Bills Digest no. 125 2011–12
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This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Mary Anne Neilsen
Law and Bills Digest Section
22 March 2012
14 March 2012
House of Representatives
Schedule 1 commences the day after Royal Assent. Schedule 2 commences six months after Royal Assent, or earlier by Proclamation
Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.
The Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012 (the Bill) seeks to remedy an administrative oversight by the Attorney-General’s Department affecting the validity of certain court orders made under the Family Law Act 1975. More specifically, the Bill seeks to remove uncertainty about the status of certain family law orders that have been made in the absence of Proclamations permitting the exercise of jurisdiction under the Family Law Act. These orders are of the Family Court of Australia and the Federal Magistrates Court of Australia in respect to de facto property matters and orders of the Family Court of Australia made on appeal from Family Law Magistrates in Western Australia.
In 2008, the Family Law Act was amended by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (the 2008 Act) to provide for de facto couples (both opposite-sex and same-sex) to access the federal family law courts on property and maintenance matters. This legislation was reliant on the states referring their powers relating to de facto financial matters to the Commonwealth in accordance with section 51(xxxvii) of the Constitution.
As the Explanatory Memorandum to the Bill explains, the Family Law Act provides that the Family Court of Australia can only validly exercise its jurisdiction following a conferral of jurisdiction and a valid Proclamation under subsection 40(2) of the Family Law Act being made. The jurisdiction in relation to de facto financial causes was conferred on the Family Court by the 2008 Act and that conferral commenced on 1 March 2009 for each state and territory (except South Australia and Western Australia) under paragraph 31(1)(aa) of the Family Law Act. The jurisdiction commenced on 1 July 2010 in respect of South Australia, however Western Australia is not affected as it has not referred its powers in respect of de facto financial causes to the Commonwealth.
In relation to the 2008 Act, a Proclamation was not made in 2009 (nor in 2010 for South Australia) as required by subsection 40(2) of the Family Law Act, to set the date from which the Family Court of Australia could exercise the referred jurisdiction in relation to de facto financial causes. However, when this oversight was recognised, a Proclamation was made more recently, setting 11 February 2012 as the date on and after which the Family Court could exercise this jurisdiction.
A similar issue surrounds some appeals from Family Law Magistrates in WA. In 2006, the Jurisdiction of Courts (Family Law) Act 2006 made amendments to the Family Law Act to provide for appeal rights to the Family Court of Australia from various decrees and decisions of Family Law Magistrates in Western Australia. A Proclamation was not made at this time to allow the Family Court to exercise jurisdiction to hear these appeals. A Proclamation has since been made setting 21 October 2011 as the date on and after which the Family Court of Australia can exercise this jurisdiction.
According to the Minister’s Second Reading Speech, this failure to issue a Proclamation was an oversight of the Attorney-General’s Department.
The Department should have briefed the Attorney-General of the time of the need to advise the Governor-General to make a Proclamation under section 40 of the Family Law Act 1975. In both instances, being 2006 and again in 2009, this was not done.
Part 1 of Schedule 1 of the Bill creates new statutory rights and liabilities identical to those that would have been derived from orders if a Proclamation under subsection 40(2) of the Family Law Act had been made at the time the de facto financial causes jurisdiction was conferred on the Family Court of Australia.
Item 1 of Schedule 1 of the Bill sets out relevant definitions for this Part. Any other expression not defined under this item is to have the same meaning as in the Family Law Act (subitem 1(2)).
Item 2 is the central clause of Part 1 of Schedule 1 of the Bill. Subitem 2(1) states that the rights and liabilities of all persons are by force of this item declared to be, and always to have been, the same as if the following assumed matters had been the case:
The ‘assumed matters’ include:
- Proclamations having been made under subsection 40(2) of the Family Law Act:
- fixing 1 March 2009 as the date on and after which jurisdiction of the Family Court of Australia under paragraph 31(1)(aa) of the Family Law Act could be exercised in each of the states and territories, except South Australia and Western Australia (subitem 2(1)(a))
- fixing 1 July 2010 as the date on and after which jurisdiction of the Family Court of Australia under paragraph 31(1)(aa) of the Family Law Act could be exercised in South Australia (subitem 2(1)(b)), and
- each of those Proclamations had been in force at all times from the start of the date fixed by Proclamation to the end of 10 February 2012.
In other words, item 2 will apply to de facto property orders that have been made by the Family Court and the Federal Magistrates Court between:
- 1 March 2009 and 10 February 2012 in New South Wales, Victoria, Queensland, Tasmania, Australian Capital Territory, Northern Territory and Norfolk Island, and 1 July 2010 and 10 February 2012 in South Australia.
Subitem 2(2) of Part 1 of Schedule 1 of the Bill provides a non-exhaustive list of the things that people are entitled to do or have done in relation to the rights and responsibilities conferred under subitem 2(1).
Subitem 2(3) of Part 1 of Schedule 1 of the Bill is an exception relating to criminal matters. It clarifies that nothing in item 2 applies to liabilities arising from a conviction before the commencement of this Part, of a person for an offence that relates to a de facto financial cause.
Subitems 2(4) and 2(5) of Part 1 of Schedule 1 of the Bill further clarify what orders are to be affected by item 2. The Explanatory Memorandum states that the purpose of clarification is to ensure that the operative provisions in the Bill do not apply to orders made by courts, in the exercise of their de facto financial causes jurisdiction, that have not been and are not affected by the absence of a subsection 40(2) Proclamation.
Item 3 of Part 1 of Schedule 1 of the Bill sets out the relationship and connection between the orders affected by item 2 and new orders.
Item 5 of Part 1 of Schedule 1 of the Bill provides that Part 1 does not apply to any order specifically declared or held to be invalid or to have been made without power by a court before the commencement of Part 1, regardless of whether the basis for that determination of invalidity is the absence of a Proclamation or any other reason. The Explanatory Memorandum states that this provision will ensure that Part 1 does not override any finding of a court as to the validity of an ‘affected order’ prior to the commencement of the Part.
Item 6 of Part 1 of Schedule 1 of the Bill provides for the conferral of jurisdiction on courts with respect to matters arising under Part 1. The courts are the Family Court of Australia, the Federal Magistrates Court of Australia, and the relevant state and territory courts as set out under subsection 39B(1) of the Family Law Act as having jurisdiction in de facto financial causes.
Part 2 of Schedule 1 of the Bill deals with orders on appeal from Family Law Magistrates of Western Australia to the appellate jurisdiction of the Family Court of Australia. As noted above, in 2006, the Jurisdiction of Courts (Family Law) Act 2006 made amendments to the Family Law Act to provide for appeal rights to the Family Court of Australia from various decrees and decisions of Family Law Magistrates in Western Australia. A subsection 40(2) Proclamation was not made at this time to allow the Family Court to exercise jurisdiction to hear these appeals. However, a Proclamation has since been made setting 21 October 2011 as the date on and after which the Family Court of Australia can exercise this jurisdiction.
Part 2 of Schedule 1 of the Bill is generally drafted in the same terms as Part 1. So, for example, item 8 in Part 2 is the equivalent of item 2 in Part 1. Item 8 is the principal provision of Part 2, and creates new statutory rights and liabilities identical to those that would have been derived from orders if a subsection 40(2) Proclamation had been made at the time the jurisdiction to hear appeals from Family Law Magistrates in Western Australia was conferred on the Family Court of Australia (that is from 1 July 2006 until 21 October 2011).
The amendments in Schedule 2 of the Bill are consequential on Schedule 1, their purpose being to prevent future errors similar to the ones that this Bill is seeking to remedy.
Item 2 repeals subsections 40(1) and (2) of the Family Law Act. The effect is to remove the requirement for a Proclamation to be made in respect of fixing a date on and after which jurisdiction of the Family Court of Australia under the Family Law Act could be exercised in each of the states and territories.
Item 2 also substitutes a new subsection 40(1) into the Family Law Act, which provides for regulations to be made to restrict the exercise of jurisdiction of the Family Court in relation to all or a specified class of proceedings in specified states or territories. Presumably regulations would be needed in relation to Western Australia where the state Family Court in Western Australia has been invested with federal jurisdiction and where the Family Court of Australia has no original jurisdiction.
The design of the new subsection 40(1) of the Family Law Act will, in contrast to the existing provision, leave the Family Court of Australia with a default ability to exercise jurisdiction validly conferred on it. This differs from the existing provision which requires something additional to happen, in the form of a Proclamation, before the court is able to validly exercise jurisdiction.
The Bill does have retrospective application in the sense that its main purpose is to put individuals in the same place they would have been if the relevant Proclamation had been made on time. A question that might arise is whether this retrospective application may impinge on peoples’ human rights.
The Explanatory Memorandum states that the Bill is compatible with the human rights and freedom recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
In relation to retrospectivity, the Explanatory Memorandum further notes that the Bill does not have retrospective application in relation to criminal offences and points particularly to the clauses that protect against prosecution for retrospective criminal offences.
The Senate Standing Committee for the Scrutiny of Bills in its most recent Alert Digest, also commented on the Bill, stating that it understands the proposed approach, notes the justification provided for it and, in general, leaves the question of whether the proposed approach is appropriate to the consideration of the Senate as a whole.
However, the Committee also seeks the Attorney-General's advice as to the whether any of the amendments in the Bill are likely to have an adverse effect on any legal proceedings that have been initiated, but are not yet finalised.
Pending the Attorney-General's reply, the Committee draws Senators’ attention to this issue, as it may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the Committee’s terms of reference.
Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2438.
. Explanatory Memorandum, Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012, p. 1.
. The differing date was due to the fact that South Australia delayed in referring its powers to do with de facto financial matters to the Commonwealth.
. Explanatory Memorandum, p. 3.
. 11 February 2012 was the date when a Proclamation was made to remedy the previous omissions regarding jurisdiction for the Family Court.
. Explanatory Memorandum, p. 8.
. Note that Western Australia is not included.
. Explanatory Memorandum, p. 3.
. Ibid., p. 4. See subitem 2(3) above for a description of one of these clauses.
. Senate Standing Committee for the Scrutiny of Bills, Alert Digest, no. 4, 2012, p. 5.
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