Service and Execution of Process (Transitional Provisions and Consequential Amendments) Act 1992
No. 166 of 1992
An Act to repeal the Service and Execution of Process Act 1901, and to make transitional provisions and certain amendments consequential upon the enactment of the Service and Execution of Process Act 1992
[Assented to 11 December 1992]
The Parliament of Australia enacts:
Short title
1. This Act may be cited as the Service and Execution of Process (Transitional Provisions and Consequential Amendments) Act 1992.
Commencement
2. This Act commences on the day fixed by Proclamation under subsection 2(4) of the Service and Execution of Process Act 1992.
Repeal
3. The Service and Execution of Process Act 1901 is repealed.
Transitional provisions
4.(1) If a process was served under Part II of the Service and Execution of Process Act 1901 before this Act commenced, that Part and any rules or regulations relating to the operation of that Part continue to apply with respect to the process, and any action taken in connection with the process, as if the Service and Execution of Process Act 1901 had not been repealed.
(2) If, before this Act commenced:
(a) a warrant was endorsed under section 18 of the Service and Execution of Process Act 1901; or
(b) a provisional warrant was issued under section 19A of that Act; or
(c) leave was given under section 19C of that Act;
Part III of that Act and any rules or regulations relating to the operation of that Part continue to apply with respect to the warrant, provisional warrant or leave, and any action taken in connection with the warrant, provisional warrant or leave, as if that Act had not been repealed.
(3) If, before this Act commenced:
(a) leave was given under section 19M of the Service and Execution of Process Act 1901 in relation to a subpoena; or
(b) an order was made under section 19T of that Act; or
(c) a warrant to which Division 4 of Part 3A of that Act applies was issued;
Part IIIA of that Act and any rules or regulations relating to the operation of that Part continue to apply with respect to the subpoena, order or warrant, and any action taken in connection with the subpoena, order or warrant, as if that Act had not been repealed.
(4) If a certificate of judgment was registered under section 21 of the Service and Execution of Process Act 1901 before this Act commenced, Part IV of that Act and any rules or regulations relating to the operation of that Part continue to apply with respect to the judgment, and any action taken in connection with the judgment, as if that Act had not been repealed.
(5) If a warrant was issued under section 26D of the Service and Execution of Process Act 1901 before this Act commenced, Part IVA of that Act and any rules or regulations relating to the operation of that Part continue to apply with respect to the warrant, and any action taken in connection with the warrant, as if that Act had not been repealed.
(6) In this section:
“regulations” means the regulations made under section 28 of the Service and Execution of Process Act 1901 that were in force immediately before this Act commenced;
“rules” means the rules of court made under section 27 of the Service and Execution of Process Act 1901 that were in force immediately before this Act commenced.
Consequential amendments of other Acts
5. The Acts specified in the Schedule are amended as set out in the Schedule.
SCHEDULE Section 5
CONSEQUENTIAL AMENDMENTS OF OTHER ACTS
Admiralty Act 1988
Section 23:
Omit “Service and Execution of Process Act 1901”, substitute “Service and Execution of Process Act 1992”.
Foreign Judgments Act 1991
Subsection 6(8):
Omit “Part IV of the Service and Execution of Process Act 1901”, substitute “Part 6 of the Service and Execution of Process Act 1992”.
Subsection 7(1):
Omit “Part IV of the Service and Execution of Process Act 1901”, substitute “Part 6 of the Service and Execution of Process Act 1992”.
Proceeds of Crime Act 1987
Paragraph 90(1)(d):
Omit “Service and Execution of Process Act 1901”, substitute “Service and Execution of Process Act 1992”.
Transfer of Prisoners Act 1983
Subparagraph 21(b)(iii):
Omit “Part IVA of the Service and Execution of Process Act 1901”, substitute “Part 7 of the Service and Execution of Process Act 1992”.
Paragraph 30(b):
Omit “Service and Execution of Process Act 1901”, substitute “Service and Execution of Process Act 1992”.
[Minister’s second reading speech made in—
Senate on 10 September 1992
House of Representatives on 9 November 1992]
Overview
The Service and Execution of Process (Transitional Provisions and Consequential Amendments) Act 1992, enacted by the Parliament of Australia, was introduced to facilitate a smooth transition from the outdated Service and Execution of Process Act 1901 to the new Service and Execution of Process Act 1992. This Act aims to ensure continuity in legal processes by maintaining the application of certain sections of the repealed Act to processes and actions that were initiated before the commencement of this Act. The policy objective is to prevent any disruption in the legal proceedings that were already underway due to the repeal of the older Act, thereby maintaining the integrity and continuity of the judicial system.
The Act not only repeals the Service and Execution of Process Act 1901 but also makes several consequential amendments to other relevant Acts to reflect the changes brought about by the new legislation. This ensures that references to the repealed Act in various statutes are updated to refer to the new Act, thus maintaining consistency across the legal framework. By addressing transitional issues and ensuring that existing legal processes are not adversely affected, this Act serves to uphold the efficiency and effectiveness of the judicial system during the period of legislative change.
Scope and Application
The Service and Execution of Process (Transitional Provisions and Consequential Amendments) Act 1992 is a Commonwealth Act that repeals the Service and Execution of Process Act 1901, and makes transitional provisions and certain amendments to other Acts to ensure the continued validity of certain legal processes that were served or initiated under the repealed Act. This Act applies to any legal processes, warrants, subpoenas, certificates of judgment, or warrants issued under the repealed Act that were in progress or pending before the commencement of this Act. The transitional provisions ensure that the former provisions of the Service and Execution of Process Act 1901 continue to apply to these processes, until they are completed or resolved. The Act applies to persons and entities involved in legal proceedings in Commonwealth courts, and any other legal processes governed by the former Act. The Act also amends other Commonwealth Acts to reflect the repeal of the former Act and to ensure consistency in the application of the law. The Act does not contain any stated exclusions, exemptions, or thresholds. However, the application of the Act may be extended or restricted through subordinate instruments made under the authority of the Act or other relevant legislation.
Key Provisions
The Service and Execution of Process (Transitional Provisions and Consequential Amendments) Act 1992 (sections 1-6) repeals the Service and Execution of Process Act 1901 and provides for the continued application of certain provisions of that Act until this Act commences. Section 4 ensures that processes served or warrants, provisional warrants, subpoenas, orders, or warrants issued under the repealed Act remain valid and enforceable as if the old Act had not been repealed. This includes provisions relating to the service of process, execution of judgments, and other legal actions that were in progress before the new Act came into force. The Act also makes amendments to other specified Acts to reflect the repeal of the Service and Execution of Process Act 1901 (section 5).
Under the Act, the obligations of the parties involved in legal proceedings that were in progress before the commencement of the new Act are largely unchanged. This means that any process served, warrants issued, or other actions taken under the repealed Act continue to be valid and enforceable as if the old Act had not been repealed. The Act also imposes an obligation on the courts and legal practitioners to continue to apply the relevant provisions of the repealed Act to any proceedings that were ongoing at the time of the new Act's commencement. This ensures that the legal rights and obligations of the parties involved in these proceedings are not disrupted by the change in legislation.
The Act does not create any new offences or penalties for breach of its provisions. However, it is important to note that any breach of the provisions of the Service and Execution of Process Act 1901 that were in force before the new Act commenced may still be subject to the penalties and consequences set out in that Act. The penalties for breach of the Service and Execution of Process Act 1901 varied depending on the specific provision that was breached, and could include fines, imprisonment, or other civil or criminal consequences. The maximum penalties for breach of the Service and Execution of Process Act 1901 are not specified in the new Act, but would typically be set out in the relevant provision of the old Act.