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); • 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 • 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: • Australian Securities and Investments Commission Act 2001 (ASIC Act); • Corporations Act 2001 (Corporations Act); • Family Law Act 1975 (Family Law Act); • Federal Circuit and Family Court of Australia Act 2021 (FCFCOA Act); • Federal Court of Australia Act 1976 (Federal Court Act); • Judiciary Act 1903 (Judiciary Act); • Marriage Act; • National Consumer Credit Protection Act 2009 (NCCP Act); • Native Title Act 1993 (Native Title Act); and • Superannuation Industry (Supervision) Act 1993 (SIS Act). 9

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 10

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: • the right to a fair and public criminal trial (article 14(1) of the International Covenant on Civil and Political Rights (ICCPR)); • minimum guarantees in criminal proceedings (articles 14(3), (5)-(6) and (7) of the ICCPR); and • privacy (article 17(1) of the ICCPR); and • 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 11

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, 12

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: • collection and use of personal information by the Sheriff and State/Territory jury officials; • disclosure of personal information by the Sheriff to the Federal Court, the Australian Federal Police and State/Territory jury officials; • disclosure of personal information by State/Territory jury officials to the Sheriff; and • 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. 13

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: • the right to an effective remedy (article 2(3) of the ICCPR); and • 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. 14

Human rights implications: Schedule 4, Part 2--Assistance from Attorney-General 13. This part engages the following rights: • 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)); • the rights of equality and non-discrimination (articles 1-2 and 4-5 of the CERD); and • 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 15

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: • 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; • 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 • 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. 16

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. 17

ATTORNEY-GENERAL'S PORTOFLIO MISCELLANEOUS MEASURES BILL 2023 NOTES ON CLAUSES Preliminary Clause 1 - Short title 1. This clause provides for the short title of the Act to be the Attorney-General's Portfolio Miscellaneous Measures Act 2023. Clause 2 - Commencement 2. This clause provides for the commencement of specified sections and each schedule to the Bill, as set out in the table. 3. Item 1 in the table provides that sections 1 to 3, which concern the formal aspects of the Bill, as well as anything in the Bill not elsewhere covered by the table, will commence on the day on which the Bill receives Royal Assent. 4. Item 2 in the table provides that schedules 1 and 2, which confers jurisdiction on the Federal Court to hear and determine specified corporate criminal offences and amends the Federal Court Act in relation to jury arrangements for trials on indictment, will commence on the day after the Bill receives Royal Assent. 5. Item 3 in the table provides that parts 1-6 of schedule 3, which will clarify and improve the operation of the Commonwealth Marriage Celebrants Program and provide greater accessibility for marrying couples, will commence on the day after the Bill receives Royal Assent. 6. Item 4 in the table provides that part 7 of schedule 3, which will clarify that authorised celebrants can only be registered in one subdivision of the Marriage Act, will commence on the 28th day after the Bill receives Royal Assent. 7. Item 5 in the table provides that schedule 4, which will make minor and technical amendments to update, clarify and improve the intended operation of other legislation administered by the Attorney-General's Portfolio, will commence on the day after the Bill receives Royal Assent. Clause 3 - Schedules 8. This clause provides that the legislation that is specified in a Schedule to the Bill is amended or repealed as set out according to the applicable items in the Schedule concerned, and any other item in a Schedule to this Bill has effect according to its terms. 18

Schedule 1--Federal Court criminal jurisdiction Part 1--Conferral of criminal jurisdiction 9. This part will amend the: • Australian Securities and Investments Commission Act 2001 (ASIC Act); • Corporations Act 2001 (Corporations Act); • Judiciary Act 1903 (Judiciary Act); • National Consumer Credit Protection Act 2009 (NCCP Act); and • Superannuation Industry (Supervision) Act 1993 (SIS Act); to confer jurisdiction on the Federal Court of Australia (Federal Court) to hear and determine a range of summary and indictable offences relating to entities and conduct within the regulatory remit of the Australian Securities and Investments Commission (ASIC). 10. This jurisdiction of the Federal Court will operate concurrently with the existing jurisdiction of State and Territory courts in relation to these offences. Australian Securities and Investments Commission Act 2001 Item 1 - Section 12HC (at the end of the heading) 11. This item will insert 'for offences against this division etc' at the end of the heading of section 12HC of the ASIC Act. This is a technical amendment to reflect that section 12HC only applies to prosecutions for offences against: • Division 2 of Part 2 of the ASIC Act; or • Part 3 of the ASIC Act in its application in relation to an investigation of a contravention of Division 2 of Part 2. 12. This technical amendment is necessary as item 3 will confer jurisdiction on the Federal Court to hear and determine prosecutions for indictable offences against other provisions of the ASIC Act. Item 2 - At the end of section 12HC 13. This item will insert new subsection 12HC(4) into the ASIC Act to make it clear that the Commonwealth Director of Public Prosecutions' (CDDP) powers under the Director of Public Prosecutions Act 1983 (DPP Act) are not impacted by section 12HC. 14. Current subsection 12HC(3) provides that Federal Court proceedings can only be initiated: 19

• by ASIC or a person authorised in writing by ASIC; or • with the consent in writing of the Minister administering the ASIC Act or a person authorised in writing by that Minister to give such consents. 15. New subsection 12HC(4) will provide, for the avoidance of doubt, that the CDPP's powers under the DPP Act are not impacted by subsection 12HC(3). This subsection will make it clear that the CDPP will be able to institute prosecutions for indictable proceedings in the Federal Court without requiring any written authorisation of ASIC or written consent from the Minister administering the ASIC Act. Item 3 - Before section 243B 16. This item will insert new section 243A into the ASIC Act to confer jurisdiction on the Federal Court to hear and determine prosecutions for all indictable offences against the ASIC Act, other than offences against: • Division 2 of Part 2 of the ASIC Act; or • Part 3 of the ASIC Act in its application in relation to an investigation of a contravention of Division 2 of Part 2. 17. Section 12HC of the ASIC Act provides for the jurisdiction of the Federal Court in relation to the offences excluded from this section. 18. The Federal Court will have jurisdiction to hear and determine a range of indictable offences against the ASIC Act under this section, including: • intentionally or recklessly failing to comply with requirements given by ASIC; • giving false information or evidence to, or otherwise obstructing the exercise of powers, functions and duties of, ASIC; • concealing books relevant to an ASIC investigation; and • breaches of confidentiality requirements or directions. 19. New subsection 243A(3) is consistent with existing section 12HC, which confers jurisdiction in relation to other offences against the ASIC Act, and will provide that Federal Court proceedings can only be instituted: • by ASIC or a person authorised in writing by ASIC; or • with the consent in writing of the Minister administering the ASIC Act or a person authorised in writing by that Minister to give such consents. 20. New subsection 243A(4) will provide, for the avoidance of doubt, that the CDPP's powers under the DPP Act are not impacted by new subsection 243A(3). This subsection will make it clear that the CDPP may institute Federal Court proceedings without requiring any written authorisation of ASIC or written consent from the Minister administering the ASIC Act. 20

21. New section 243A will not impact the existing jurisdiction of State and Territory courts to hear and determine prosecutions for offences against the ASIC Act, as conferred by section 1338B of the Corporations Act. Corporations Act 2001 Item 4 - After section 1338A 22. This item will insert new section 1338AA into the Corporations Act to confer jurisdiction on the Federal Court to hear and determine prosecutions for all indictable offences against the Corporations Act. 23. The Federal Court will have jurisdiction to hear and determine a range of indictable offences against the Corporations Act, including: • contravention of duties and obligations, including by directors, officers, employees, auditors, members, and licensees; • managing a corporation when disqualified; • engaging in conduct which must be licensed or registered without being licensed or registered; • intentionally or recklessly contravening conditions, requirements or directions under regulations, or by ASIC or a relevant court; • contravention of rules relating to management of share capital or assets such as redemption, payment of dividends, capital reduction and dealings with own share capital; • breaching confidentiality requirements or agreements; • failing to keep required financial records and undertake required reporting such as public financial reporting or reporting of certain matters to ASIC; • dishonestly providing or procuring a financial benefit from a public company to a related entity; • voting in a resolution of members as a person or entity who would benefit from the resolution such as a member of key management personnel subject to remuneration report or a related entity to whom it is proposed to provide a financial benefit; • engaging in certain conduct in relation to the external administration of a company such as fraudulent dealings with company assets, avoiding employee entitlements and contravening a direction of a relevant court during examinations about a corporation; and • making certain false, misleading or deceptive statements. 21

24. Existing subsection 1315(1) of the Corporations Act provides that, amongst other things, proceedings for offences against that Act may be instituted: • ASIC or an ASIC delegate; or • a person authorised in writing by the Minister administering the Corporations Act. 25. Existing subsection 1315(3) provides, for the avoidance of doubt, that the CDPP's powers under the DPP Act are not impacted by subsection 1315(1). This subsection makes it clear that the CDPP may institute Federal Court proceedings without any written authorisation of a relevant person. 26. New section 1338A will not impact the existing jurisdiction of State and Territory courts to hear and determine prosecutions for offences against the Corporations Act, as conferred by section 1338B of the Corporations Act. Item 5 - Section 1338B (heading) 27. This item will repeal the heading of section 1338B of the Corporations Act ('Jurisdiction of courts') and substitute a new heading ('Criminal jurisdiction of State and Territory courts'). This is a technical amendment to reflect that section 1338B only applies to the jurisdiction of State and Territory courts. 28. This technical amendment is necessary as item 4 will confer jurisdiction on the Federal Court to hear and determine prosecutions for indictable offences against the Corporations Act. Judiciary Act 1903 Item 6 - Section 2 29. This item will insert a definition into section 2 of the Judiciary Act to provide that related summary offence has the meaning given by new subsection 67G(3) (inserted by item 8). This definition allows for simple cross-referencing to the Judiciary Act by other Acts which may include the same term, such as new provisions to be inserted into the Federal Court Act by items 14, 16-17 and 19 of Part 2 of Schedule 1. Item 7 - Subsection 39B(1A) (note) 30. This item will repeal the note to subsection 39B(1A) of the Judiciary Act and substitute a new note which clarifies that new section 67G of the Judiciary Act (inserted by item 8) and other laws of the Commonwealth confer criminal jurisdiction on the Federal Court. 31. The existing note simply clarifies that this paragraph does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court. It is appropriate to replace the existing note as new section 67G of the Judiciary Act will confer criminal jurisdiction on the Federal Court, whereas previously, criminal jurisdiction was only conferred on the Federal Court by other laws of the Commonwealth. 22

Item 8 - Before Division 1 of Part X 32. This item will insert new section 67G into the Judiciary Act to confer criminal jurisdiction on the Federal Court to hear and determine defined offences. Jurisdiction in relation to related summary offences 33. New subsections 67G(1)-(2) will confer jurisdiction on the Federal Court to hear and determine prosecutions for related summary offences if: • in proceedings before the Federal Court, the person pleads guilty to an indictable offence or the person is found guilty or not guilty of an indictable offence; or • if all charges for an indictable offence against the person before the Federal Court have been discontinued. 34. New subsection 67G(3) will define a related summary offence to be a summary offence against a law of the Commonwealth arising from substantially the same facts and circumstances as those from which an indictable offence, which is within the jurisdiction of the Federal Court, has arisen. 35. These provisions support the efficient resolution of criminal proceedings by enabling the Federal Court to determine both indictable and related summary offences where appropriate. Without jurisdiction for related summary offences, the alternative would likely be for prosecutors to commence new proceedings in a State or Territory court, which would require duplicate evidence disclosure and admission processes. 36. An example of how the related summary offence provisions may work is as follows: • a prosecution is instituted in the Federal Court under new subsection 67G(4) (inserted by this item) for the indictable offence against section 400.7(2) of the Criminal Code of dealing with $1,000 or more in money or other property which are the proceeds of indictable crime and being reckless as to the money or property being proceeds; • the prosecution is discontinued for want of evidence as to the accused's recklessness; • the Federal Court would have jurisdiction to hear and determine the summary offence against section 400.7(3) of the Criminal Code based on the same facts as the indictable offence, but only requiring negligence rather than recklessness. 37. In this example, the Federal Court hearing and determining the summary offence (rather than new proceedings being instituted in a relevant State or Territory court) would promote the efficient administration of justice. 38. These provisions largely mirror subsections 242(1)-(1A) of the Criminal Procedure Act 2009 (Vic) and will have a similar practical effect as the 'back-up offence' and 'related offence' provisions in the Criminal Procedure Act 1986 (NSW) (sections 165 and 167), and the Supreme Court Act 1933 (ACT) (sections 68CA- 68D). 23

Jurisdiction in relation to certain Criminal Code indictable offences 39. New subsection 67G(4) will confer jurisdiction on the Federal Court to hear and determine prosecutions for indictable offences against the Criminal Code which are likely to be relied upon in prosecutions arising from investigations undertaken by ASIC. The offences include bribery of foreign public officials, forgery and related offences, identity crime, money laundering, computer offences, financial information offences, and offences relating to accounting records. 40. New subsection 67G(5) will provide that Federal Court proceedings under subsection 67G(4) can only be instituted: • by ASIC or a person authorised in writing by ASIC; or • with the consent in writing of the Minister administering the ASIC Act or a person authorised in writing by that Minister to give such consents. 41. New subsection 67G(6) will provide, for the avoidance of doubt, that the CDPP's powers under the DPP Act are not impacted by new subsection 67G(5). This subsection will make it clear that the CDPP may institute Federal Court proceedings without any written authorisation of ASIC or written consent from the Minister administering the ASIC Act. 42. New subsections 67G(4)-(6) will not impact the existing jurisdiction of State and Territory courts to hear and determine prosecutions for the identified offences against the Criminal Code, as conferred by subsection 68(2) of the Judiciary Act. Relationship with associated matters jurisdiction 43. New subsection 67G(7) will operate to clarify that the Federal Court's associated matters jurisdiction, under subsection 32(4) of the Federal Court Act, is not limited by the new related summary offence jurisdiction. The associated matters jurisdiction gives the Federal Court extended jurisdiction to deal with matters that are associated with a matter that is before it where those associated matters are not otherwise within the jurisdiction of the Federal Court. Associated matters must arise under Commonwealth law and relate to one or more indictable offence before the Federal Court. National Consumer Credit Protection Act 2009 Item 9 - Before section 204 44. This item will insert new section 203A into the NCCP Act to confer jurisdiction on the Federal Court to hear and determine prosecutions for all indictable offences against the NCCP Act. 45. The Federal Court will have jurisdiction to hear and determine a range of indictable offences against the NCCP Act, including: • engaging in conduct which must be licensed without being licensed or if subject to a banning order or conducting business with unlicensed persons; 24

• contravention of duties and obligations under the NCCP Act; • failing to keep required records such as financial and compliance records, and undertake required reporting such as reporting of certain matters to ASIC; • obstructing an audit, including refusing or failing to provide access or assistance; • suggesting or assisting consumers to enter, increase credit limit under, or remain in, unsuitable credit contracts or consumer leases, or entering with consumers such contracts or leases; • giving materially false or misleading information in the course of engaging in a credit activity; • concealing books relevant to an ASIC investigation; and • failing to comply with product intervention orders. 46. Existing section 274 of the NCCP Act provides that, amongst other things, proceedings for offences against the NCCP Act may be instituted by ASIC. 47. Existing subsection 274(8) provides, for the avoidance of doubt, that the CDPP's powers under the DPP Act are not impacted by section 274. This subsection makes it clear that the CDPP may institute Federal Court proceedings without any written authorisation of ASIC. 48. New section 203A will not impact the existing jurisdiction of State and Territory courts to hear and determine prosecutions against the NCCP Act, as conferred by section 204 of the NCCP Act. Item 10 - Section 204 (heading) 49. This item will repeal the heading of section 204 of the NCCP Act ('Criminal jurisdiction of courts') and substitute a new heading ('Criminal jurisdiction of State and Territory courts'). This is a technical amendment to reflect that section 204 only applies to the jurisdiction of State and Territory courts. 50. This technical amendment is necessary as item 9 will confer jurisdiction on the Federal Court to hear and determine prosecutions for indictable offences against the Corporations Act. Superannuation Industry (Supervision) Act 1993 Item 11 - Before section 202 51. This item will insert new section 201A into the SIS Act to confer jurisdiction on the Federal Court to hear and determine prosecutions for indictable offences against provisions of the SIS Act which are administered by ASIC. 52. Sections 5-6 of the SIS Act set out the responsibility for administration of the SIS Act, including which provisions are administered by each regulator (being the 25

Commissioner of Taxation, the Australian Prudential Regulation Authority and ASIC). 53. By reference to sections 5-6, the Federal Court will have jurisdiction to hear and determine a range of indictable offences under this section, including relating to: • victimisation against certain superannuation entity trustees; • knowingly acting as trustee, investment manager of custodian, or as a responsible officer of body corporate who is fulfilling one of these roles, of a superannuation entity while disqualified; • issuing or offering, or participating in the issuing or offering of, superannuation interests in public offer entities when not allowed; • intentionally or recklessly refusing or failing to comply with certain requirements made by ASIC under the SIS Act; and • concealing books relevant to an ASIC investigation. 54. New section 201A of the SIS Act will confer jurisdiction by reference to provisions administered by ASIC to ensure it will not require amendment if new indictable offences are established in the future. 55. New section 201A will not impact the existing jurisdiction of State and Territory courts to hear and determine prosecutions for offences against the SIS, as conferred by section 68(2) of the Judiciary Act. Item 12 - After section 324A 56. This item will insert new section 324B into the SIS Act to provide that Federal Court proceedings for an offence against a provision of the NCCP Act can only be instituted: • by the Regulator, as set out by sections 5-6 of the SIS Act, or a person authorised in writing by the Regulator; or • with the consent in writing of the Minister administering the SIS Act or a person authorised in writing by that Minister to give such consents. 57. New subsection 324B(3) will provide, for the avoidance of doubt, that the CDPP's powers under the DPP Act are not impacted by new subsections 324B(1)-(2). This subsection will make it clear that the CDPP may institute Federal Court proceedings without any written authorisation of ASIC or written consent from the Minister administering the SIS Act. Part 2--Criminal Procedure 58. This part will make minor technical and procedural amendments to the Corporations Act, Federal Court Act, Judiciary Act and NCCP Act. These 26

amendments support the exercise of jurisdiction by the Federal Court conferred by part 1. Corporations Act 2001 Item 13 - At the end of subsection 1338A(3) 59. This item will amend subsection 1338A(3) of the Corporations Act to make it clear, for the avoidance of doubt, that division 2 of part 9.6A of the Corporations Act does not limit the operation of sections 68A-68D of the Judiciary Act. 60. Division 2 of part 9.6A of the Corporations Act sets out the jurisdiction of, and laws to be applied by, a State or Territory court in prosecutions for offences against the Corporations Act and ASIC Act. 61. Existing section 68A of the Judiciary Act sets out the procedural laws to apply, with modification in the case of State and Territory laws, to committal proceedings if both the Federal Court and a State or Territory court have jurisdiction in relation to the indictable offence. 62. Existing section 68B of the Judiciary Act provides that State and Territory procedural laws are applied to indictable offence proceedings if both the Federal Court and a State or Territory court have jurisdiction. 63. Existing section 68C of the Judiciary Act provides that State and Territory procedural laws are applied, with modification, to indictable offence proceedings before the Federal Court, to the extent to which those laws are not inconsistent with Commonwealth law or the Rules of the Federal Court. 64. New section 68D of the Judiciary Act (inserted by item 23) will provide that State and Territory procedural laws are applied, with modification, to related summary offence proceedings before the Federal Court, to the extent to which those laws are not inconsistent with Commonwealth law or the Rules of the Federal Court. Federal Court of Australia Act 1976 Item 14 - Section 4 65. This item will insert a definition into section 4 of the Federal Court to provide that related summary offence has the same meaning as in the Judiciary Act. Item 6 of part 1 inserts the definition into section 2 of the Judiciary Act. The term is defined as having the meaning given by new subsection 67G(3) of the Judiciary Act (inserted by item 8 of part 1). Item 15 - Repeal subsection 23AB(4) (including the note) 66. This item will repeal existing subsection 23AB(4) of the Federal Court Act, including the note. Section 23AB, prior to repeal, details the application of division 1A of part III of the Federal Court Act, which sets out the procedures to be following during criminal proceedings in the Federal Court relating to indictable offences. 27

Subsection 23AB(4) limits the application of this division to certain indictable offences. 67. This subsection is repealed to ensure that consistent procedures apply to all criminal proceedings in the Federal Court relating to indictable offences. The effect of repealing this subsection is that division 1A of part III will apply to all indictable proceedings in the Federal Court. Repealing this subsection also reduces the burden of making future legislative amendments if, in a future Act, it is considered appropriate to confer additional criminal jurisdiction on the Federal Court to hear and determine other indictable offences. Item 16 - After Division 1A of Part III 68. This item will insert new division 1B into part III of the Federal Court Act, which will set out the practice, procedure and evidence for the related summary offence jurisdiction of the Federal Court conferred by new sections 67G(1)-(2) of the Judiciary Act (inserted by item 8 of part 1). Division 1B--Original jurisdiction (related summary offences) Section 23K - Practice and procedure applicable to proceedings for related summary offences 69. This section will provide that, unless the Federal Court orders otherwise, the rules of practice and procedure that apply at trial are those in force at the time the draft summons for the related summary offence is filed with the Federal Court. 70. The effect of this provision is that if a procedural rule changes after a draft summons has been filed, the Federal Court will apply the old procedure rather than the new one unless it makes an order to the contrary. The Federal Court may make an order to the contrary if, for example, a change to a procedural rule has the potential to benefit the accused or to shorten a proceeding in a way that does not prejudice the accused. 71. This section will ensure that an accused will not suffer prejudice if changes are made to a procedural rule after the draft summons has been filed. Section 23L - Evidence in proceedings for related summary offences 72. This section will set out the evidence that may be admitted by the Federal Court in proceedings for the prosecution for a related summary offence, depending on the circumstances leading to the related summary offence proceedings. Further evidence may be adduced by either party with the leave of the Federal Court. 73. In all cases, evidence given during a trial for the indictable offence may be admitted by the Federal Court. This provision allows the Federal Court to admit any evidence already before it that is relevant to the prosecution for a related summary offence. 74. In the case of a guilty plea or discontinuance, evidence given by witnesses and documents tendered in evidence during the committal proceedings for the indictable offence may be admitted by the Federal Court, notwithstanding that committal proceedings will be heard in State and Territory courts. An accused may plead guilty 28

at any time before a jury renders its verdict and the prosecutor may enter a discontinuance for a number of reasons, including where the evidence is insufficient to support the indictable offence but supports a related summary offence. In both cases, committal evidence may be relevant to a prosecution for a related summary offence, and this provision allows the Federal Court to admit evidence that is relevant to the prosecution for a related summary offence. 75. This provision largely mirrors subsections 242(3)-(4) of the Criminal Procedure Act 2009 (Vic) and will have a similar practical effect as the evidence provisions relating to 'back-up offences' and 'related offences' in the Supreme Court Act 1933 (ACT) (subsections 68E(1)-(2)) and Criminal Procedure Act 1986 (NSW) (subsections 168(1)- (2)). Item 17 - After Subsection 30AA(2) 76. This item will insert new subsection 30AA(2A) into the Federal Court Act to confer jurisdiction on the Federal Court to hear and determine appeals from a judgment of the Court constituted by a single Judge in proceedings for a related summary offence. This subsection is required to establish an effective and efficient appeal pathway within the Federal Court in relation to the related summary offence jurisdiction conferred by section 67G of the Judiciary Act (inserted by item 8 of part 1). 77. This subsection is consistent with the Federal Court's existing appellate jurisdiction for summary judgments heard by the Federal Court constituted by a single Judge in proceedings to try an offence summarily (subsection 30AA(2)). Item 18 - At the end of subsection 30BF(1) 78. This item will make a minor and technical amendment to subsection 30BF(1) of the Federal Court Act to ensure that section 30BF applies to the Federal Court's jurisdiction to hear and determine appeals against summary judgments, including under subsection 30AA(2A) (inserted by item 17). 79. Section 30BF details the powers of the Federal Court in relation to this appellate jurisdiction, including: • for an appeal against conviction, set aside the conviction, and record an acquittal or remit the matter to the court of first instance; • for an appeal against a sentence, vary or substitute the sentence; and • for an appeal against acquittal, set aside the acquittal, and record a conviction or remit the matter to the court of first instance. Item 19 - At the end of section 32AD 80. This item will insert new section 32AE into the Federal Court Act to provide for proceedings in relation to corporate crime offences to be transferred between courts. This provision is intended to support the concurrent conferral of corporate criminal jurisdiction enabled by part 1 of this schedule. In particular, the purpose of this provision is to enable proceedings to be moved across the Australian court system to 29

the most appropriate forum and venue, having regard to the interests of justice, to support the effective and efficient administration of justice. 81. As detailed below, the transfer scheme established by this provision is largely consistent with the transfer scheme established in relation to non-criminal proceedings by the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cross-Vesting Act). 82. Subsection 32AE(1) will provide that this section applies to proceedings in the Federal Court or a State or Territory court if all or part of the proceedings are for a corporate crime offence. Subsection 32AE(9) will define a corporate crime offence to be those offences which the Federal Court has jurisdiction to hear and determine as a result of amendments made by part 1 of this schedule. These offences are those most likely to be relied upon in prosecutions arising from investigations undertaken by ASIC. 83. Subsection 32AE(2) will provide that the court before which the proceedings are being heard (the first court) may transfer part or all of the proceedings to another court (the second court) if it is more appropriate for it to be determined by the second court. The second court must have jurisdiction to hear and determine the proceedings, as nothing in section 32AE confers jurisdiction on any court. This is clarified, for the avoidance of doubt, by subsection 32AE(8). 84. Paragraph 32AE(3)(a) will provide that, in considering whether to transfer all or part of the proceedings, the first court must have regard to the interests of justice. There is no defined set of criteria for assessing the interests of justice. Rather, the court should assess the interests of justice on a case-by-case basis, having regard to all relevant circumstances. 85. Subsection 32AE(2) and paragraph 32AE(3)(a), taken together, are largely consistent with the test to be applied by a court considering whether to transfer a proceeding, other than a criminal proceeding, to another court under section 5 of the Cross-Vesting Act. 86. Paragraph 32AE(3)(b) will provide that the first court must also have regard to any laws of the State or Territory in which it is located that provide for particular courts of that State or Territory to hear and determine the proceedings. The intent of this paragraph is to reduce the possibility of proceedings being transferred to a court of a State or Territory which would be inconsistent with: • a law of that State or Territory; or • a direction made by the Chief Justice (if so empowered) of that State or Territory. 87. Subsection 32AE(4) will provide that the court may transfer a proceeding on application by the prosecutor or 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. 88. To ensure that a transfer under subsection 32AE(2) can be executed without any doubt as to the validity of actions by the first and second courts: 30

• subsection 32AE(5) will provide that the first court may make any orders it considers necessary pending the disposal of the proceedings, and that further proceedings must be as directed by the second court; and • subsection 32AE(6) will provide that the second court may order, in effect, that everything done in order by the first court had been done in or by the second court. 89. Subsection 32AE(6) is consistent with subsection 11(3) of the Cross-Vesting Act, which sets out how proceedings are to be conducted if transferred under that Act. 90. Subsection 32AE(7) will provide that the decision of a court to transfer, or not transfer, proceedings is not appealable. This provision is consistent with section 13 of the Cross-Vesting Act, which provides that no appeal lies from a decision to transfer, or not transfer, proceedings under that Act. Item 20 - After paragraph 35A(1)(e) 91. This item will insert new paragraph 35A(1)(ea) into the Federal Court Act to allow the power to make orders under section 32AE (inserted by item 19) to be exercised by a Registrar if directed by the Federal Court. Section 32AE deals with the transfer of proceedings for corporate crime offences to another court. 92. This amendment is consistent with the Federal Court's power under subsection 35A(1) to direct certain procedural powers to be exercised by a Registrar. Allowing procedural powers to be exercised by a Registrar supports the effective and efficient operation of the Federal Court. 93. Existing subsections 35A(5)-(6) provide that an exercise of power by a Registrar under subsection 35A(1) is reviewable by the Federal Court. These provisions are consistent with the principles associated with delegation of judicial power or function, which require that delegated power is subject to review. Judiciary Act 1903 Item 21 - Subsection 68B(2) 94. This item will insert 'and 68D' at the end of subsection 68B(2) of the Judiciary Act. This technical amendment is necessary to clarify that new section 68D (inserted by item 23) sets out adjustments to procedural State and Territory laws applying for related summary offences before the Federal Court notwithstanding anything in paragraph 68B(1)(b). 95. Paragraph 68B(1)(b) provides that State and Territory criminal procedure laws are to be applied in proceedings in the Federal Court, or a State or Territory court, in relation to an offence against Commonwealth law. 96. Amended subsection 68B(2) will clarify, for the avoidance of doubt, that procedural State and Territory laws are to be adjusted in proceedings in the Federal Court in relation to an indictable or related summary offence against the Commonwealth by section 68C or 68D, as the case may be. 31

Item 22 - Section 68C (heading) 97. This item will insert 'indictable primary' into the heading of section 68C of the Judiciary Act so that the heading reads 'Adjustments to State and Territory laws applying to indictable primary proceedings before Federal Court of Australia'. This is a technical amendment to reflect that section 68C only applies to prosecutions for indictable offences. 98. This technical amendment is necessary as new section 68D (inserted by item 23) will apply in relation to related summary offences. Item 23 - At the end of Division 1 of Part X 99. This item will insert new section 68D into the Judiciary Act to set out adjustments to procedural State and Territory laws applying for related summary offences before the Federal Court. It largely mirrors subsections 68C(1) and (5)-(8) of the Judiciary Act, which sets out adjustments to procedural State and Territory laws applying for indictable offences before the Federal Court. 100. Subsection 68D(1) will apply if an offence referred to in subsection 68(1) is a related summary offence, the Federal Court has jurisdiction to try a person for the offence, and proceedings commence in the Federal Court in relation to the offence. 101. Subsection 68D(2) will include a table which sets out which State or Territory laws are to be applied under subsection 68(1) in proceedings before the Federal Court. 102. Item 1 of the table will provide that in primary proceedings other than sentencing proceedings (for example a trial or a pre-trial hearing), the laws to be applied are the laws of the State or Territory in which the Federal Court hears the proceedings. 103. Item 2 of the table will provide that in primary proceedings for the sentencing of the person following a trial in the Federal Court, the laws to be applied are the laws of the State or Territory that applied to the trial at the end of the trial. This means that if the Federal Court deals with sentencing in a different State or Territory from where the trial was held, the laws to be applied are the laws of the State or Territory where the trial was held, not where the sentencing proceedings are held. It also means that if laws are changed during the course of the trial, it is the laws that applied at the end of trial which will apply to the sentencing proceedings. 104. Item 3 of the table will provide that in appeal proceedings that relate to the primary proceedings, the laws to be applied are the State or Territory laws that applied to the primary proceedings that applied at the end of those proceedings. This means that if the Federal Court hears an appeal in a different State or Territory from where the appealed decision was made, the laws to be applied are the laws of the State or Territory where the decision was made, not where the appeal is being held. It also means that if laws are changed during the course of the trial or other primary proceedings, it is the laws that applied at the end of the trial or other primary proceedings which will apply to the appeal hearing. 105. Item 4 of the table will provide that in proceedings relating to a case stated or question reserved by a court, the laws to be applied are the laws of the State or Territory 32

applying in the proceedings during which the court stated the case or reserved the question. This means, for example, that if a case is stated or a question is reserved by a single judge in the court of trial, the Federal Court will apply the laws that applied to the trial even if the matter is dealt with in a different State or Territory. 106. Subsection 68D(3) will provide that the laws of the State or Territory that apply to the proceedings before the Federal Court include the Rules of the Supreme Court of that State or Territory that apply in relation to criminal proceedings but are not to include the rules of any other court of the State or Territory. That means that the Rules of a District or County Court, or a Magistrates or Local Court of a State or Territory, do not apply to proceedings before the Federal Court. 107. Subsection 68D(4) will provide that the laws of the State or Territory apply as if any reference in those laws to the Supreme Court of that State or Territory, and any reference to a court that includes a reference to that Supreme Court, were a reference to the Federal Court. 108. Subsection 68D(5) will clarify that the laws of the State or Territory apply only to the extent to which they are not inconsistent with Commonwealth law or the Rules of the Federal Court. Item 24 - Subsection 70(2) 109. This item will insert 'and 68D' at the end of subsection 70(2) of the Judiciary Act. This technical amendment is necessary to clarify that new section 68D (inserted by item 23) sets out adjustments to procedural State and Territory laws applying for related summary offences before the Federal Court notwithstanding anything in paragraph 70(2). 110. Subsection 70(1) sets out that where the commission of an offence began in one State or Territory and completed in another, proceedings to deal with the offence may occur in either State or Territory as if the offence had been wholly committed within that State or Territory. 111. Amended subsection 70(2) will clarify, for the avoidance of doubt, that the determination of venue for relevant proceedings in the Federal Court may be subject to procedural State and Territory laws, as adjusted by sections 68C or 68D. National Consumer Credit Protection Act 2009 Item 25 - At the end of subsection 203(2) 112. This item will amend subsection 203(2) of the NCCP Act to make it clear, for the avoidance of doubt, that division 3 of part 4-3 of the NCCP Act does not limit the operation of sections 68A-68D of the Judiciary Act. 113. Division 3 of part 4-3 of the NCCP Act sets out the jurisdiction of, and laws to be applied by, a State or Territory court in prosecutions for offences against the NCCP Act. 33

114. Existing section 68A of the Judiciary Act sets out the procedural laws to apply, with modification in the case of State and Territory laws, to committal proceedings if both the Federal Court and a State or Territory court have jurisdiction in relation to the indictable offence. 115. Existing section 68B of the Judiciary Act provides that State and Territory procedural laws are applied to indictable offence proceedings if both the Federal Court and a State or Territory court have jurisdiction. 116. Existing section 68C of the Judiciary Act provides that State and Territory procedural laws are applied, with modification, to indictable offence proceedings before the Federal Court, to the extent to which those laws are not inconsistent with Commonwealth law or the Rules of the Federal Court. 117. New section 68D of the Judiciary Act (inserted by item 23) will provide that State and Territory procedural laws are applied, with modification, to related summary offence proceedings before the Federal Court, to the extent to which those laws are not inconsistent with Commonwealth law or the Rules of the Federal Court. Schedule 2--Federal Court juries 118. This schedule will amend the Federal Court Act to improve the efficiency of jury preparation processes for primary indictable proceedings in the Federal Court. This will be achieved by enabling the Sheriff of the Federal Court (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. Relevant State and Territory laws will apply to the actions of the State/Territory jury official. 119. The Sheriff will: • maintain their existing power to directly prepare a jury panel; and • determine which approach for preparing a jury panel is adopted on a case-by-case basis. Federal Court of Australia Act 1976 Items 1-2 and 4 - Section 4 definitions 120. These items will make consequential amendments to the definitions of applicable jury district (item 1), jury district (item 2) and sitting place (item 4) in section 4 to update cross references to relevant operative provisions which will be renumbered by items 6-7, but not otherwise amended, as set out in the following table. New cross reference Repealed cross Relevant definition provision reference provision Subsection 23DC(2) Subsection 23DK(2) Sitting place (item 4) Section 23DH Section 23DL Applicable jury district (item 1) 34

New cross reference Repealed cross Relevant definition provision reference provision Subsection 23EAA(1) Section 23DF Jury district (item 2) Item 3 - Section 4 new definitions 121. This item will insert new definitions into section 4 of the Federal Court Act for: • jury list, which has the meaning given by subsection 23DH(2) (inserted by item 6); • jury roll, which means a jury roll prepared under subsection 23EAA(4) (inserted by item 7); and • Sheriff, which means the Sheriff of the Federal Court, who is appointed under section 18N(1)(c). 122. Although these terms are used extensively throughout the existing provisions of the Federal Court Act, they are not expressly defined in the existing section 4. Defining these terms aids in the interpretation of the Federal Court Act. Item 5 - Section 4 new definition of State/Territory jury official 123. This item will insert a new definition for a State/Territory jury official into section 4 of the Federal Court Act. The term will mean a specified person who is responsible for preparing jury panels for trials on indictment of an offence in the Supreme Court of the State or Territory. The specified persons for this definition are: • an officer or staff member of the Supreme Court of the State or Territory; or • an officer or employee of the State or Territory. 124. This definition is necessary to provide for a simple description of persons required or allowed to undertake functions to provide a jury panel to the Sheriff under new subdivision DB of division 1A of part III of the Federal Court Act (inserted by item 6). Item 6 - Subdivision D of Division 1A of Part III 125. This item will repeal subdivision D of division 1A of part III of the Federal Court Act which sets out the procedures for preparing a jury panel and empanelling a jury, and replaces it with five new subdivisions: • replacement subdivision D will provide for the Sheriff to elect whether a jury panel is prepared under new subdivisions DA or DB; • new subdivision DA will set out the procedures for the Sheriff to prepare a jury panel under the Federal Court Act, which largely replicate existing provisions; 35

• new subdivision DB will set out the procedures for a State/Territory jury official to prepare and provide a jury panel to the Sheriff; • new subdivision DC will set out the liability of persons to serve on a jury in the Federal Court and the Sheriff's powers of excusal, which largely replicate existing provisions; and • new subdivision DD will set out the procedures for empanelling a jury, which largely replicate existing provisions. Subdivision D--Election in relation to a jury panel Section 23DA - Simplified outline of this Subdivision 126. This section will contain a simplified outline of subdivision D of division 1A of part III of the Federal Court Act. The simplified outline is included to assist readers to understand the substantive provisions of the subdivision. The outline is not intended to be comprehensive. Readers should rely on the substantive provisions of the subdivision. Section 23DB - Application of Subdivision 127. This section will provide that the subdivision applies in relation to juries for indictable primary proceedings. Section 23DC - Direction to arrange for a jury panel 128. This section will replicate repealed section 23DK, without amendment other than the heading (previously 'When Sheriff is to convene a jury panel'). Consistent with repealed section 23DK, this section will: • enable the Federal Court to given a written direction to the Sheriff to convene a jury panel; • require a written direction to specify the place where the jury is to sit; and • require the Sheriff to comply with the written direction. Section 23DD - Election in relation to a jury panel 129. Subsection 23DD(1) will provide that this section applies if the Federal Court gives the Sheriff a direction under subsection 23DC(1). 130. Subsection 23DD(2) will require the Sheriff to elect whether to prepare a jury panel under subdivision DA or request the relevant State/Territory jury official to provide a jury panel under subdivision DB. The election must be made in writing to the Chief Executive Officer of the Federal Court. 131. Subsection 22DD(3) will clarify, for the avoidance of doubt, that the Sheriff's election is not a legislative instrument; it is an instrument of administrative character that will apply but not determine the law. Subsection 33(3) of the Acts Interpretation Act 1901 36

(Acts Interpretation Act) provides that a power to make (however described) an administrative instrument includes the power to revoke or vary (however described) the instrument, subject to the conditions of the power. This means that the Sheriff may revoke or vary the election made under subsection 23DD(1) and elect to apply the other available subdivision. Section 23DE - Validity of anything done by jury 132. This section will provide that anything done by a jury is not invalid merely because of any defect or irregularity in the provision of a jury panel to the Federal Court, including: • the preparation of a jury panel by the Federal Court under new subdivision DA; • the preparation of a jury panel by a State/Territory jury official and provision of the jury panel to the Sheriff under subdivision DB; or • dealings by the Sheriff of a jury panel prepared and provided by a State/Territory jury official before it is provided to the Federal Court. 133. This provision will ensure that the outcome of a trial cannot be set aside solely on the grounds that the Sheriff and/or State/Territory jury official did not comply with any technical procedures when preparing and providing a jury panel, as the case may be, and supports certainty for the defendant and the public. Subdivision DA--Provision of a jury panel prepared under this Act 134. This subdivision will set out the procedures for the Sheriff to prepare a jury panel under the Federal Court Act and largely replicates provisions in repealed subdivision D. The following table sets out which repealed provision the new section replicates (if applicable), and any changes made in the new section. Further detail on provisions and changes follow the table. New section Repealed Changes provision 23DF Simplified outline of this Subdivision N/A New provision incorporating relevant information from repealed section 23DA 23DG Application of Subdivision N/A New provision 23DH Sheriff to select the jury district for 23DL New note to subsection (1) inserted the proceedings 37

New section Repealed Changes provision 23DJ Sheriff to prepare the jury list for the 23DM Minor amendment to subsection (1) for proceedings clarity New note 1 to subsection (2) inserted Notes 2-3 to subsection (2), which were notes 1-2 to repealed subsection 23DM(2), renumbered All cross references updated to reflect new numbering of replacement provisions 23DK Investigation and questionnaires 23DN New notes to subsection (1) inserted Minor amendments to subsections (5)- (6), which replace repealed subsection 23DN(5) Subsections (7)-(8), which replace repealed subsections 23DN(6)-(7), renumbered All cross references updated to reflect new numbering of replacement provisions 23DL Qualification to serve as a juror 23DH(1) Minor amendments to improve readability Notes to repealed subsection 23DH(1) not included All cross references updated to reflect new numbering of replacement provisions 23DM Disqualification from serving on 23DI Nil jury (convictions, charges, detention orders etc) 23DN Disqualification from serving on jury 23DJ Nil (professional ineligibility) 23DP Removing names from jury list 23DO All cross references updated to reflect new numbering of replacement provisions 23DQ Jury summonses 23DP Nil 38

New section Repealed Changes provision 23DR Preparing the jury panel 23DS Nil Section 23DF - Simplified outline of this Subdivision 135. This section will contain a simplified outline of subdivision DA of division 1A of part III of the Federal Court Act. The simplified outline is included to assist readers to understand the substantive provisions of the subdivision. The outline is not intended to be comprehensive. Readers should rely on the substantive provisions of the subdivision. Section 23DG - Application of Subdivision 136. This section will provide that subdivision DA applies in relation to juries for indictable primary proceedings where the Sheriff has made an election under subsection 23DD(2) that this subdivision is to apply. The remaining provisions of this subdivision will not apply where the Sheriff has made an election under subsection 23DD(2) that subdivision DB is to apply. Section 23DH - Sheriff to select the jury district for the proceedings 137. This section will replicate repealed section 23DL, without amendment other than inserting a new note to subsection 23DH(1) which directs readers to the relevant provision about the determination of jury districts. Jury districts are determined under subsection 23EAA(1) (inserted by item 7). 138. Consistent with repealed subsection 23DL(1), subsection 23DH(1) will provide that the Sheriff must determine, in writing, which jury district is to apply to the proceedings. This can be the jury district, if any, that includes the sitting place, or another jury district which is in the same State or Territory, and near the, sitting place. 139. In most cases, it is likely the Sheriff will select the jury district that includes the sitting place to ensure that potential jurors do not have to travel a long distance to attend court. However, subsection 23DH(1) will provide the Sheriff with flexibility to select another jury district. For example, this may be necessary where the sitting place is not included in any jury district, or the jury district in which the sitting place is located has been used to convene juries in several recent trials meaning it may be difficult to convene another jury from within that jury district. 140. Consistent with repealed subsection 23DL(2), subsection 23DH(2) will clarify, for the avoidance of doubt, that the Sheriff's determination is not a legislative instrument; it is an instrument of administrative character that will apply but not determine the law. Subsection 33(3) of the Acts Interpretation Act provides that a power to make (however described) an administrative instrument includes the power to revoke or vary (however described) the instrument, subject to the conditions of the power. This means that the Sheriff may vary the determination made under subsection 23DH(1) by substituting an alternative jury district. For example, the Sheriff may vary the determination if the Federal Court changes the sitting place where the jury is to sit. 39

Section 23DH - Sheriff to prepare the jury list for the proceedings 141. This section will replicate repealed section 23DM, with minor amendments for clarity and consequential amendments to update cross references to provisions which are renumbered by this item. 142. Consistent with repealed section 23DM, this section will require the Sheriff to prepare a jury list. The jury list consists of names, addresses, if available to the Sheriff, dates of birth and sex of persons selected at random from the jury roll of the jury district determined under section 23DH. Jury rolls are determined under subsection 23EAA(4) (inserted by item 7) and the Sheriff may remove a person's name from the jury list in certain circumstances under section 23DP (inserted by this item). 143. Consistent with repealed subsection 23DM(4), subsection 23DJ(4) will provide that the number of persons on the jury list is to be the number the Sheriff thinks is adequate to allow a jury to be empanelled. The Sheriff will ordinarily have regard to a range of matters when determining this number, including the likely length of the trial and the number of persons who may be unlikely to be able to perform jury service. 144. Consistent with repealed subsection 23DM(5), subsection 23DJ(4) will empower the Sheriff to add additional persons to the jury list, after it is prepared, if the Sheriff thinks the number of persons is no longer adequate to allow a jury to be empanelled. This may occur, for example, if more persons are excused from jury service than is expected. The additional persons selected under this subsection must not have been summonsed for the jury under section 23DQ (inserted by this item) and must be selected at random from the applicable jury district. 145. Consistent with repealed subsection 23DM(6), subsection 23DJ(6) will clarify, for the avoidance of doubt, that a jury list is not a legislative instrument; it is an instrument of administrative character that will apply but not determine the law. Section 23DK - Investigation and questionnaires 146. This section will replicate repealed section 23DN, with minor amendments for clarity and consequential amendments to update cross references to provisions which are renumbered by this item. 147. Consistent with repealed section 23DN, this section will empower the Sheriff to make enquiries, before issuing summonses, to determine whether a person included on the jury list is not qualified to serve as a juror (as provided for by sections 23DL-23DN, inserted by this item) or should otherwise be excused (as provided for by sections 23DZD-23DZE, inserted by this item). The inquiries can be in the form of a questionnaire to some or all of the persons included in the jury list. Other forms of inquiry may be adopted by the Sheriff. Under section 28A(1)(a) of the Acts Interpretation Act the Sheriff may send the questionnaire to a person by delivering it to them personally (that is, by hand) or leaving it at or sending it by post to the address of the person's place of residence or business last known to the Sheriff. 148. Consistent with repealed subsection 23DN(3), subsection 23DK(3) will provide that a person who receives a questionnaire must complete and return it to the Sheriff within 40

14 days. It is an offence under section 58E of the Federal Court Act to not return, or properly complete, a questionnaire. Section 29 of the Acts Interpretation Act provides that, subject to the Sheriff properly addressing, prepaying and posting the questionnaire, the person will be taken to have received at the time at which it would be delivered in the ordinary course of post. 149. Consistent with repealed subsection 23DN(4), subsection 23DK(3) will clarify that a person who fails to return a questionnaire may still be included in the jury list. This means that a person cannot avoid jury service simply by failing to return a questionnaire. 150. Consistent with repealed subsection 23DN(5), subsections 23DK(5)-(6) will allow the Sheriff to request information from the Commissioner of the Australian Federal Police about the criminal history of any person included in the jury list. If requested, the Commissioner must give the requested information to the Sheriff. Section 85ZZL of the Crimes Act 1914 requires the Australian Federal Police to include information about spent convictions when complying with a request from the Sheriff. This provision supports the Sheriff to determine whether a person is disqualified from serving as a juror because of their criminal history under section 23DL (inserted by this item). 151. Consistent with repealed subsection 23DN(6), subsection 23DK(7) will empower the Sheriff to give to the Federal Court any information obtained from the Australian Federal Police about a person on the jury list. While there is no need to pass the information to the Federal Court where the Sheriff removes the person from the jury list because of a disqualification under section 23DP (inserted by this item), there may be instances where the Sheriff considers that the Federal Court should be aware of information even though it does not provide a basis for removal. This could include where a potential juror has a criminal history that does not disqualify them from jury service under proposed section 23DM, but which may be similar to the conduct alleged against the accused, and therefore may satisfy the Federal Court that it is not appropriate for them to serve on the jury. In such a case, the Federal Court may excuse the potential juror under proposed section 23DZK. 152. Consistent with repealed subsection 23DN(7), subsection 23DK(8) restricts the disclosure of information obtained from the Australian Federal Police by the Sheriff. The Sheriff must not disclose the information except to the Federal Court or otherwise for the purposes of the Federal Court Act. This provision ensures that disclosure of this information by the Sheriff complies with the Privacy Act 1988 (Privacy Act). Subclause 6.2(b) of Schedule 1 of the Privacy Act allows a person to disclose personal information it collects if the disclosure is required or authorised by an Australian law. Section 23DL - Qualification to serve as a juror 153. This section will replicate repealed subsection 23DH(1), with minor amendments for clarity and consequential amendments to update cross references to provisions which are renumbered by this item. 154. Consistent with repealed subsection 23DH(1), this section will provide that a person is qualified to serve as a juror if that person's name is on the jury roll for the applicable jury district and the person is entitled to vote at elections of Members of the House of 41

Representatives in accordance with subsection 93(2) of the Commonwealth Electoral Act 1918 (Commonwealth Electoral Act). 155. This section is subject to sections 23DM-23DN (inserted by this item and replacing repealed sections 23DI-23DJ), which set out when a person is disqualified from serving as a juror. Section 23DM - Disqualification from serving on jury (convictions, charges, detention orders etc.) 156. This section will replicate repealed section 23DI, without amendment, and sets out when a person is disqualified from serving as a juror because of their criminal history. Not everyone who has been convicted of an offence is disqualified from jury service. There is a balance between the need to protect the integrity of the jury process and a recognition that a jury should be drawn from as wide a range of the community as is reasonably practicable. 157. Consistent with repealed subsection 23DI(1), subsection 23DM(1) will list the circumstances in which a person is disqualified from serving as a juror because they have been prosecuted for a criminal offence or are facing prosecution. A person is not qualified if: • they have been convicted of an offence against a law of the Commonwealth, a State, a Territory, or a foreign country, and sentenced to death (in the case of a foreign country), or imprisonment for life or a term of more than 12 months; • they have been tried for an offence against a law of the Commonwealth, a State, a Territory, or a foreign country, and ordered to be detained for life or a period of more than 12 months in a detention facility; • they have, within the last 10 years, been convicted or tried of an offence against a law of the Commonwealth, a State, a Territory, or a foreign country, and sentenced to a term of imprisonment (including by way of periodic detention), or ordered to be detained in a detention facility; • they are currently serving a term of imprisonment (including by way of period of detention), being detained in a detention facility, or subject to an order for periodic home detention or in a detention facility; • they are currently subject to a good behaviour bond, community service order or similar order; • they are currently being held in custody for alleged commission of a criminal offence; or • they have been charged with an offence against a law of the Commonwealth, a State, a Territory, or a foreign country and is currently at liberty (including on bail) until required to appear before a court. 42

158. Consistent with repealed subsection 23DI(2), subsection 23DM(2) will extend the meaning of serving a term of imprisonment for the purposes of this section to include a suspended sentence and when a person has been released on parole or probation. 159. Consistent with subsection 23DI(3), subsection 23DM(3) will clarify, for the avoidance of doubt, that a disqualification does not apply if a relevant conviction, sentence or order has been set aside on appeal or as a result of a pardon. Section 23DN - Disqualification from serving on jury (professional ineligibility) 160. This section will replicate repealed section 23DJ, without amendment. Consistent with repealed section 23DJ, this section will provide that a person is disqualified from serving on a jury because of their employment or profession, whether the position is paid or not. 161. This section recognises the need to preserve public confidence in the integrity of the jury process and avoid any possible perception that the outcome of a jury trial may have been affected by the composition of the jury. 162. Consistent with repealed subsection 23DJ(1), subsection 23DN(1) will list when a person is disqualified because of their employment or profession: • the Governor or Administrator of a State or Territory; • judicial officers of a State or Territory; • members of Commonwealth, State or Territory parliaments; • legal practitioners holding a practising certificate; • persons whose duties or activities involve or are connected to the investigation or prosecution of criminal offences, the administration of justice, or the punishment of offenders; • persons excluded from jury service under a law of a State or Territory because their duties or activities involve or are connected with public administration or emergency services. 163. Consistent with repealed subsection 23DJ(2), subsection 23DN(2) will clarify that persons exempted or disqualified from jury service under other Commonwealth laws are not qualified to serve as a juror; for example: • seafarers of a regulated Australian vessel, defined by section 15 of the Navigation Act 2012, or of a foreign vessel, are is exempted from serving as a juror under section 89 of that Act; • the Governor-General, and justices of the High Court of Australia or of the courts created by the Parliament (including the Federal Court) are not liable and cannot be summoned to serve as a juror under section 4(1) and the schedule of the Jury Exemption Act 1965; 43

• agency heads including departmental secretaries (such as the Secretary of the Attorney-General's Department), heads of executive agencies (such as the Chief Executive Officer of the Digital Transformation Agency) and heads of statutory agencies (such as the Electoral Commissioner of the Australian Electoral Commission) are exempt from liability to serve as a juror under sections 6-7 of the Jury Exemption Regulations 2019. Section 23DP - Removing names from jury list 164. This section will replicate repealed section 23DO, with consequential amendments to update cross references to provisions which are renumbered by this item. 165. Consistent with repealed section 23DO, this section will require the Sheriff to remove a person's name from the jury list if satisfied that the person is not qualified to serve as a juror, or the person would be excused from jury service under sections 23DZD or 23DZE. 166. This section will allow the Sheriff to act without referring the matter to the Court. This section also supports an efficient undertaking of the Sheriff's functions by not requiring them to send summonses to persons who are ineligible to perform, or likely to be excused from, jury service. Section 23DQ - Jury summonses 167. This section will replicate repealed section 23DP, without amendment. Consistent with repealed section 23DP, this section will empower the Sheriff to issue summonses to persons on the jury list. 168. Consistent with repealed subsections 23DP(1)-(2), subsections 23DQ(1)-(2) will require the Sheriff to issue summonses to a sufficient number of persons on the jury list, to be selected at random, to allow the empanelment of the jury. 169. Consistent with repealed subsection 23DP(3), subsection 23DQ(3) will provide that the summons is be in the form, and be served, as provided for in the Rules of Court. A person served with a summons who fails to attend for jury service commits an offence, unless they have been excused, under section 58AA of the Federal Court Act. 170. Consistent with repealed subsection 23DP(4), subsection 23DQ(4) will empower the Sheriff to withdraw a summons. This may occur, for example, if an accused person changes their plea to guilty after summonses have been served but before a jury has been empanelled. Where the Sheriff has withdrawn a summons, the person will not have committed an offence if they fail to attend for jury service. Section 23DR - Preparing the jury panel 171. This section will replicate repealed section 23DS, without amendment. 172. Consistent with repealed subsection 23DS(1), subsection 23DR(1) will require the Sheriff to prepare a jury panel for the trial, which lists the names, addresses and dates of birth of potential jurors. The jury panel is to include each potential juror who has attended in accordance with a jury summons, or, if more potential jurors have 44

attended that are needed, an adequate number of potential jurors selected at random from those who have attended. 173. Consistent with repealed subsection 23DS(2), subsection 23DR(2) will provide that the jury panel must only include potential jurors who are qualified to serve as a juror, and not excused from jury service. Sections 23DL-23DN (inserted by this item) will set out when a person is or is not qualified to serve as a juror, and sections 23DZD- 23DZE and 23DZK (inserted by this item) will set out when a person may be excused from jury service. 174. Consistent with repealed subsection 23DS(3), subsection 23DR(3) will require the Sheriff to assign a number to each potential juror included in the jury panel. This provision allows the Sheriff to maintain the anonymity of jurors, should a confidentiality direction be given by the Federal Court under section 23EB, which allows for the Federal Court to give such directions as it thinks necessary to protect the security of a juror or potential juror. 175. Consistent with repealed subsection 23DS(4), subsection 23DR(4) will provide that a potential juror, who is not excused by the Sheriff, remains liable to be included on the jury panel until the potential juror is discharged. This means that a potential juror who is not included in the jury panel prepared by the Sheriff under subsection 23DR(1) can be added to the jury panel if necessary. This may occur, for example, if more potential jurors are excused or challenged during empanelment than expected. Subdivision DB--Provision of a jury panel prepared under State or Territory laws 176. This subdivision will set out the procedures for a State/Territory jury officials to prepare and provide a jury panel to the Sheriff, and associated matters. Section 23DS - Simplified outline of this Subdivision 177. This section will contain a simplified outline of subdivision DB of division 1A of part III of the Federal Court Act. The simplified outline is included to assist readers to understand the substantive provisions of the subdivision. The outline is not intended to be comprehensive. Readers should rely on the substantive provisions of the subdivision. Section 23DT - Application of Subdivision 178. Subsection 23DS(1) will provide that the subdivision applies in relation to juries for indictable primary proceedings where: • the Sheriff has made an election under subsection DD(2) that this subdivision is to apply; and • the State or Territory in which the Federal Court is to sit for the indictable primary proceedings has consented to the Sheriff making the election; and • the consent of the State or Territory remains in force. 45

179. Subsection 23DT(2) will provide that an arrangement between the Federal Court and the State or Territory made under section 23DZ (inserted by this item), which remains in force, may constitute consent under subsection 23DT(1). Other ways of the State or Territory providing consent may also constitute consent, such as agreement to provide a jury panel for a particular indictable primary proceedings rather than a standing arrangement under section 23DZ. 180. The remaining provisions of this subdivision will not apply where the Sheriff has made an election under subsection 23DD(2) that subdivision DA is to apply. Section 23DU - Provision of jury panel by State/Territory jury official 181. This section will set out the procedures applying when a State/Territory jury official is preparing and providing a jury panel to the Sheriff. The Sheriff may only request a State/Territory jury official prepare and provide a jury panel where the relevant State or Territory has consented, in accordance with subsection 23DT(1). Request for a jury panel 182. Subsection 23DU(1) will provide that the Sheriff may request a State/Territory jury official to prepare and provide a jury panel to the Sheriff and issue summonses to a sufficient number of persons to allow for the empanelment of a jury. The Sheriff's request must be in writing, and may only be made with the consent of the State or Territory, in accordance with subsection 23DT(1). 183. Subsection 23DU(2) will provide that the persons who may be summoned under paragraph 23DU(1)(b) are persons who the State/Territory jury official could summon for the purposes of a jury panel for a trial on indictment of an offence in the Supreme Court of the relevant State or Territory. This provision provides certainty, and avoids the State/Territory jury official needing to apply different rules or criteria depending on the court for which they are preparing a jury panel. Complying with request 184. Paragraph 23DU(3)(a) will require the State/Territory jury official to comply with a request made by the Sheriff under subsection 23DU(1). Although this provision is drafted with mandatory language, a request by the Sheriff will only be valid if it is made with the consent of the State or Territory, in accordance with subsection 23DT(1). Therefore, a State/Territory jury official cannot be required to comply with a request made without consent. 185. Paragraph 23DU(3)(b) will empower State/Territory jury officials to issue summonses for the purpose of preparing a jury panel upon request of the Sheriff. This provision will ensure that persons on the jury panel prepared by a State/Territory jury official and provided to the Sheriff are validly summoned for the purposes of a trial on indictment in the Federal Court. A person served with a summons who fails to attend for jury services, and who has not be excused, commits an offence under section 58AA of the Federal Court Act. 186. Subsection 23DU(4) will require a State/Territory jury official to apply all of the same processes they would apply when preparing a jury panel, and issuing summonses, for 46

a trial on indictment of an offence in the Supreme Court of the relevant State or Territory. These processes may include establishing jury districts, preparing jury rolls, conducting enquiries in relation to potential jurors, and excusing jurors due to qualification or other matters. This provision provides certainty, validates procedures, and avoids the State/Territory jury official needing to apply different processes depending on the court for which they are preparing a jury panel. 187. Subsection 23DU(5) will clarify, for the avoidance of doubt, that the State/Territory jury official may prepare and provide a jury panel to the Sheriff concurrently with any of their powers, functions or duties under the relevant State or Territory law. The purpose of this provision is to ensure that the State/Territory jury official does not need to duplicate activities when preparing and providing a jury panel to the Sheriff. 188. Subsections 23DU(6)-(7) will provide that for the purposes of this section and subsections 23DZL(3)-(5), which deal with the provision of supplemental jurors by a State/Territory jury official, the State/Territory official is to apply the same laws they would apply when preparing a jury list and panel, and issuing summonses. This provision provides certainty, and avoids the State/Territory jury official needing to apply different laws depending on the court for which they are preparing a jury panel. For the avoidance of doubt, if the law of the relevant State or Territory includes a requirement to prepare jury districts and rolls, these provisions are also applied by this subsection. 189. Subsection 23DU(8) will clarify, for the avoidance of doubt, that if a State/Territory jury official can only act on receipt of a direction (however described) from the relevant Supreme Court, then a request of the Sheriff under subsection 23DU(1) will be taken to satisfy this requirement. This ensures that the State/Territory jury official can validity act in reliance on a request of the Sheriff. When a jury panel is provided 190. Subsections 23DU(9)-(10) will confirm that a State/Territory jury official provides a jury panel to the Sheriff under this subdivision by providing a list of potential jurors to the Sheriff which must include the name and other information as necessary to identify each potential juror, and a number assigned to each potential juror. The requirement to assign a number to each potential juror is consistent with the Sheriff's obligation under section 23DR when preparing a jury panel under subdivision DA which ensures that the Sheriff can apply consistent processes when dealing with jury panels under subdivisions DC-E. Section 23DV - Qualification to serve as a juror 191. This section will apply relevant State or Territory laws concerning qualification to serve as a juror for a trial on indictment of an offence in the Supreme Court of the relevant State or Territory to the preparation and provision of a jury panel by a State/Territory jury official to the Sheriff. These laws are taken to have been modified as necessary to allow for such application, including that references to a court are taken to be references to the Federal Court. This provision will ensure the validity of potential jurors selected, and avoids the State/Territory jury official needing to apply different qualifications depending on the court for which they are preparing a jury panel. 47

Section 23DW - Certain other laws of a State or Territory apply, and Part VIA does not apply, before provision of jury panel 192. This section will clarify, for the avoidance of doubt, that relevant State or Territory laws apply, modified as necessary to be effective, from when the Sheriff requests, under subsection 23DU(1), the State/Territory jury official to prepare and provide a jury panel until the State/Territory jury official has provided the jury panel under subsection 23DU(9). 193. Subsection 23DW(4) will provide that section 58AA also applies during the relevant period. This provision will ensure that an offence would be committed if, for example, a person fails to attend for jury service in: • the Federal Court in accordance with a jury summons issued by a State/Territory jury official; or • a State or Territory court in accordance with jury summons issued by a State/Territory jury official for the purposes of preparing a jury panel under subdivision DB, even if that would not constitute an offence under a law of that State or Territory. Section 23DX - Disclosure of personal information by Sheriff or State/Territory jury official 194. This section will authorise personal information about a potential juror or a juror being shared between the Sheriff and a State/Territory jury official despite any law to the contrary. The purpose of this provision is to ensure that the disclosure of this information complies with the Privacy Act or a similar law of a State or Territory which restricts the collection, use and disclosure of personal information without unreasonably impacting the Sheriff and State/Territory jury officials in the undertaking of their functions and duties under the Federal Court Act. This provision is necessary as the State/Territory jury official will necessarily be disclosing personal information about a potential juror when they provide a jury panel to the Sheriff. Section 23DY - Payments to State or Territory 195. This section will provide that a State/Territory jury official preparing and providing a jury panel to the Federal Court may be on a fee-for-service basis. This provision recognises that, in preparing and providing a jury panel to the Sheriff, a State or Territory may incur additional expenses it would not otherwise incur and it is appropriate to enable the State or Territory to cost-recover these expenses. 196. The fee to be paid by the Federal Court to the relevant State or Territory may be determining by any standing arrangements entered into between the Federal Court and a State or Territory under section 23DZ or as otherwise agreed between the Federal Court and the State or Territory. Subsection 23DY(2) will provide, for the avoidance of doubt, that the fee payable may be nil. This recognises that, in some circumstances, the State or Territory may not incur any additional expenses in preparing and providing a jury panel to the Sheriff. 197. Subsection 23DY(3) will provide, for the avoidance of doubt, that the Federal Court may pay a fee to a State or Territory if the Sheriff rescinds a request to a 48

State/Territory jury official before a jury panel is provided. This provision recognises that, while there may be circumstances in which the Sheriff may need to rescind a request (for example, if a prosecution is discontinued), the State or Territory may already have incurred expenses during the preparation of a jury panel. It is therefore appropriate that the State or Territory can cost-recover these expenses. Section 23DZ - Arrangements with State or Territory 198. This provision will provide for the Federal Court and a State or Territory to enter into standing arrangements, in writing, to enable the relevant State/Territory jury official to prepare and provide jury panels on request by the Sheriff. Arrangements executed under this provision may include a range of matters which the Federal Court and relevant State or Territory consider is necessary to support the effective and efficient preparation and provision of jury panels by State/Territory jury officials. This may include matters such as detailed procedures and specifications for sharing information, timing for compliance with requests, or any right to decline a request by the Sheriff. 199. Subsection 23DZ(2) will provide that where a standing arrangement is in force, the relevant State/Territory jury official may prepare and provide a jury panel to the Sheriff notwithstanding any other law of the Commonwealth. This provision removes any doubt as to the powers of the State/Territory jury official in the event of a conflict with another provision of the Federal Court or another Commonwealth law. 200. The persons who may execute an arrangement for the Federal Court under this provision will be: • the Chief Justice, who is responsible for managing the administrative affairs of the Federal Court under subsection 18A(1) of the Federal Court Act; or • the Chief Executive Officer, who assists the Chief Justice in managing the administrative affairs of the Federal Court under section 18B of the Federal Court Act. 201. This provision does not set out who may execute an arrangement under this provision for a State or Territory. Ultimately, these persons are to be determined by the relevant State or Territory. Subdivision DC--Liability to serve on jury and Sheriff's excusal 202. This subdivision will set out a person's liability to serve on a jury and the Sheriff's powers of excusal. It largely replicates existing provisions that will be repealed by item 6. The following table sets out which repealed provisions the new section replicates (if applicable), and any changes made in the new section. Further detail on provisions and changes follow the table. 49

New section Repealed Changes provision 23DZA Simplified outline of this N/A New provision incorporating Subdivision relevant information from repealed section 23DA 23DZB Application of Subdivision N/A New provision 23DZC Liability to serve on jury 23DH(2)-(3) Additional cross references inserted in paragraph (1)(a), which replaces repealed paragraph 23DH(2)(a) New note to subsection (1), which replaces repealed subsection 23DH(2), inserted All cross references updated to reflect new numbering of replacement provisions 23DZD Sheriff's power to excuse--on 23DQ New subsections (1) and (3) inserted application Minor amendments to subsection (2), which replaces repealed subsection 23DQ(1) New subsection (4) inserted, adapted from repealed subsection 23DQ(1) All cross references updated to reflect new numbering of replacement provisions 23DZE Sheriff's power to excuse--on own 23DR Cross reference updated to reflect initiative numbering of replacement provision Section 23DZA - Simplified outline of this Subdivision 203. This section will contain a simplified outline of subdivision DC of division 1A of part III of the Federal Court Act. The simplified outline is included to assist readers to understand the substantive provisions of the subdivision. The outline is not intended to be comprehensive. Readers should rely on the substantive provisions of the subdivision. Section 23DZB - Application of Subdivision 204. This section will provide that the subdivision applies in relation to juries for indictable primary proceedings. This subdivision will apply whether a jury panel is prepared by the Sheriff under subdivision DA or provided by a State or Territory under subdivision DB. Section 23DZC - Liability to serve on jury 50

205. Subsection 23DZC(1) will replicate repealed subsection 23DH(2), and provide that a person who is qualified to serve as a juror is liable to serve as a juror unless they have been excused from service pursuant to subdivisions DB-DD (inserted by this item) or discharged under Subdivision E. 206. Subsection 23DZC(2) will replicate repealed subsection 23DH(3), and provide that anything done by a jury is not invalid merely because a juror was not qualified to serve as a juror. This provision will ensure that the outcome of a trial cannot be set aside solely on the grounds that one of the jurors was not technically qualified to serve on the juror, and support certainty for the defendant and the public. Section 23DZD - Sheriff's power to excuse--on application 207. This section will replicate repealed section 23DQ, with amendments to allow for its application to jury panels prepared and provided by a State or Territory under subdivision DB, in addition to jury panels prepared by the Sheriff under subdivision DA. Consistent with repealed section 23DQ, this section will empower the Sheriff to excuse potential jurors on application by the potential juror or an interested person on the potential juror's behalf if specified grounds are satisfied. 208. Subsection 23DZD(1) will provide that subsections 23DZD(2) and (5) apply if a jury panel is prepared by the Sheriff under subdivision DA (inserted by this item). Subsection 23DZD(2) will replicate repealed subsection DQ(1), and allow a potential juror (or an interested person on their behalf) to apply to the Sheriff to be excused from jury service at any time before the potential juror is seated in the jury box under subsection 23DZJ(3) (inserted by this item). 209. Subsection 23DZD(3) will provide that subsections 23DZD(4)-(5) apply if a jury panel is prepared and provided by a State or Territory under subdivision DB (inserted by this item). Subsection 23DZD(4) is adapted from repealed subsection 23DQ(1), and will allow a potential juror (or an interested person on their behalf) to apply to the Sheriff to be excused from jury service after the jury panel has been provided to the Sheriff under section 23DU (inserted by this item) and before the potential juror is seated in the jury box under subsection 23DZJ(3) (inserted by this item). A State/Territory jury official may excuse a potential juror from service under a State or Territory law applying under subsection 23DU(6) (inserted by this item) before providing the jury panel to the Sheriff. 210. Consistent with repealed subsection 23DQ(2), subsection 23DZD(5) will provide that the Sheriff may only excuse a potential juror on application under subsections 23DZD(2) or (4) if they are satisfied there is good cause to excuse the potential juror because of one or more of the following grounds: • the potential juror's health; • undue hardship to the potential juror or another person if they are not excused; • the potential juror's recent jury service in any jurisdiction; • substantial inconvenience to the public resulting from the potential juror serving on the jury; 51

• the potential juror's inability to perform the duties of a juror to a reasonable standard. 211. Before excusing a potential juror on the ground that they are unable to perform the duties of a juror to a reasonable standard, the Sheriff must have regard to the Disability Discrimination Act 1992, including whether any reasonable adjustments can be made to allow the potential juror to serve on the jury. 212. If a potential juror seeks to be excused for a reason not set out in subsection 23DZD(5), they must make an application to the Federal Court under section 23DZK (inserted by this item). Under that section the Federal Court can excuse a potential juror if it is satisfied that it is appropriate to do so in the circumstances. Section 23DZE - Sheriff's power to excuse--on own initiative 213. This section will replicate repealed section 23DR, with consequential amendments to update cross references to provisions which are renumbered by this item. 214. Consistent with repealed subsection 23DR(1), subsection 23DZE(1) will empower the Sheriff to excuse potential jurors from serving on the jury, on their own initiative, if they are satisfied that the potential juror: • is unable to perform the duties of a juror to a reasonable standard; or • is not required for jury service for any other reason. 215. Before excusing a potential juror on the ground that they are unable to perform the duties of a juror to a reasonable standard, the Sheriff must have regard to the Disability Discrimination Act 1992, including whether any reasonable adjustments can be made to allow the potential juror to serve on the jury. 216. Consistent with repealed subsection 23DR(2), subsection 23DZE(2) will require the Sheriff to excuse a potential juror if the Sheriff becomes aware they are not qualified to serve as a juror. Subdivision DD--Empanelling the jury 217. This subsection will set out the procedures for empanelling a jury, which largely replicate existing provisions. The following table sets out which repealed provision the new section replicates (if applicable), and any changes made in the new section. Further detail on provisions and changes follow the table. New section Repealed Changes provision 23DZF Simplified outline of this N/A New provision incorporating Subdivision relevant information from repealed section 23DA 23DZG Application of Subdivision N/A New provision 52

New section Repealed Changes provision 23DZH Preparing to empanel the jury 23DT Minor amendments to subsection (1), which replaces repealed subsection 23DT(1) All cross references updated to reflect new numbering of replacement provisions 23DZJ Empanelling the jury 23DU All cross references updated to reflect new numbering of replacement provisions 23DZK Court's power to excuse a person 23DV All cross references updated to from serving on a jury reflect new numbering of replacement provisions 23DZL Supplementary jurors 23DW New subsection (3) inserted, adapted from repealed subsection 23DW(1) New subsections (4)-(5) inserted New subsection (6) inserted, adapted from repealed subsection 23DW(2) All cross references updated to reflect new numbering of replacement provisions 23DZM Challenges to potential jurors-- 23DX All cross references updated to general reflect new numbering of replacement provisions 23DZN Challenges for cause 23DY Nil 23DZP Peremptory challenges 23DZ Nil 23DZQ Prosecutor may request that 23DZA All cross references updated to potential jurors be stood aside reflect new numbering of replacement provisions Section 23DZF - Simplified outline of this Subdivision 218. This section will contain a simplified outline of subdivision DD of division 1A of part III of the Federal Court Act. The simplified outline is included to assist readers to understand the substantive provisions of the subdivision. The outline is not intended to be comprehensive. Readers should rely on the substantive provisions of the subdivision. 53

Section 23DZG - Application of Subdivision 219. This section will provide that the subdivision applies in relation to juries for indictable primary proceedings. This subdivision will apply whether a jury panel is prepared by the Sheriff under subdivision DA or provided by a State/Territory jury official under subdivision DB. Section 23DZH - Preparing to empanel the jury 220. This section will replicate repealed section 23DT, with minor amendment as to the time at which subsection 23DZH(1) applies, and consequential amendments to update cross references to provisions which are renumbered by this item. 221. Subsection 23DZH(1) will provide that, before the beginning of the trial, the Sheriff must give the Federal Court the list of potential jurors on the jury panel prepared by the Sheriff under subsection 23DR(1) (inserted by this item) or provided by a State/Territory jury official under subsection 23DU(9) (inserted by this item), and facilitate the attendance in court of those potential jurors. This subsection is consistent with repealed subsection 23DT(1), except that the time for the Sheriff to act under that repealed subsection is 'at the beginning of the trial'. 222. Consistent with repealed subsection 23DT(2), subsection 23DZH(2) will provide that, before the jury selection process begins, the Federal Court must inform the parties to the trial that the potential jurors to be called (by name and/or number) may become jurors for the trial, and that any challenge must be made before the potential juror sits in the jury box. 223. Consistent with repealed subsection 23DT(3), subsection 23DZH(3) will provide that, before the jury selection process begins, the Federal Court must inform the potential jurors of the nature of the trial, including the offences alleged, and the identities of the parties and principal witnesses (to the extent known). The Federal Court will ordinarily know the witnesses proposed to be called by the prosecutor, but may not know what witnesses the accused proposes to call. The Federal Court must also call on the potential jurors to apply to be excused if they consider that they cannot give impartial consideration to the case or if they should be excused for any other reason. Section 23DZJ - Empanelling the jury 224. This section will replicate repealed section 23DU, with consequential amendments to update cross references to provisions which are renumbered by this item, and set out the procedures for the Federal Court when empanelling a jury. 225. Consistent with repealed subsection 23DU(1), subsection 23DZJ(1) will provide that the Federal Court must ensure that an officer of the Federal Court (officer) calls out the name or number of a potential juror, selected at random, from the jury panel. Ordinarily, the officer will call out the name of a potential juror, but the Federal Court is empowered under subsection 23EB(2)(a) to require a juror or potential juror to be referred by number only in order to protect their security. 54

226. Consistent with repealed subsection 23DU(2), subsection 23DZJ(2) will require the officer to call both the name and number of a potential juror where two or more potential jurors have the same name. 227. Consistent with repealed subsection 23DU(3), subsection 23DZJ(3) will require a potential juror to sit in the jury box if called, unless the potential juror is: • excused under subdivision DC or DD (inserted by this item); • stood aside under section 23DZQ (inserted by this item), which will set out the right of the prosecutor to request a potential juror be stood aside; or • discharged under subsection 23EI(2), which provides that a potential juror is discharged if their inclusion in the jury is successfully challenged by the accused or prosecutor. 228. Sections 23DZM-23DZP (inserted by this item) will set out the rights of the accused and prosecutor to challenge the inclusion of a potential juror in a jury. 229. Consistent with repealed subsection 23DU(4), subsection 23DZJ(4) will require the officer to continue calling the names and/or numbers of potential jurors until the required number of jurors, as set out in section 23EAB (inserted by item 7), are seated in the jury box. 230. Consistent with repealed subsection 23DU(5), subsection 23DZJ(5) will provide that once the required number of potential jurors are seated in the jury box, they must be sworn or make an affirmation. After this, and consistent with repealed subsection 23DU(6), subsection 23DZJ(6) will provide that the potential jurors are taken to have been empanelled as the jury for the trial. Section 23DZK - Court's power to excuse a person from serving on the jury 231. This section replicates repealed section 23DV, with consequential amendments to update cross references to provisions which are renumbered by this item. This section will also set out the Federal Court's power to excuse a person from serving on a jury and the impact of such an excusal. 232. Consistent with repealed subsection 23DV(1), subsection 23DZK(1) will empower the Federal Court to excuse a potential juror from serving on a jury before the potential juror sits in the jury box if the Federal Court is satisfied it is appropriate to do so in the circumstances. The power can be exercised on the Federal Court's own initiative or by request from the potential juror, including by giving a note to the judge if the potential juror does not want to state in public why they want to be excused. 233. This is a residual power designed to ensure that the trial judge can excuse a potential juror, even if neither party objects, if the judge is satisfied that the person should not be on the jury in the circumstances. 234. Subsection 23DZK(2) will provide that potential jurors who are not empanelled for the trial are taken to be excused by the Federal Court at the earlier of judgment being 55

rendered on all courts (including acquittal where the Federal Court has found the accused has no case to answer) or 3 months after the jury is first empanelled. Section 23DZL - Supplementary jurors 235. This section will replicate repealed section 23DW, with amendments to allow for its application to jury panels prepared and provided by a State/Territory jury official under subdivision DB, in addition to jury panels prepared by the Sheriff under subdivision DA. Consistent with repealed section 23DW, this section will empower the Federal Court to direct the Sheriff to supplement a jury panel if there is an insufficient number of potential jurors on the jury panel to allow a jury to empanelled. That may happen if, for example, more potential jurors are excused under section 23DZK (inserted by this item) than expected. Jury panel prepared under Subdivision DA 236. Consistent with repealed subsection 23DW(1), subsection 23DZL(1) will provide that, in relation to a jury panel prepared by the Sheriff under subdivision DA, the Federal Court can direct the Sheriff to supplement the jury panel by: • selecting additional potential jurors from those who attended court in accordance with a jury summons; • causing additional summonses to be issued and selecting additional persons from those who attend the Federal Court; or • selecting a sufficient number of persons in the vicinity of the Federal Court who are qualified to serve on the jury under section 23DL (inserted by this item). 237. Consistent with repealed subsection 23DW(2), subsection 23DZL(2) will provide that a person selected by way of being in the vicinity of the Federal Court is taken to be a potential juror and included on the jury panel. This ensures that all the ordinary procedural provisions apply to the person, including the provisions dealing with excuses and challenges, even though the person has not been summonsed. Jury panel provided under Subdivision DB 238. Subsection 23DZL(3) is adapted from repealed subsection 23DW(1), and will provide that, in relation to a jury panel prepared by a State/Territory jury official and provided to the Sheriff under subdivision DB, the Sheriff may request the State/Territory jury official to: • provide additional potential jurors from those who attended court in accordance with a jury summons; • issue additional summonses and select and provide additional potential jurors to those who attended court; or • select a sufficient number of persons in the vicinity of the Federal Court who are qualified to serve as a juror under the relevant State or Territory law applying under section 23DV (inserted by this item). 56

239. Subsections 23DZL(4)-(5), which are consistent with section 23DU (inserted by this item) will: • require the State/Territory jury official to comply with the request by applying all of the same processes they would when issuing summonses for a trial on indictment of an offence in the Supreme Court of the relevant State or Territory; and • authorise the State/Territory jury official to issue summons to persons who could be summoned for the purposes of a jury panel for a trial on indictment of an offence in the Supreme Court of the relevant State or Territory who have not already been summonsed for the jury under subsection 23DU(3) (inserted by this item). 240. Subsection 23DZL(6) is adapted from repealed subsection 23DW(2), and will provide that a person selected by way of being in the vicinity of the Federal Court is taken to be a potential juror and included on the jury panel. This will ensure that all the ordinary procedural provisions apply to the person, including the provisions dealing with excuses and challenges, even though the person has not been summonsed. Section 23DZM - Challenges to potential jurors--general 241. This section will replicate repealed section 23DX, with consequential amendments to update cross references to provisions which are renumbered by this item, and will set out the general procedures for a party to challenge the inclusion of a potential juror in a jury. 242. Consistent with repealed subsection 23DX(1), subsection 23DZM(1) will clarify each party's rights to challenge a potential juror are set out by this section, and sections 23DZN and 23DZP (inserted by this item). 243. Consistent with repealed subsection 23DX(2), subsection 23DZM(2) will provide that a challenge can only be made after the potential juror has been called (by name and/or number) and before the potential juror sits in the jury box. 244. Consistent with repealed subsection 23DX(3), subsection 23DZM(3) will provide that a potential juror must not be empanelled if a successful challenge is made. A potential juror who is successfully challenged is taken to have been discharged from jury service under subsection 23EI(2). 245. A challenge is different from a request by the prosecutor for a potential juror to be stood aside under section 23DZQ (inserted by this item). A potential juror who is stood aside may be called for a second time and be empanelled on the jury. Section 23DZN - Challenges for cause 246. This section will replicate repealed section 23DY, without amendment. 247. Consistent with repealed subsection 23DY(1), subsection 23DZN(1) will provide that each party may exercise an unlimited number of challenges for cause. This means that both the prosecutor and the accused have unrestricted rights to challenge a potential juror if they have grounds for objecting to the person being on the jury. 57

248. Consistent with repealed subsection 23DY(2), subsection 23DZN(2) will provide that a challenge for cause must be tried by the judge before whom the jury is being empanelled. The trial judge will ordinarily make an immediate ruling on whether to uphold the objection. Section 23DZP - Peremptory challenges 249. This section will replicate repealed section 23DZ, without amendment, and provides for the accused to have four peremptory challenges, or five peremptory challenges if more than 12 jurors are to be empanelled. 250. A peremptory challenge does not require the accused to specify grounds for objecting the potential juror being on the jury. It is a traditional safeguard to ensure than an accused can have confidence in the final composition of the jury. A peremptory challenge must be accepted by the Federal Court; a potential juror who is the subject of a peremptory challenge cannot sit on the jury. 251. If more than one accused is being tried, each accused is entitled to four or five peremptory challenges, as the case may be. 252. The prosecutor is not entitled to any peremptory challenges, but will be able to request that potential jurors be stood aside under section 23DZQ (inserted by this item). Section 23DZQ - Prosecutor may request that potential jurors be stood aside 253. This section will replicate repealed section 23DZA with consequential amendments to update cross references to provisions which are renumbered by this item, and will set out the prosecutor's right to request a juror be stood aside and associated procedures. Standing aside a juror is a procedure under which the prosecution may request a potential juror to stand to one side while other jurors are selected. 254. Consistent with repealed subsection 23DZA(2), subsection 23DZQ(2) will provide that the Federal Court must order a potential juror to stand aside if requested by the prosecutor after the potential juror has been called (by name and/or number) and before the potential juror sits in the jury box. 255. Consistent with repealed subsection 23DZA(3), subsection 23DZQ(3) will provide that if the jury panel has been exhausted before enough potential jurors are seated in the jury box under section 23EAB (inserted by item 7), any potential juror who has been juror who has been stood aside under subsection 23DZQ(2) may be called again, at random. 256. Consistent with repealed subsection 23DZA(4), subsection 23DZQ(4) will provide that if a juror who is stood aside is called again under subsection 23DZQ(3), the prosecutor may not request again that the potential juror is stood aside. However, the prosecutor may still challenge the potential juror's inclusion in the jury, if it has grounds, under section 23DZN (inserted by this item). 257. Consistent with repealed subsection 23DZA(5), subsection 23DZQ(5) will provide that the prosecutor may make 4 requests to stand a potential juror aside, or 5 requests if more than 12 jurors are to be empanelled. 58

Item 7 - Before section 23EA 258. This item will insert several sections into subdivision E that largely replicate provisions of repealed subdivision D (repealed by item 6) which were not replaced in item 6. The following table sets out which repealed provision the new section replicates (if applicable), and any changes made in the new section. Further detail on provisions and changes follow the table. New section Repealed Changes provision 23EAA Jury districts and rolls 23DF-23DG New notes inserted to: • subsection (1), which replaces repealed subsection 23DF(1); and • subsection (4), which replaces repealed subsection 23DG(2) 23EAB Number of jurors on jury 23DC All cross references updated to reflect new numbering of replacement provisions 23EAD Ballot to reduce additional jurors 23DE Nil Section 23EAA - Jury districts and rolls 259. Section 23EAA will combine repealed sections 23DF- 23DG and will provide for the determination of jury districts and preparation of jury rolls which are relevant for the preparation of a jury panel by the Sheriff under subdivision DA (inserted by item 6). Jury districts 260. Consistent with repealed section 23DF, subsections 23EAA(1)-(2) will provide that the Sheriff may determine that one or more electoral Divisions constitute a jury district for a particular State or Territory. Electoral Division has the same meaning as Division has in the Commonwealth Electoral Act, being an electoral division for the election of a member of the House of Representatives. A State or Territory may have more than one jury district. 261. Consistent with repealed subsection 23DF(3), subsection 23EAA(3) will clarify, for the avoidance of doubt, that the Sheriff's determination is not a legislative instrument; it is an instrument of administrative character that will apply but not determine the law. Subsection 33(3) of the Acts Interpretation Act provides that a power to make (however described) an administrative instrument includes the power to revoke or vary (however described) the instrument, subject to the conditions of the power. This means that the Sheriff may revoke or vary the determination made under subsection 23EAA(1). This could include, for example, providing that an electoral Division is transferred from one jury district to another. 59

Jury rolls 262. Consistent with repealed section 23DG(1), subsection 23EAA(4) will provide that the Sheriff may prepare a jury roll for the purposes of preparing a jury, which are to be composed of the Rolls (as on the day the Sheriff begins preparing the jury) for each electoral Division that forms part of the jury district. 'Roll' has the same meaning as in the Commonwealth Electoral Act, being the electoral roll prepared under that Act. The Electoral and Referendum Regulation 2016 provides that the Federal Court is a prescribed authority for the purposes of section 90B(4) of the Commonwealth Electoral Act, which means the Electoral Commission may provide information from the electoral roll for the purpose of a preparing a jury. 263. Consistent with repealed subsection 23DG(2), subsection 23EAA(5) will clarify, for the avoidance of doubt, that a jury roll is not a legislative instrument; it is an instrument of administrative character that will apply but not determine the law. Subsection 33(3) of the Acts Interpretation Act provides that a power to make (however described) an administrative instrument includes the power to revoke or vary (however described) the instrument, subject to the conditions of the power. This means that the Sheriff may revoke or vary the jury roll prepared under subsection 23EAA(4) when, for example, a revised electoral roll is provided to the Federal Court by the Electoral Commission. Section 23EAB - Number of jurors on jury 264. This section will replicate repealed section 23DC with consequential amendments to update cross references to provisions which are renumbered by item 6, and will provide that the number of jurors is 12, the traditional number for a jury in a criminal matter. The Federal Court is empowered to empanel up to 15 jurors to allow for juror attrition which may occur in long-running cases. However, a maximum of 12 jurors can retire to consider a verdict (see section 23EAD, inserted by this item). Section 23EAC - Continuation of the trial with a reduced jury 265. This section will replicate repealed section 23DD with consequential amendments to update cross references to provisions which are renumbered by this item, and will provide that the Federal Court may direct that a trial may continue with no less than 10 jurors if one or more juror is discharged during the trial or the jury's deliberations. This provision recognises that jurors may become unable to fulfil their duties due to illness or other unforeseen events, but that it may be preferable in the interests of justice and supporting the effective and efficient administration of justice that the trial continue with fewer than the required number (that is, 12) jurors. Section 23EAD - Ballot to reduce additional jurors 266. This section will replicate repealed section 23DE, without amendment, and will apply if more than 12 jurors remain empanelled at the time of being asked to retire to consider its verdict. The Federal Court must hold a ballot to select, at random, 11 jurors who, together with the jury foreperson, will consider the verdict. Any jurors not selected by the ballot are taken to be discharged at the end of the ballot under section 23EJ. 60

Items 8, 11-16, 19, and 21-22 - Consequential amendments 267. These items will make consequential amendments to several provisions to update cross references to provisions which are renumbered by this schedule, as set out in the following table. New cross reference Repealed cross Provision in which cross reference provision reference provision occurs Section 23DN Section 23DN Subsection 23EM(3) (note) (item 16) Subsection 23DK(2) Subsection 23DN(2) Paragraph 58AE(1)(a) (item 21) Subsection 23DK(3) Subsection 23DN(3) Subparagraphs 58AE(1)(b)(i)-(ii) (item 22) Section 23DZH Section 23DT Paragraph 23EM(5)(b) (item 19) Section 23DZJ Section DU Paragraph 23EM(2)(a) (item 13) Subsection 23EM(3) (item 14) Paragraph 23EM(3)(a) (item 15) Subsection 23DZJ(1) Subsection DU(1) Paragraph 23EB(2)(a) (item 8) Subsection 23EAC(3) Subsection 23DD(3) Subsection 23EL(5) (item 12) Section 23EAD Section 23DE Subsection 23EJ(1) (item 11) Items 9 and 20 - Cross references to provisions providing for the issuing of summonses 268. This item will make consequential amendments to paragraph 23EH(a) and subparagraph 58AA(1)(a)(i) by replacing references to section 23DP (repealed by item 6) to be subsections 23DQ(1), 23DU(3) and 23DZL(4) (inserted by item 6). Before repeal, section 23DP was the only provision of the Federal Court Act which provided for the issuing of summonses to potential jurors. Subsections 23DQ(1), 23DU(3) and 23DZL(4) (inserted by item 6) will all provide for the issuing of summonses to potential jurors. Item 10 - Subsection 23EI(1) 269. This item will make a consequential amendment to subsection 23EI(1) to ensure that potential jurors are taken to be discharged regardless of the provision under which they have been excused. Items 17-18 - Subsection 23EM(4) (notes) 270. These item will: • repeal note 2 to subsection 23EM(4), which details the Federal Court's power to direct the Sheriff to supplement the jury, as it is not relevant to this subsection, 61

which deals with circumstances where the Federal Court has discharged the entire jury; and • amend the title of note 1 to subsection 23EM(4) to be 'note' as it is the only note remaining to subsection 23EM(4). Item 23 - Application and saving provisions 271. Subitem (1) will provide, for the avoidance of doubt, that the amendments in Schedule 2 only apply in relation to directions by the Federal Court to the Sheriff to arrange for a jury panel which are given on or after the commencement of this item. 272. Subitem (2) will provide, for the avoidance of doubt, that division 1A of part III of the Federal Court Act as in force immediately before the commencement of this item, continues to apply to in relation to directions by the Federal Court to the Sheriff to arrange for a jury panel which are given before the commencement of this item. 273. The effect of subitems (1)-(2) will be to ensure that the provisions applying to jury panels are those in force at the time the Sheriff was directed to arrange for the jury panel. 274. Subitem (3) will provide that a determination by the Sheriff to constitute a jury district made under repealed subsection 23DF(1) (repealed by item 6) continues to be effective after commencement of this item as if it was a determination made under subsection 23EAA (inserted by item 7). 275. Subitem (4) will provide that a jury roll prepared by the Sheriff under repealed subsection 23DG(1) (repealed by item 6) continues to be effective after commencement of this item as if it was prepared under subsection 23EAA(4) (inserted by item 7). 276. Subitems (3)-(4) will support the effective and efficient administration of justice by ensuring the Sheriff is not required to make determinations as to the constitution of jury districts, or to prepare jury rolls, which already exist and remain fit-for-purpose. Schedule 3--Amendment of the Marriage Act Part 1--Deputy Registrars of Marriage Celebrants Marriage Act 1961 Item 1 - Subsection 5(1) 277. This item will insert three definitions into section 5 of the Marriage Act, the Interpretation section, to clarify the roles of the Registrar and proposed Deputy Registrars: • The Registrar of Marriage Celebrants (Commonwealth) is responsible for registering and regulating Commonwealth-registered marriage celebrants. 62

• The Registrar is the Registrar of Births, Deaths and Marriages (state/territory) is responsible for registering Ministers of Religion of a recognised denomination and the registration of marriages solemnised in that state or territory. • The Deputy Registrar of Marriage Celebrants is a new role, defined in new subsection 39AA(1). Under item 3, this position is made on the delegation of the Registrar of Marriage Celebrants who can delegate certain powers and functions to assist with the administration of the Marriage Celebrant Program. Item 2 - At the end of section 39A 278. This item will provide a new power to the Registrar of Marriage Celebrants to delegate to a Deputy Registrar of Marriage Celebrants any of the functions or powers under new subsection 39A(4) of the Marriage Act, with certain exceptions. 279. The limitations to the delegation of functions or powers in new subsection 39AA(5) will provide that the Registrar of Marriage Celebrants must not confer functions or powers relating to: the number and basis of positions of Deputy Registrars of Marriage Celebrants (new subsection 39AA(1)); the qualifications, and/or skills that a person must have to be registered as a marriage celebrant (paragraph 39C(1)(b)); approving the form of a notice that a person wishes to be identified as a religious marriage celebrant on the register of marriage celebrants (subsection 39DB(2)); to require professional development activities (paragraph 39G(1)(b)); to take disciplinary measures against a marriage celebrant (section 39I); and to establish complaints resolution procedures to resolve complaints about the solemnisation of marriages by marriage celebrants (paragraph 39K(c)). Item 3 - After section 39A 280. This item will provide for the Registrar to delegate powers and functions to Deputy Registrars of Marriage Celebrants. Under new section 39AA, a Deputy Registrar of Marriage Celebrants will be Australian Public Service employees in the Attorney-General's Department who may occupy the position on an acting, permanent, full-time or part-time basis. Item 4 - Section 39L 281. This item will provide that neither the Registrar of Marriage Celebrants or the Deputy Registrar of Marriage Celebrants is liable for damages in respect of anything done or omitted to be done in good faith, in exercise, or purported exercise, of powers or functions under the Marriage Act. Part 2--Timeframes for considering application for registration as authorised celebrant Marriage Act 1961 Item 5 - Subsection 34(5) 282. This item will extend the period in which to assess an application for registration as a Minister of Religion for a recognised denomination under subdivision A of division 1 of part IV from three to six months. Currently, if a decision on an application for 63

registration is not made in three months, it is a deemed refusal. The extension of time will ensure that applicants have sufficient time to supply all information required and provide the Registrar of Births, Deaths and Marriages in the relevant state or territory an opportunity to, where required, seek additional information or make further enquiries. The six-month timeframe 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. Item 6 - After subsection 39D(3) 283. This item will provide a new power in subsection 39D(3A) for the Registrar of Marriage Celebrants to request in writing, further information relating to an application for registration. A reasonable period must be given in which to comply with such a request. Further information may be sought on any aspect of the application. 284. Under subsection 39D(3B) the Registrar is not required to consider the application while waiting for the information to be given. Under new section 39D(3C) if the applicant has not provided the information by the end of the period specified in the notice, or a longer period if granted by the Registrar, the application is taken to be withdrawn. This is not a reviewable decision and the application fee is not refundable in these circumstances. Item 7 - Before subsection 39D(4) 285. This item will insert a new subheading 'Decision on application' prior to the sections dealing with the decision of the Registrar of Marriage Celebrants to register, or not register, a person who has made application for registration as a Commonwealth- registered marriage celebrant. Item 8 - Paragraph 39J(2)(b) 286. This item will extend the time in which the Registrar of Marriage Celebrants has to assess an application for registration, from three to six months, commencing when a complete application is received. Paragraph 39J(2)(b) is a deemed refusal provision whereby if the Registrar has not made a decision in six months or notified the applicant of their decision in six months, the application is taken to be refused. This is a reviewable decision in the Administrative Appeals Tribunal under subsection 39J(1) of the Marriage Act. Item 9 - Subsection 39J(2) 287. This item will provide for an extension of the time the Registrar of Marriage Celebrants has to assess an application, from three to six months. Item 10 - Paragraph 39J(2A)(b) 288. This item will provide that if an applicant has not been identified on the register or notified by the Registrar of a decision not to register the person as a religious marriage celebrant, the Registrar is taken to have decided, on the last day of the six-month period, not to register that person as a religious marriage celebrant. This is a 64

reviewable decision in the Administrative Appeals Tribunal under subsection 39J(1) of the Marriage Act. Item 11 - Subsection 39J(2A) 289. This item will reflect the extension of time in which the Registrar has to assess an application from three to six months. Subsection 39J(2A) is a deemed refusal provision whereby if an applicant has not been identified on the register or notified by the Registrar of a decision not to register the person as a religious marriage celebrant, the Registrar is taken to have decided, on the last day of the six-month period, not to register that person as a religious marriage celebrant. Item 12 - Application of amendments 290. This item will provide that amendments made by the Bill to subsection 34(5) and item 6-11 only apply after the commencement of this part. Part 3--Refund of registration application fee Marriage Act 1961 Item 13 - After subsection 39D(1E) 291. This item will provide an ability for the Registrar of Marriage Celebrants to refund all or part of an application fee paid by an applicant in respect of their application for registration. Under subsection 39D(1G), this can be initiated by the Registrar of Marriage Celebrants or the person who made the application for registration as a marriage celebrant. 292. Under subsection 39D(1F), a refund can be made on three grounds, where: the person does not have the requisite qualification or skills referred to in paragraph 39C(1)(b); the person has been granted an exemption from liability to pay the registration application fee (in circumstances where the person has already paid the application fee to become a Commonwealth-registered marriage celebrant); or any other circumstances prescribed by the regulations for the purpose of this paragraph. Item 14 - Application of amendments 293. This item will provide that the refund provisions relating to a registration application fee paid by an applicant to become a Commonwealth-registered marriage celebrant apply after the commencement of part 3. Part 4--Celebrant to be physically present at marriage Marriage Act 1961 Item 15 - Paragraph 5(2)(a) 294. This item will insert the word 'physical' before the word presence, wherever that occurs in the Marriage Act. The term presence is not defined in the Marriage Act and there is some uncertainty as to whether presence could be held to include an online 65

presence. This amendment clarifies that marriage in Australia must be in the 'physical presence' of an authorised celebrant who is legally authorised to solemnise the marriage. Item 16 - Subsection 13(1) 295. This item will remove the phrase 'or in whose presence' in subsection 13(1) relating to marriage of a minor. This will be replaced with physical presence, clarifying that marriage in Australia must be in the 'physical presence' of an authorised celebrant who is legally authorised to solemnise the marriage. Item 17 - Subsection 21(2) 296. This item will remove the phrase 'or in whose presence' in subsection 21(2) relating to marriage of a minor. This will be replaced with physical presence, clarifies that marriage in Australia must be in the 'physical presence' of an authorised celebrant who is legally authorised to solemnise the marriage. Item 18 - Section 41 297. Section 41 of the Marriage Act sets out the authority of an authorised celebrant to solemnise a marriage. The reference to 'by or in the presence' will be replaced with 'by an authorised celebrant who is physically present at the place where the marriage takes place and is authorised to solemnise marriages at that place.' Item 19 - Subsections 45(1), (2) and (3) 298. Section 45 of the Marriage Act specifies the form of ceremony whether by a minister of religion or authorised celebrant. This item will remove the phrase 'or in the presence of'. This will be replaced by physical presence, clarifying that marriage in Australia must be in the 'physical presence' of an authorised celebrant who is legally authorised to solemnise the marriage. Item 20 - Subsection 46(1) 299. Section 46 of the Marriage Act requires authorised celebrants, not being a minister of religion for a recognised denomination, to explain the nature of the marriage ceremony in what is commonly referred to as the 'monitum'. This item will remove the phrase 'or in the presence of' and replace this with physical presence, clarifying that marriage in Australia must be in the 'physical presence' of an authorised celebrant who is legally authorised to solemnise the marriage. Item 21 - Subsection 71(1) 300. Section 71 of the Marriage Act relates to marriages by members of the Defence Force overseas. This item will remove the reference to 'by or in the presence of an authorised celebrant' and replace it with 'by an authorised celebrant who is physically present at the place where the marriage takes place and is authorised to solemnise marriages at that place.' 66

Item 22 - Paragraph 72(1)(a) 301. Section 72 of the Marriage Act sets out the form and ceremony of marriages by member of the Defence Force overseas. This item will require the two authorised witnesses to the marriage to be physically present. Item 23 - Subsection 72(2) 302. This item will insert the word physical before the word presence as it relates to the marriage of a member of the Defence Force overseas and vows said by each of the parties. Subsection 72(2) clarifies that the vows must be said in the physical presence of an authorised celebrant, unless, having regard to the form and ceremony of the marriage, the authorised celebrant considers it unnecessary for the parties to the marriage to do so. Item 24 - Subsection 80(8) 303. This item will remove the reference to 'or in whose presence'. This will be replaced by 'physical presence' so that the authorised celebrant by whom, or in whose physical presence, a marriage is solemnised is required to register the marriage in accordance with the subsection 80(8). Item 25 - Subsection 112(1) 304. Subsection 112(1) makes provision for an interpreter in relation to marriages to which division 2 of part IV (marriages by authorised celebrants) applies and marriages under part V (marriages of members of the Defence Force overseas). This item will provide that where the person by whom, or in whose 'physical presence', a marriage is to be solemnised considers that it is desirable to do so, the person may use the services of an interpreter, not being a party to the marriage, in or in connection with the ceremony. Item 26 - Subsection 113(3) 305. This item will remove the reference to 'or in whose presence' Subsection 113(3) relates to 'second marriage ceremonies' where there is doubt as to the legal validity of a marriage. The amendment would provide that where two persons wish to go through a form or ceremony of marriage with each other, they must produce to the person by whom, or in whose 'physical presence', the form or ceremony is to take place or be performed, a statutory declaration and certificate from a barrister or solicitor in accordance with the requirements in subsection 113(3). Item 27 - Subsection 113(4) 306. This item will omit the reference to 'or in whose presence'. Subsection 113 relates to 'second marriage ceremonies'. The amendment will provide that the person by whom or in whose physical presence a form or ceremony of marriage takes place or is performed in, shall make an endorsement in accordance with the regulations on each certificate issued. 67

Item 28 - Paragraph 113(5)(a) 307. This item will omit the reference to 'or in whose presence'. Subsection 113(5) relates to a second religious marriage ceremony where parties are already legally married to each other. The amendment will require the parties to the marriage to produce to the person by whom or in whose 'physical' presence the ceremony is to be performed, a certificate of their existing marriage. Item 29 - Subsection 113(6) 308. This item will omit the reference to 'or in whose presence'. Subsection 113(6) relates to a second religious marriage ceremony where parties are already legally married to each other. The amendment will provide that sections 42, 44, 50 and 51 of the Marriage Act do not apply to, or in relation to, a religious ceremony of marriage in accordance and the person by whom, or in whose 'physical' presence, the ceremony is performed. The person who performs the ceremony must not prepare any marriage documentation for a second religious marriage ceremony, as they would for a legally valid marriage. Part 5--Identity Requirements Marriage Act 1961 Item 30 - Subparagraph 42(1)(b)(ii) 309. This item will repeal subparagraph 42(1)(b)(ii) as it relates to the use of a Commonwealth Statutory Declaration as evidence of date and place of birth, in the absence of a passport or official certificate or official extract of a public record. The amendment made by item 32, will clarify the priority of evidence required to establish date and place of birth for the purposes of the NOIM. Item 31 - Subparagraph 42(1)(b)(iv) 310. Subparagraph 42(1)(b)(iv) provides that a passport can be used as evidence of date and place of birth. This item will remove the reference to party and replaces it with 'party; or'. This is to account for the change in the ordering of this provision under item 32. Item 32 - At the end of paragraph 42(1)(b) 311. This item will provide for the reordering of acceptable evidence of identity under paragraph 42(1)(b) so that if it is impracticable for a party to obtain an official certificate or official extract of an entry in an official register, or the party to the marriage does not have a passport (Australian or foreign), a statutory declaration may be used. There is significant confusion with the current order in paragraph 42(1)(b) relating to evidence of identity. It currently reads such to suggest that a person may rely on a statutory declaration where they do not have an official certificate, such as a birth certificate. The amendment will clarify where it is impracticable (practically impossible) for the party to the marriage to obtain a certificate or official extract of an entry in an official register and they do not have a passport, they may rely on a 68

statutory declaration to declare to the best of their knowledge, their date and place of birth. 312. This item will clarify that a statutory declaration is only to be used in exceptional circumstances. The term impracticable does not mean inconvenient. For example, it is not impracticable for a person born in Australia to apply to the state or territory Registries of Births, Deaths and Marriages for a copy of their birth certificate. Item 33 - At the end of paragraph 42(1)(b) 313. This item will provide that the amendments to section 42, the identity requirements, apply in relation to a NOIM given after the commencement of this part. Part 6--Notice of intended marriage and consent Marriage Act 1961 Item 34 - Paragraph 42(1)(c) 314. Paragraph 42(1)(c) of the Marriage Act relates to the declaration by the parties, prior to the marriage being solemnised, that there is no legal impediment to the marriage. This item will provide that the declaration must be done 'in the physical presence of that authorised celebrant'. Item 35 - Paragraph 42(2)(c) 315. Paragraph 42(1)(c) relates to the signing of the NOIM by the parties where they are in Australia and the authorised witness, who is also in Australia. This item will provide an option for the NOIM to be signed 'under the observation' of an authorised witness who is in Australia, in person or via audio and visual communication. This provides an option to the parties who can sign the NOIM in person or remotely. 316. An authorised witness under paragraph 42(2)(c), is not lawfully authorised to witness the signing of the NOIM where one or both parties are overseas. Item 36 - Subparagraphs 42(2)(c)(i) to (iii) 317. Subparagraphs 42(2)(c)(i)-(iii) provides a list of authorised witnesses who can witness the signing of a NOIM in Australia where the parties are in Australia. This item will remove the word 'or' from subparagraphs 42(2)(c)(i) to (iii). Item 37 - Subparagraph 42(2)(c)(iv) 318. Subparagraph 42(2)(c)(iv) provides a list of authorised witnesses who can witness the signing of a NOIM in Australia. This item will remove the second occurrence of the word 'or'. 69

Item 38 - Subparagraph 42(2)(c)(v) 319. Subparagraph 42(2)(c)(iv) provides a list of authorised witnesses who can witness the signing of a NOIM in Australia. This item will remove the word 'or' from subparagraph 42(2)(c)(v). Item 39 - Paragraph 42(2)(d) 320. Paragraph 42(2)(d) provides a list of overseas authorised witnesses who can witness the signing of a NOIM where the parties are outside Australia. This item will provide an option for the NOIM to be witnessed 'under the observation' of an authorised witness who is outside Australia, in person or via audio and visual communication. This provides an option to the parties as to how they sign the NOIM, in person or remotely. Item 40 - Subparagraphs 42(2)(d)(i) to (iv) 321. This item will remove the word 'or' from the list of authorised witnesses overseas. Item 41 - Subsection 42(3) 322. Subsection 42(3) provides that where the signature of one party (for example Party B) cannot be conveniently obtained, the NOIM may be given to the authorised celebrant with both parties' details completed but where only one signature is provided (by Party A). This item will provide that the signature of the Party B may be done under the observation of an authorised celebrant in Australia before the marriage is solemnised, either in person or via audio and visual communication. Item 42 - Subsection 42(6) 323. Subsection 42(6) provides for the transfer of a NOIM to another authorised celebrant in certain circumstances. The current circumstances for a transfer are limited to death, absence, illness, or any other reason why it is 'impracticable' to solemnise the marriage. This item will repeal subsection 42(6) and replaces the list together with a new ground for transfer: where it is at the request of the parties. This recognises that the information on the NOIM belongs to the parties to the marriage and in circumstances where they wish to engage another authorised celebrant, the first authorised celebrant is required to transfer the notice. Item 43 - Subsection 42(9) 324. Subsection 42(9) provides for an error to be corrected on the NOIM prior to the solemnisation of the marriage. This item will repeal the subsection and replaces the correction power to include the option for a NOIM to be corrected under the observation of an authorised celebrant, whether or not by a facility that enables audio and visual communication. Item 44 - After section 42A 325. This item inserts new 42B after 42A to provide that prior to the solemnisation of a marriage, the authorised celebrant is required to meet with each party separately, and 70

in-person. The consent of the parties, that they freely and voluntarily are entering the marriage, is fundamental to a legally valid marriage. The amendment will codify expectations of authorised celebrants to be confident the parties are fully consenting to the marriage and provide an additional safeguard where the NOIM is signed by the parties and witnessed by an authorised witness (either the celebrant or another authorised person) remotely. Item 45 - Application of amendments 326. This item will provide the amendments to section 42 in relation to a NOIM and consent (items 34-41 and 43; and items 42 and 44), apply after the commencement of Part 6 to this Bill. Part 7--Single registration as authorised celebrant Marriage Act 1961 Item 46 - At the end of paragraphs 29(a) and (b) 327. This item will add an 'and' to paragraphs 29(a) and (b) to make provision for two additional criteria relating to the registration of a minister of religion for a recognised denomination. Item 47 - At the end of section 29 328. This item will provide two new paragraphs (e) and (f) that would ensure that a person who applies to become a minister of religion for a recognised denomination is not already registered as a marriage celebrant under Subdivision B (state officers) or Subdivision C (Commonwealth-registered marriage celebrants). The amendments to section 29 will ensure that an authorised celebrant can only be registered in one Subdivision at any one time. Item 48 - Subsection 31(1) 329. This item will remove the reference to subsection (1) as there are no additional subsections. Subsection 31 provides three grounds for the refusal of a minister of religion of a recognised denomination. Item 49 - At the end of paragraph 31(1)(a) 330. This item will insert the word 'or' to clarify that any one of the three grounds may lead to the refusal by the Registrar of Births, Deaths and Marriages, to register a minister of religion for a recognised denomination. Item 50 - Subsection 39(2) 331. This item will insert the phrase 'and subject to subsection (2A)' after the word 'writing' in subsection 39(2). Subsection 39(2) sets out the powers to appoint officers of a state and territory to solemnise marriages under Subdivision B. Subsection 39(2) will be amended as follows, 'The Minister may, by instrument in writing and subject 71

to subsection (2A), authorise other officers of a State or Territory to solemnise marriages. Item 51 - After Subsection 39(2) 332. This item will insert new subsection 39(2A) to provide the Minister must not authorise an officer of a State or Territory to solemnise a marriage if they are registered under subdivision A (Ministers of Religion for a recognised denomination) or subdivision C (a Commonwealth-registered marriage celebrant) of this division. Item 52 - Subsection 39A(5) (after table item 5) 333. This item will insert a reference to '5A' by which a person's name must be removed from the register of marriage celebrants (new paragraph 39K(aa) of the Marriage Act). Item 53 - At the end of subsection 39C(1) 334. This item will add two subdivisions of authorised celebrants to the list of eligibility criteria to become a Commonwealth-registered marriage celebrant under subdivision C. This amendment provides that a person may only be registered as a subdivision C celebrant if they are not a subdivision A (minister of religion for a recognised denomination) and subdivision B (State or Territory officer). Item 54 - After paragraph 39K(a) 335. Section 39K of the Marriage Act sets out additional functions of the Registrar of Marriage Celebrants. This item will include a new paragraph 39K(aa) to provide the Registrar with authority to remove the name of a person from the register of marriage celebrants in accordance with regulations made for the purposes of this paragraph. Item 55 - Application of amendments 336. This item will provide that the amendments of sections 29, 39(2) and 39C(1) made by this Part, relating to the single registration of a person as an authorised celebrant, applies to applications received after the commencement of this Part. Schedule 4--Other amendments Part 1--Arbitration Family Law Act 1975 337. Section 13G of the Family Law Act 1975 allows an arbitrator to refer a question of law arising from the arbitration to the Federal Circuit and Family Court of Australia (FCFCOA) (Division 2) or a single judge of a Family Court of a State for determination. Section 13J allows a party to apply to the FCFCOA (Division 2) or a single judge of a Family Court of a State to review a registered arbitral award on a question of law. 338. Some parties with proceedings in the FCFCOA (Division 1) may consent to have their matter determined using arbitration. Proceedings in the FCFCOA (Division 1) can be 72

complex. If an application under sections 13G or 13J is made in these arbitrations, the FCFCOA administratively transfers the application from the FCFCOA (Division 2) to the FCFCOA (Division 1) to be determined. This means the application is heard by Division 2 when the proceedings are pending in Division 1. This process creates an administrative burden for courts and creates delay for the arbitrator and parties. Items 1 to 7 are intended to address this by establishing that both Divisions of the FCFCOA may determine these applications. Item 1 - Section 13G (heading) 339. This item will omit '(Division 2)' from the heading to section 13G. This will reflect the effect of the amendments in items 2 and 3 which will remove the current limitation for applications in an arbitration to be made in Division 2, but not Division 1, of the FCFCOA. Item 10 - Paragraph 13G(1)(a) 340. Subsection 13G(1) enables an arbitrator of a section 13E arbitration (court-ordered arbitration) or a relevant property or financial arbitration (privately arranged arbitration) to refer a question of law arising in that arbitration for determination by the FCFCOA (Division 2) or a single judge of a Family Court of a State. 341. This item will omit the reference to '(Division 2)' in paragraph 13G(1)(a). The effect of this amendment is that an arbitrator of a section 13E arbitration (court-ordered arbitration) or a relevant property or financial arbitration (privately arranged arbitration) may refer a question of law arising in that arbitration to a judge of the FCFCOA (Division 1) or the FCFCOA (Division 2). The ability for an arbitrator to refer a question of law to a single judge of a Family Court of a State under paragraph 13G(1)(b) remains unchanged. Item 11 - Subsection 13G(3) 342. Subsection 13G(3) prevents an arbitrator from making an award in an arbitration before the judge or FCFCOA (Division 2) has either determined the question of law, or returned the matter to the arbitrator to continue the arbitration because no question of law arises. 343. This item will omit '(Division 2)' in subsection 13G(3). The effect of this amendment is that a judge of the FCFCOA (Division 1) or a judge of the FCFCOA (Division 2) or a single judge of the Family Court of a State is able to determine the question or law or remit the matter to the arbitrator having found that no question of law arises. Item 12 - Section 13J (heading) 344. Subsection 13J enables a party to a registered award made in section 13E arbitration (court-ordered arbitration) or relevant property or financial arbitration, (privately arranged arbitration) to apply for review of the award, on questions of law. 345. This item will omit '(Division 2)' from the heading to section 13J. This will reflect the effect of the amendments in items 5 and 6 which will remove the current limitation for the review of an award registered with a court exercising jurisdiction 73

under the Family Law Act 1975, to be made in Division 2, but not Division 1, of the FCFCOA. Item 13 - Paragraph 13J(1)(a) 346. Subsection 13J enables a party to a registered award made in section 13E arbitration (court-ordered arbitration) or relevant property or financial arbitration, (privately arranged arbitration) to apply for review of the award, on questions of law. 347. This item will omit reference to '(Division 2)' in paragraph 13J(1)(a). The effect of this amendment is that a party of a section 13E arbitration (court-ordered arbitration) or a relevant property or financial arbitration (privately arranged arbitration) may apply for review of the award, on questions of law, by a judge of the FCFCOA (Division 1) or the FCFCOA (Division 2). The ability for a party to apply for review of a registered award by a single judge of a Family Court of a State under paragraph 13J(1)(b) remains unchanged. Item 14 - Subsection 13J(2) 348. Subsection 13J(2) enables the judge or FCFCOA (Division 2) to determine all questions of law arising in relation to the arbitration and make such decrees to affirm, reverse or vary the registered award as the judge of the FCFCOA (Division 2) thinks appropriate. 349. This item will omit reference to '(Division 2)' wherever it occurs in subsection 13J(2). The effect of this amendment is that a judge of the FCFCOA (Division 1) or a judge of the FCFCOA (Division 2) or a single judge of a Family Court of a State can determine all questions of law when reviewing a registered arbitral award and make any decree appropriate, including a decree affirming, reversing or varying the registered award. Item 15 - Application of amendments 350. This item will provide that the amendments made to sections 13G and 13J would apply to applications made by arbitrators and parties to an arbitration on or after the day that schedule 4 commences, as set out in clause 2 of the Bill. Part 2-- Assistance from Attorney General Native Title Act 1993 Item 8 - Subsection 94P(1) (table item 3) 351. This item will repeal item 3 of the table under subsection 94P(1) of the Native Title Act. With the repeal of section 213A this item of the table is no longer required. Item 9 - Section 213A 352. This item will repeal section 213A of the Native Title Act. Section 213A provides for assistance from the Attorney-General in certain circumstances. 74

Item 10 - Application of amendments 353. Sub-item 10(1) will provide that, despite the repeal of item 3 of the table under subsection 94P(1) of the Native Title Act by this part, item 3 of the table under subsection 94P(1) continues to apply in relation to parties provided with funds before the commencement of this item. This will ensure that a mediator can continue to report relevant conduct that is not in good faith. 354. Sub-item 10(2) will provide that if a person has made an application for the provision of financial assistance under section 213A of the Native Title Act before the commencement of this item, and the Attorney-General has not made a decision on the application before that time, the application is taken never to have been made and the Attorney-General is not required to consider outstanding applications for funding under section 213A of the Native Title Act. Part 3--Corrections Federal Circuit and Family Court of Australia Act 2021 Item 11 - Paragraph 76(4)(b) 355. Subsection 76(4) provides that the Legislation Act 2003 applies in relation to the Rules of Court subject to modifications or adaptations provided for in regulations made under section 284 of the FCFCOA Act. The reference to section 284 is incorrect. 356. This item will correct this error by omitting the reference to section 284 in paragraph 76(4)(b) and substituting a reference to section 285. Item 12 - Subsection 174(1) (note) 357. The note to subsection 174(1) indicates that regulations are made under section 284 of the FCFCOA Act. The reference to section 284 is incorrect. 358. This item will correct this error by omitting the reference to section 284 and substituting a reference section 285. Item 29 - Paragraph 217(3)(b) 359. Subsection 217(3) provides that the Legislation Act 2003 applies in relation to Rules of the Court subject to such modifications or adaptations provided for in regulations made under section 284 of the FCFCOA Act. The reference to section 284 is incorrect. 360. This item will correct this error by omitting the reference to section 284 in paragraph 217(3)(b) and substituting a reference to section 285. 75

Federal Court of Australia Act Item 14 - Subsection 23CD(2) (note) 361. This item will repeal the note to subsection 23CD(2) of the Federal Court Act. The note makes reference to disclosure obligations under subsection 44ZZRO(2) of the Competition and Consumer Act 2010. Section 44ZZRO was amended, and renumbered to be section 45AO, by the Competition and Consumer Amendment (Competition Policy Review) Act 2017. The amended provision no longer provides disclosure objections and therefore the note to subsection 23CD(2) of the Federal Court Act is no longer required. Items 15-16 - Typographical corrections 362. These items will make corrections to typographical errors of cross references to provisions in the Competition and Consumer Act 2010 which were renumbered by Competition and Consumer Amendment (Competition Policy Review) Act 2017, as set out in the following table. New cross reference to Previous cross Federal Court Act provision in which Competition and reference cross reference occurs Consumer Act 2010 45AF 44ZZRG Paragraph 58DB(2A)(a) (item 15) 45AG 44ZZRG Paragraph 58DB(2A)(b) (item 16) 76

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