Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Hansard source

I present a supplementary explanatory memorandum to the bill and I seek leave to move government amendments (1) to (15) together.

Leave granted.

I move:

(1)    Schedule 1, item 5, page 5 (line 27), omit “with the leave of that court”.

(2)    Schedule 1, item 6, page 5 (line 32), omit “with the leave of that court”.

(3)    Schedule 1, item 7, page 6 (line 3), omit “leave”.

(4)    Schedule 1, item 14, page 9 (after line 12), after section 18B, insert:

18C Article 18—reasonable opportunity to present case

                 For the purposes of Article 18 of the Model Law, a party to arbitral proceedings is taken to have been given a full opportunity to present the party’s case if the party is given a reasonable opportunity to present the party’s case.

(5)    Schedule 1, item 16, page 9 (lines 27 to 30), omit section 21, substitute:

21 Model Law covers the field

                 If the Model Law applies to an arbitration, the law of a State or Territory relating to arbitration does not apply to that arbitration.

(6)    Schedule 1, page 9 (after line 30), after item 16, insert:

16A Division 3 of Part III (heading)

Repeal the heading, substitute:

Division 3—Additional provisions

(7)    Schedule 1, page 9, after proposed item 16A, insert:

16B Section 22

Repeal the section, substitute:

22 Application of additional provisions

Application to arbitration under Model Law

        (1)    This Division applies to any arbitration to which the Model Law applies.

Application of sections 23, 23A, 23B, 23J, 23K, 25, 26 and 27

        (2)    Each of the following sections applies to arbitral proceedings commenced in reliance on an arbitration agreement unless the parties to the agreement agree (whether in the agreement or otherwise in writing) that it will not apply:

             (a)    section 23;

             (b)    section 23A;

             (c)    section 23B;

             (d)    section 23J;

             (e)    section 23K;

              (f)    section 25;

             (g)    section 26;

             (h)    section 27.

Application of sections 23C, 23D, 23E, 23F and 23G

        (3)    The following sections apply to arbitral proceedings commenced in reliance on an arbitration agreement if the parties to the agreement agree (whether in the agreement or otherwise in writing) that they will apply:

             (a)    section 23C;

             (b)    section 23D;

             (c)    section 23E;

             (d)    section 23F;

             (e)    section 23G.

Application of section 23H

        (4)    Section 23H applies on the death of a party to an arbitration agreement unless the parties to the agreement agree (whether in the agreement or otherwise in writing) that it will not apply.

Application of section 24

        (5)    Section 24 applies to arbitral proceedings commenced in reliance on an arbitration agreement if the parties to the agreement agree (whether in the agreement or otherwise in writing) that it will apply.

(8)    Schedule 1, item 18, page 10 (line 31) to page 11 (line 4), omit subsection 23(5), substitute:

        (5)    The court must not issue a subpoena under subsection (3) to a person who is not a party to the arbitral proceedings unless the court is satisfied that it is reasonable in all the circumstances to issue it to the person.

(9)    Schedule 1, item 18, page 11 (after line 4), at the end of section 23, add:

        (6)    Nothing in this section limits Article 27 of the Model Law.

(10)  Schedule 1, item 18, page 12 (after line 16), at the end of section 23A, add:

        (6)    Nothing in this section limits Article 27 of the Model Law.

(11)  Schedule 1, item 18, page 16 (after line 30), after section 23H, insert:

23J Evidence

        (1)    An arbitral tribunal may, at any time before the award is issued by which a dispute that is arbitrated by the tribunal is finally decided, make an order:

             (a)    allowing the tribunal or a person specified in the order to inspect, photograph, observe or conduct experiments on evidence that is in the possession of a party to the arbitral proceedings and that may be relevant to those proceedings (the relevant evidence); and

             (b)    allowing a sample of the relevant evidence to be taken by the tribunal or a person specified in the order.

        (2)    The tribunal may only specify a person in the order if the person is:

             (a)    a party to the proceedings; or

             (b)    an expert appointed by the tribunal under Article 26 of the Model Law; or

             (c)    an expert appointed by a party to the proceedings with the permission of the tribunal.

        (3)    The provisions of the Model Law apply in relation to an order under this section in the same way as they would apply to an interim measure under the Model Law.

23K Security for costs

        (1)    An arbitral tribunal may, at any time before the award is issued by which a dispute that is arbitrated by the tribunal is finally decided, order a party to the arbitral proceedings to pay security for costs.

        (2)    However, the tribunal must not make such an order solely on the basis that:

             (a)    the party is not ordinarily resident in Australia; or

             (b)    the party is a corporation incorporated or an association formed under the law of a foreign country; or

             (c)    the party is a corporation or association the central management or control of which is exercised in a foreign country.

        (3)    The provisions of the Model Law apply in relation to an order under this section in the same way as they would apply to an interim measure under the Model Law.

(12)  Schedule 1, page 18 (after line 2), after item 23, insert:

23A Section 28

Repeal the section, substitute:

28 Immunity

        (1)    An arbitrator is not liable for anything done or omitted to be done by the arbitrator in good faith in his or her capacity as arbitrator.

        (2)    An entity that appoints, or fails or refuses to appoint, a person as arbitrator is not liable in relation to the appointment, failure or refusal if it was done in good faith.

(13)  Schedule 1, page 18, after proposed item 23A, insert:

23B At the end of Division 4 of Part III

Add:

30A Severability

                 Without limiting its effect apart from this section, this Part also has the effect it would have if it were confined, by express provision, to arbitrations involving:

             (a)    places, persons, matters or things external to Australia; or

             (b)    disputes arising in the course of trade or commerce with another country, or between the States; or

             (c)    disputes between parties at least one of which is a corporation to which paragraph 51(xx) of the Constitution applies; or

             (d)    disputes arising in the course of trade or commerce in a Territory.

(14)  Schedule 1, item 26, page 18 (lines 15 and 16), omit the heading to Part V, substitute:

Part V—General matters

(15)  Schedule 1, item 26, page 19 (after line 32), at the end of Part V, add:

40 Regulations

                 The Governor-General may make regulations prescribing matters:

             (a)    required or permitted by this Act to be prescribed; or

             (b)    necessary or convenient to be prescribed for carrying out or giving effect to this Act.

The government is proposing a number of amendments to the bill to clarify and supplement the provisions of the bill in order to ensure its overall objectives are achieved. In making these amendments the government has taken into account the issues raised by legal practitioners and experts in the field. In particular, the amendments provide clarification on the scope and operation of the act and clearly specify which of the optional provisions apply by default and which only apply with the express agreement of the parties.

Question agreed to.

Bill, as amended, agreed to.

Ordered that the bill be reported to the House with amendments.

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