Bills Digest No. 120,
2016–17
PDF version [1094KB]
Christina Raymond and Lydia Campbell
Law and Bills Digest Section
29
June 2017
Contents
Purpose of the Bill
Structure of the Bill
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Schedule 1—amendments to the Acts
Interpretation Act 1901
Schedule 2—amendments to the Archives
Act 1983
Schedule 3—amendments to the Bankruptcy
Act 1966
Schedule 4—amendments to the Domicile
Act 1982
Schedule 5—amendments to the Evidence
Act 1995
Schedule 6—amendments to the Family
Law Act 1975
Schedule 7—amendments to the International
Arbitration Act 1974
Schedule 8—amendments to the Legislation
Act 2003
Schedule 9—amendments to the Marriage
Act 1961
Schedule 10—amendments to the Sex
Discrimination Act 1984
Concluding comments
Date introduced: 22
March 2017
House: Senate
Portfolio: Attorney-General
Commencement: the amending
provisions will commence on the day after Royal Assent, except for the
following:
- Schedule
2, Part 1 (Archives Act 1983): a date fixed by proclamation or
six months after Royal Assent.
- Schedule
4 (Domicile Act 1982): three months after Royal Assent.
- Schedule
6, Part 2 (Family Law Act 1975): a date fixed by proclamation or
six months after Royal Assent.
- Schedule
6, Part 3 (re-numbering provisions of the Family Law Act and consequential
amendments to various Acts): 28 days after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at June 2017.
Purpose of
the Bill
The Civil Law and Justice Legislation Amendment Bill 2017
(the Bill) is a type of Bill commonly referred to as an ‘omnibus Bill’.[1]
It proposes to amend 10 pieces of legislation administered by the
Attorney-General, and make consequential amendments to nine Acts administered
by other portfolios.
In his second reading speech on the Bill, the
Attorney-General stated that the proposed amendments are intended to improve
the operation and clarity of civil justice legislation, generally by
modernising, simplifying and clarifying existing provisions, and repealing
redundant provisions.[2]
It was said that these amendments would improve access to justice by ‘making it
easier for individuals to understand and comply with the law’.[3]
While the majority of the proposed amendments appear to be
largely technical in nature, some would substantively amend the legal rights
and liabilities of persons and entities that are subject to regulation.
This includes through the enactment of new criminal offences and
arrest-related powers (including provisions authorising the use of lethal
force) in certain family law matters.
Structure
of the Bill
The Bill contains 10 schedules, which propose to make the
following amendments:
- Acts Interpretation
Act 1901 (Schedule 1)—re-inserting validating provisions dealing
with the exercise of Ministerial powers, which are stated to have been repealed
mistakenly in 2014[4]
- Archives Act 1983
(Schedule 2)—amending the arrangements governing public access to
Commonwealth records to enable the extension of the statutory timeframe within
which the National Archives of Australia (NAA or Archives) must respond to an
application for access. These measures are designed to manage
high-volume applications. Other proposed amendments would repeal outdated
provisions that do not reflect the NAA’s current services or use of technology
- Bankruptcy Act 1966
(Schedule 3)—amending provisions conferring jurisdiction on federal
courts to include an express provision stating that the Family Court of
Australia has jurisdiction when a trustee applies to have a financial agreement
set aside under the Family Law Act 1975
- Domicile Act 1982
(Schedule 4)—extending the operation of the Act to expressly cover the
external territories of Christmas Island, Cocos (Keeling) Islands and Norfolk
Island (rather than by regulation)
- Evidence Act 1995
(Schedule 5)—extending the timeframe in the rules regarding the presumed
receipt of domestic prepaid postal articles to accord with changes to Australia
Post delivery times
- Family Law Act 1975
and consequential amendments to nine other Acts[5]
(Schedule 6). Some measures were contained in the Family
Law Amendment (Financial Agreements and Other Measures) Bill 2015, which
lapsed upon the dissolution of the 44th Parliament on 9 May 2016.[6]
Amendments are directed to:
- strengthening
Australia’s response to international parental child abduction, including
through the introduction of new offences for the wrongful retention of a child
overseas; the application of extended geographical jurisdiction to the new offences
and existing offences in the Family Law Act for the wrongful removal of
a child; rules for the making of arrests under the Family Law Act; and
extending the provisions conferring standing upon persons to make application
to the Family Court for location orders
- extending
the range of persons who may exercise the powers of the Registry Manager in the
Family Court of Australia or any other court
- improving
the consistency of financial provisions for de facto and married couples
- repealing
redundant provisions, and making technical amendments, including to definitions
- International
Arbitration Act 1974 (Schedule 7)—amending provisions dealing
with the enforcement in Australia of foreign arbitral awards to ensure that
Australia’s legislation is interpreted consistently with international practice
under the Convention
on the Recognition and Enforcement of Foreign Arbitral Awards[7]
- Legislation Act
2003 (Schedule 8)—amending provisions governing the preparation
of compilations Acts or instruments for inclusion on the Federal Register of
Legislation, in order to make clear when compilations are not required to be
prepared (namely, in relation to provisions that cease to be in force other
than by repeal, and in the case of retrospective amendments)
- Marriage Act 1961
(Schedule 9)—amending provisions governing parental consent for the
marriage of minors to align concepts and terminology with the Family Law Act;
and other technical amendments including in relation to the registration of
marriage celebrants and the maintenance of the register
- Sex Discrimination
Act 1984 (Schedule 10)—repealing an exemption for discrimination
against women in connection with employment, engagement or appointment to
positions in the Australian Defence Force (ADF) involving combat duties, to
reflect government policy to remove gender restrictions from combat roles.
Committee
consideration
Senate Standing Committee on Legal
and Constitutional Affairs
On 30 March 2017, the Senate Standing Committee for the
Selection of Bills referred the Bill to the Senate Standing Committee on Legal
and Constitutional Affairs (Legal and Constitutional Affairs Committee) for
inquiry and report.[8]
The Legal and Constitutional Affairs Committee tabled its
report on the Bill on 10 May 2017 and recommended the passage of the Bill subject
to some amendments.[9]
The Committee’s recommendations and supporting analysis on relevant measures
are discussed in the ‘key issues and provisions’ section of this Bills Digest.
In short, recommendations focused on the amendments to the Family
Law Act in Schedule 6, and particularly the inclusion of exceptions
to the proposed offences relating to international parental child abduction,
and additional safeguards to the arrest-related powers.[10]
Another recommendation addressed technical issues in the drafting of the
proposed amendments to the bankruptcy jurisdiction of the family law courts in Schedule
3.[11]
The Committee also urged the Government to take
administrative action relating to some of the proposed amendments to the International
Arbitration Act (Schedule 7) and the Marriage Act (Schedule
9) although it did not make formal recommendations about these matters. This
included making certain amendments to the Explanatory Memorandum, providing
confirmation that the Government has sought the advice of the Solicitor‑General
on certain constitutional issues, and updating administrative guidelines.[12]
Senate Standing Committee for the
Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills (Scrutiny
of Bills Committee) reported on its consideration of the Bill on 29 March and 10
May 2017. The Committee focused on the proposed amendments to the Family Law
Act in Schedule 6 and the proposed amendments to the International
Arbitration Act in Schedule 7.[13]
In particular, the Scrutiny of Bills Committee:
- drew
the attention of the Senate to the retrospective application of item 32 of
Schedule 6 in relation to proposed amendments to subsection 117C(2) of the Family
Law Act. (Subsection 117C(2) imposes a prohibition on parties in certain family
law proceedings from disclosing to the court the fact that an offer of
settlement has been made and its terms, except when the court is considering the
making of a costs order)[14]
- expressed
a preference that the authorisation in item 35 of Schedule 6 of certain
persons to use force (including lethal force) in exercising powers of arrest
under the Family Law Act, are framed more narrowly. The Committee
recommended that a proposal to authorise all Australian Public Service
employees at the Department of Immigration and Border Protection should instead
be limited to Australian Border Force officers[15]
and
- requested
the Attorney-General to amend the Explanatory Memorandum to include further
explanation of the application of item 5 of Schedule 7, which provides that
some of the proposed amendments to the International Arbitration Act will
apply to arbitral proceedings that were on foot prior to the commencement of
the proposed amendments in the Bill.[16]
Parliamentary Joint Committee on
Human Rights
On 9 May 2017, the Parliamentary Joint Committee on Human
Rights (PJCHR) reported that it had no comment on the Bill.[17]
Outstanding government response to
committee recommendations
At the time of writing this Bills Digest, the Government
had not responded to the recommendations of the Scrutiny of Bills Committee or
the Legal and Constitutional Affairs Committee recommendations for the
amendment of the Bill or its Explanatory Memorandum, or to take other
administrative action.
Policy
position of non-government parties/independents
At the time of writing this Bills Digest, non-government
parties and independent members of the Parliament do not appear to have
commented publicly on the Bill, other than as members of the committees noted
above.
Position of
major interest groups
There has been limited public comment on the Bill by major
interest groups. The submissions to the Senate Legal and Constitutional Affairs
Committee inquiry into the provisions of the Bill have focused largely on the
policy merits of the family law measures in Schedule 6 to the Bill,
including amendments relating to international parental child abduction and the
supervision of parties’ compliance with parenting orders. Some submissions also
raised a number of technical issues in the drafting of various provisions of
other schedules.
The Senate Legal and Constitutional Affairs Committee
endorsed a number of stakeholder comments, including suggestion for amendments
and administrative action to support parliamentary scrutiny of the Bill and the
implementation of its measures if the Bill is passed. Some key issues raised in
stakeholders’ submissions are summarised below and are discussed further in the
substantive commentary on relevant schedules.
Law Council
of Australia
The submission of the Law Council of Australia (Law
Council) commented substantively on the proposed amendments to the Family
Court’s bankruptcy jurisdiction (Schedule 3), financial agreements under
the Family Law Act (Schedule 6) and the proposed amendments
to the International Arbitration Act (Schedule 7). The Law
Council also supported the proposed repeal of section 43 of the Sex
Discrimination Act (Schedule 10).
In particular, the Law Council:
- commented
that the proposed amendments to the Family Court's bankruptcy jurisdiction (items
1 and 2, Schedule 3) may not have the intended legal effect following a
recent decision of the Family Court on the interpretation of the court’s
bankruptcy jurisdiction, and recommended further amendments to remove certain
jurisdictional limitations arising from that decision[18]
- recommended
some technical amendments to the measures proposing to align financial
agreement provisions of the Family Law Act for married and de facto
couples (item 17, Schedule 6)[19]
- raised
a potential constitutional risk in relation to the proposed amendments to the International
Arbitration Act to provide that the Federal Court and the State and
Territory Supreme Courts are ‘competent courts’ for the purpose of the domestic
enforcement of foreign arbitral awards, pursuant to the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (item 7, Schedule
7)[20]
- recommended
that, further to the proposed amendments to the International Arbitration
Act in Schedule 7, Australia become a party to the Convention on
Transparency in Treaty-based Investor-State Arbitration[21]
and
- recommended
some technical amendments to the proposed amendments to section 27 of the International Arbitration
Act regarding costs awards to prevent unintended consequences (items 13–16,
Schedule 7).[22]
Chief
Justice of the Family Court of Australia
The submission of the Chief Justice of the Family Court of
Australia, the Hon Diana Bryant, commented on the proposed amendments to section
65L of the Family Law Act (items 19 and 20, Schedule 6). These
measures propose to limit the power of the court to make orders requiring a
family consultant to supervise or assist with parties’ compliance with a
parenting order to cases involving ‘exceptional circumstances’.
The Chief Justice stated that ‘although those amendments
were previously agreed to by me, subsequent circumstances have led me to
reconsider my position’.[23]
Her Honour identified ‘the lack of appropriate resourcing to the family courts
over the past two years’ as the basis for her position that ‘it is no longer
appropriate to support the proposed amendment’.[24]
The Chief Justice indicated that she was considering ways
to reduce the number of parenting order contravention applications being heard
by judges, including a possible ‘triage system’ in which matters are ‘resolved
by a team comprised of a family consultant acting under section 65L (as it
currently stands) and a registrar exercising delegated powers’. Her Honour
indicated that she was also seeking funding for the appointment of more family
consultants and registrars.[25]
The Senate Legal and Constitutional Affairs Committee
acknowledged these comments in its report on the Bill but considered that they
were ‘matters of government policy and funding’ that were outside the scope of
its inquiry into the provisions of the Bill.[26]
The Committee also commented that ‘the Chief Justice’s proposal for a new
triage system should be given appropriate consideration by the government’.[27]
It remains to be seen whether the family law funding
measures announced in the 2017–18 Budget have had an impact on the Chief
Justice’s position in relation to the proposed amendments; or conversely
whether her Honour’s views have had an impact on the Government’s policy
position in relation to the proposed amendments. (Relevantly, the measures
announced in the Budget include the allocation of an additional $10.7 million
over four years for the engagement of family consultants, with $2.7 million in
ongoing annual funding.)[28]
Australian
Human Rights Commission
The submission of the Australian Human Rights Commission
(AHRC) commented on the proposed amendments to the Family Law Act, Marriage
Act and Sex Discrimination Act in Schedules 6, 9 and 10. The
AHRC recommended that further consideration be given to the proposed amendments
to the Family Law Act in Schedule 6—specifically, the potential
inclusion of offence-specific defences as recommended by the Family Law Council
in 2011, and possible additional safeguards applying to the powers of arrest
under new section 122A.[29]
The AHRC also supported the passage of the marriage and sex discrimination measures
in Schedules 9 and 10.
Financial
implications
The Explanatory Memorandum states that there is no
financial impact associated with the Bill.[30]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[31]
Key issues
and provisions
Schedule 1—amendments
to the Acts Interpretation Act 1901
Item
3—new section 19E
The key proposed amendment in Schedule 1 is contained in item
3, which proposes to insert new section 19E in the Acts
Interpretation Act, to preserve the validity of acts done by Ministers in
certain circumstances.
The new provision will apply when a Minister purports
to exercise a power or perform a function or duty that is conferred or imposed
on another Minister by an Act. In these circumstances, the first-mentioned
Minister’s action is not invalid merely because the relevant power, function or
duty was conferred or imposed on the other Minister. (Items 1 and 2 are
consequential amendments to item 3, amending the simplified outline of
the Acts Interpretation Act in section 1A, and inserting a
cross-reference to new section 19E.)
Reinstatement
of repealed provision—former section 19BD
The Explanatory Memorandum states that new section 19E
would replicate former section 19BD, which was repealed by the Acts and
Instruments (Framework Reform) Act 2015 (2015 Act).[32]
Intended
meaning and application of new section 19E
New section 19E is designed to deal with
circumstances in which a Minister undertakes an action under the mistaken
belief that he or she has portfolio responsibility for the relevant action, but
in fact the Administrative Arrangements
Order (AAO) vested responsibility in another Minister. This might arise, for example,
in the event that the AAO was amended to transfer portfolio responsibility from
the first-mentioned minister to another Minister.[33]
The Explanatory Memorandum further states that the
proposed provision ‘does not validate the acts of a Minister purporting to
exercise power which is conferred on another Minister in all circumstances’.[34]
The Explanatory Memorandum also indicates that the provision is not
intended to amount to a positive conferral of power on a Minister ‘to perform functions
or duties or exercise powers that do not fall within that Minister’s
responsibility’.[35]
Rather, the proposed provision is in the nature of a ‘safety net’ that prevents
a finding of invalidity solely or necessarily as a result of the absence
of power.
This intent appears to be given effect by the inclusion of
the phrase ‘is not invalid merely because’ in the proposed provision,
which indicates that a court may have regard to the particular authorising
provision and the circumstances surrounding a purported action by a Minister, in
order to determine whether a finding of invalidity should follow from an
absence of statutory authorisation in a particular case.[36]
Further, like all rules of statutory interpretation in the Acts Interpretation
Act, the application of new section 19E could be displaced by the
expression of a contrary intention in a provision conferring a power, function
or duty upon a Minister.[37]
New section 19E applies expressly to Ministerial powers,
functions or duties conferred by an Act. However, it would also apply to the
interpretation of powers, functions or duties conferred upon a Minister by a legislative
or notifiable instrument by reason of section 13(1) of the Legislation Act
2003, and by a non-legislative or non-notifiable instrument made under
an enactment by reason of subsection 46(1) of the Acts Interpretation Act.[38]
Rationale
for reinstating former section 19BD in new section 19E
The Explanatory Memorandum suggests that the former
section 19BD was repealed by the 2015 Act ‘because of a drafting error’ in the
2015 Act.[39]
It also states that the former section 19BD was repealed by the 2015 Act ‘because
its policy outcome and operation were mistakenly considered at the time to be
adequately covered by section 19D [enacted by the 2015 Act] which deals with
the Minister’s powers along with those of other authorities, but only in the
context of machinery of government changes’.[40]
Existing subsection 19D(1) preserves the validity of
a purported exercise or performance of a power, function or duty by an
‘authority’ (which is defined in subsection 19C(6) to include a Minister
as well as departments, agencies and offices) where the relevant power,
function or duty is, in fact:
- conferred
or imposed upon another authority
- conferred
or imposed upon the same authority under a different name or title or
- no
longer conferred or imposed upon any authority.
Subsection 19D(1) provides that a purported exercise
or performance of a power, function or duty will not be invalid merely because of
the above reasons. However, subsection 19D(2) provides that the savings
provision[41]
in subsection 19(1) ‘only applies if the authority acted on the basis
of a reasonable, but mistaken, belief about the occurrence, timing or nature of
the machinery of government change’.
Comment
New section 19E is intended to fill an identified
gap in the existing coverage of the savings provisions in section 19D of the
Acts Interpretation Act. The gap arises in circumstances other than
those in which the relevant Minister has a reasonable but mistaken belief about
the occurrence, timing or nature of a machinery of government change. It
appears reasonable to extend the application of the savings provisions, so that
purported Ministerial action is not necessarily or automatically invalidated due
to a failure to comply with internal government administrative arrangements in
any circumstances. As with former section 19BD, new section 19E will not
remove judicial discretion to determine that a particular Ministerial action is
invalid, upon the construction of an individual authorising provision or an
examination of the factual circumstances in which the purported Ministerial action
was undertaken.
However, the accuracy of the description in the
Explanatory Memorandum of the amending provisions of the 2015 Act as ‘a drafting
error’ is debatable. There was evidently a deliberate policy intention to
repeal former section 19BD in 2015. This may have been based on a
misinterpretation of its scope of application, such that there was a mistaken
belief that it was covered entirely by the new section 19D. Alternatively, the
repeal of former section 19BD may have reflected a policy position that the
coverage of section 19D was, at that time, considered to be adequate and any
additional coverage provided by former section 19BD was unnecessary.
The Explanatory Memorandum to the originating Bill to
the 2015 Act, the Acts
and Instruments (Framework Reform) Bill 2014, appears to be ambiguous in
this respect.[42]
Nonetheless, neither of the potential scenarios outlined above appear to
identify any technical errors in the drafting of the 2015 Act. Rather, they
tend to suggest the existence of an interpretive error (or the adoption of an
intentional policy position) in the drafting instructions issued by the
administering department with the authority of the Government.
Schedule 2—amendments
to the Archives Act 1983
Schedule 2 proposes to make various amendments to
the Archives Act, which are directed to two main purposes. First, the measures
in Part 1 (items 1–14) propose to amend the provisions of
Division 3 of Part V governing the public right of access to Commonwealth
records in the open access period,[43]
in order to establish new arrangements for managing high-volume applications
for public access to records. In particular, the proposed amendments would
permit the extension of the statutory timeframe within which the NAA must
respond to requests.[44]
Secondly, the measures in Part 2 (items 15–19)
propose to amend various provisions of the Archives Act to remove
ambiguities in some provisions relating to the NAA Advisory Council (item 16)
and to repeal outdated provisions that do not reflect the NAA’s current
services or use of technology (items 15, 17–19).
As detailed below, these measures appear to be, on
balance, a reasonable means of modernising the NAA’s governing legislation so
that the agency can operate effectively in contemporary circumstances.
Part 1—access to records (items 1–14)
The key amendments are contained in item 11.[45]
They propose to insert new sections 40A and 40B in Division 3 of Part V
of the Archives Act dealing with access to Commonwealth records within
the open access period.[46]
The new provisions will enable the Director-General to extend the
statutory timeframe in which the NAA must respond to an application for access
to Commonwealth records in the open access period under section 40 of the Archives
Act, and to deal with applications made by persons who are acting in
concert. The Explanatory Memorandum states that the primary purpose of these
new provisions is to ‘introduce two new mechanisms that will provide the
Archives with some tools to appropriately manage high volume applicants
requesting access to records, and facilitate more efficient and equitable
access to records for all applicants’.[47]
In particular, the Explanatory Memorandum details the current demands on the
NAA’s resources and the objectives of the proposed amendments in the following
way:
The resources of the Archives are heavily impacted by high
volume requests made by a small number of people. As at January 2017, the
top ten applicants had 12,572 active applications with the Archives. These
applications have been submitted over the course of a number of years. In some
cases, the same individuals are submitting very large numbers of requests year
after year.
These measures are intended as a means to provide more
realistic timeframes for the Archives to process applications for access to
records and to encourage applicants to prioritise and narrow their requests.
The Archives would continue to process the same volume of applications, but
these amendments are intended to enable the Archives to process requests from a
broader range of applicants to enable more equitable access to the Archives’
collection (rather than a small number of high volume applicants consuming
resources) ... By mitigating the demands on the Archives’ resources from high
volume applicants, it is hoped that the Archives will have greater capacity to
identify and proactively disclose records which appear to have a greater public
interest.[48]
Existing
arrangements for access to records under the Archives Act
Division 3 of Part VI of the Archives
Act confers rights of
access to Commonwealth records within the public access period (other than in
relation to exempt records).[49] Section 31 provides that the NAA must cause such records to be made
available for public access. Section 40 makes provision for the making of
written applications to the NAA seeking access to record referred to in section
31. It requires the NAA to accept and process applications for all such
records.
Subsection 40(3) provides that where an
application is made, the NAA must take all reasonable steps to enable the
applicant to be notified of a decision on the application ‘as soon as
practicable but in any case not later than 90 days after the day on which the
application is received by the Archives’. Subsection
40(8) contains a deemed refusal provision in the event that the NAA does not
process an application within 90 days of receipt. Deemed refusal enlivens the
applicant’s right to seek merits review of the decision in the Administrative
Appeals Tribunal (AAT) under Division 4 of Part V.
There is no provision for further time to process the
request unless ordered by the AAT under subsection 40(12) following an
application made under section 43 for the review of a deemed refusal due to
subsection 40(8). Nor does Division 3 of Part VI allow the NAA to refuse
to process a request, irrespective of its volume. The Explanatory
Memorandum notes that voluminous requests are becoming easier to make in
relation to records online.[50]
New section 40A—consideration period for applications for
access to records
Item 11 proposes to insert new section 40A,
providing the Director-General with a discretionary power to extend an
application’s initial period of 90 business days from the receipt of an access
application under section 40 (or a shorter period as prescribed by
regulations).
New section 40A provides for two circumstances in which
the Director-General may extend the initial period:
- by
written agreement with the applicant in accordance with new subsections 40A(2)
and 40(3),[51]
and
- unilaterally
by the Director-General, if he or she reasonably believes that the applicant
has made more than one application, and the number of items that describe the
records sought exceed either 25, or a larger number prescribed by regulations,
in accordance with new subsection 40A(4).[52]
There is a limit on the period of a particular extension
granted under new subsection 40A(4), which is calculated according to a
formula prescribed in new subsection 40A(6).[53]
In determining whether to grant an extension under new subsection 40A(4),
or exercising a power of variation, the Director-General is required to take
into account matters prescribed by the regulations.[54]
New subsections 40A(7) and 40A(8) confer upon the Director-General
powers to vary or revoke extensions granted under new subsection 40A, which are
additional to the general power conferred by subsection 33(3) of the Acts
Interpretation Act.[55]
New Section 40B—applications for access to records made by
persons acting in concert
Item 11 further proposes to insert new section
40B. It provides that the Director-General may determine in writing that an
access request made under section 40 made by a person (the first person) is taken
to have been made by another person. This is provided that the Director-General
reasonably suspects that the first person is acting, or is intended or expected
to act, in accordance with the directions, instructions or wishes of, or in
concert with, the other person in relation to the making of such applications.
The Explanatory Memorandum states that the new
determination power is intended to ‘prevent persons from circumventing the
application of the extension power in new subsection 40A(4) by arranging for
one or more other persons to submit applications for access to records on the
person’s behalf’.[56]
It notes that such arrangements could include family members; employees,
consultants or agents; or groups of researchers acting on behalf of others.[57]
The Explanatory Memorandum also provides details about
attendant review rights. It states that determinations made under new
subsection 40B(1) are not subject to merits review, although judicial review is
available.
This reflects the intention that these determinations are
considered to be preliminary decisions made in support of the operation of
subsection 40A(4). In addition, the Explanatory Memorandum notes that any
review rights in relation to the substantive access application will vest in
the other person who is determined to be the applicant under subsection 40B(1)
and not the first-mentioned person who was identified as the applicant in the
application.[58]
Comment—new
access arrangements and modernisation measures
Part 1—new access arrangements
The proposed new access arrangements in Part 1 of
Schedule 2 seek to balance potentially competing interests in facilitating
the accessibility of records, and in managing the resource impost on the NAA
associated with processing high-volume requests, including the diversion of the
agency’s resources from proactively identifying and publishing records.
It is suggested that, on balance, the proposed
arrangements appear to strike an equitable and workable balance. The amendments place clear statutory limitations on the scope of the
powers to extend the consideration period for applications, and to treat
applicants as acting in concert. Decisions about the exercise of these powers
are capable of judicial review under section 75(v) of the Constitution or section 39B of the Judiciary
Act 1903, and the ultimate decision on access
is subject to merits and judicial review.
Part 2—modernisation measures
The proposed modernisation amendments in Part
2 of Schedule 2 appear to be reasonable measures to reflect the
contemporary practices of the NAA in utilising digital technologies in indexing
and providing information to the public about its collections, noting that the Archives
Act was drafted at a time when paper-based methods were used.
Broader policy context of proposed
reforms—Australia’s involvement in the Open Government Partnership
One matter that may warrant further
consideration in the context of scrutinising the Bill, and on an ongoing basis
in the future, is the broader policy context of the proposed amendments. As
part of Australia’s involvement in the Open Government Partnership,[59] the Government has developed Australia’s First Open Government National Action Plan 2016–18, setting out a package of 15 commitments to advance
transparency, accountability, public participation and technological
innovation.[60]
The action plan includes three measures to
implement a national commitment to improve public access to government
information. One such measure is to ensure that information management and
access laws are modern and appropriate for the digital information age. The
action plan identifies the objective of this measure as developing ‘a simpler
and more coherent legislative framework for managing and accessing government
information within the context of digital government, supported by efficient
and effective policies and practices’.[61] It states:
As part of this, we will consider and
consult on options to develop a simpler and more coherent framework for
managing and accessing government information that better reflects the digital
era, including the Freedom of Information Act 1982 (FOI Act), the Archives
Act 1983 (Archives Act) and, where relevant, the Privacy Act 1988 (with
primary focus on the Archives Act and FOI Act), which is supported by efficient
and effective policies and practices.
...
The core frameworks of Australia’s
information access laws (in particular the FOI Act and the Archives
Act) have not been substantially altered since enacted in the early 1980s,
when government operated in a paper-based environment. It is therefore
appropriate to consider how access to government information is best managed
into the future within the context of digital government.
The implementation of Australia’s
information access laws is overseen by the National Archives of Australia and
the independent Office of the Australian Information Commissioner (OAIC). The
Government is committed to ensuring the adequate resourcing of the OAIC to
discharge its statutory functions, and provided funding for this purpose over
the next four years in the 2016-17 Budget.[62]
The action plan sets out various
milestones (coordinated by the Attorney-General’s Department) between January
2017 and the intended completion date of July 2019. This includes the
development of reform options in March–June 2017, public consultations in July
and August 2017, a government decision in September–December 2017, and implementation
from 2018 to July 2019.[63]
The extrinsic materials to the Bill do
not identify any linkages between the proposed amendments in Schedule 2 and the
action plan, although in the abstract they appear relevant to implementing Australia’s
commitments outlined above. It is unclear whether the proposed amendments may form
part of a broader package of intended reforms to the Archives Act as part of the Open Government initiative
and, if so, the nature of any future reforms and progress towards developing
them.
Part 2—other amendments relating to modernisation and
clarification (items 15–19)
Items 15 and 17–19 propose to repeal certain
provisions of the Archives Act referring to indices, registers or guides
prepared and maintained by the NAA in accordance with Part VIII of the Archives
Act. The main amendments are in item 19, which proposes to repeal
Part VIII. This Part currently requires the establishment and maintenance of
three separate registers or guides to records and archival materials—the Australian
National Register of Records (section 65), the Australian National Guide
to Archival Material (section 66) and the Australian National Register
of Research Involving Archives. Items 15, 17 and 18 contain
consequential amendments to item 19.
The Explanatory Memorandum states that Part VIII is no
longer needed because it does not reflect the contemporary practices of the NAA
as a result of technological advances since the enactment of the Part:
Part VIII was drafted on the basis of a paper-based archive
and envisages physical, hard-copy registers and guides. Accordingly it is
outdated and suitable for repeal. The Archives does not currently maintain any
of the registers or guides in the manner specified in Part VIII. The specific
form of a register or guide for records is more appropriately dealt with as a
matter of policy rather than prescribed in legislation. Under paragraph 6(1)(g)
of the Archives Act, the Archives has the power to publish indexes of,
and other guides to, archival material. This approach will be more efficient
and effective than continuing a prescriptive, legislative approach which may
quickly become outdated.
The Archives currently administers ‘RecordSearch’, which is
an online database to search Commonwealth records and other archival material
held by the Archives that have been described (including barcode, series
number, title, item details, controlling agency, and whether an item is open,
closed (exempt in full) or open with some exemptions applied). RecordSearch
therefore performs the essential functions required by sections 65 and 66 with
respect to Commonwealth records and other archival resources of the
Commonwealth. The Archives will continue to administer RecordSearch (or other
indexes or guides to Commonwealth records and archival material), which
facilitates public access to records under section 40 of the Archives Act.
At February 2017, RecordSearch can be accessed at: http://recordsearch.naa.gov.au/SearchNRetrieve/Interface/SessionTimeout.aspx.
The Archives also does not currently maintain an Australian
National Register of Research Involving Archives and is not resourced to do so
as required by section 67. Any future decisions to establish such a register
should be implemented as a matter of policy, supported by the existing
functions and powers of the Archives in sections 5 and 6 of the Archives Act.[64]
Item 16 proposes to amend subsection 17(4) of the Archives
Act, which sets out the quorum requirements for meetings of the NAA
Advisory Council.[65]
It provides that ‘at a meeting of the Council a majority of the members of the
Council constitute a quorum’. The Explanatory Memorandum states that there is
presently an ambiguity in this provision, as there are often vacancies in the
membership of the Council and it is not certain whether a quorum is the
majority of members appointed to the Council at the time of a meeting, rather
than a majority of all available positions on the Council.[66]
Item 16 proposes to amend subsection 17(4) to state expressly that the
former interpretation applies. The amendments will insert an express statement
that a quorum refers to a majority of the members who for the time being hold
office.
Schedule 3—amendments
to the Bankruptcy Act 1966
Items 1 and 2 propose to amend section 35 of the Bankruptcy
Act. This section confers bankruptcy jurisdiction on the Family Court where
the Trustee in Bankruptcy is a party to certain family law proceedings relating
to property settlement or spousal maintenance. (That is, the Trustee in
Bankruptcy may become a party to the relevant family law proceedings because a party
to the marriage or de facto relationship to which the proceedings relate is
bankrupt.)
Items 1 and 2 propose to insert new subparagraphs
35(1)(b)(iia) and 35(1A)(b)(iia) to expressly confer jurisdiction on the
Family Court where the Trustee in Bankruptcy is an applicant to an order under
section 90K or 90UM of the Family Law Act to set aside a financial
agreement of the parties to a marriage or a de facto relationship.
Policy intention
The proposed amendments appear to be premised on a view
that the Family Court is already invested with jurisdiction in this matter
under section 35 of the Bankruptcy Act because proceedings under sections
90K and 90UM of the Family Law Act are covered by the definition of the
term ‘property settlement proceedings’ in subsection 35(3) of the Bankruptcy
Act, as that term is defined by reference to its meaning in section 4 of the
Family Law Act.[67]
The Explanatory Memorandum states that the proposed amendment is intended ‘to
make it clear, on the face of the provisions [of the Bankruptcy Act], that
that proceedings under sections 90K and 90UM [of the Family Law Act] are
included in the Family Court’s bankruptcy jurisdiction’.[68]
This statement of intention appears to be consistent with
the general policy objective of the Bill to improve the clarity of the
legislation subject to amendment. The proposed amendments would enable readers
to ascertain the bankruptcy jurisdiction of the Family Court on the face of
section 35 of the Bankruptcy Act without the need to separately consult subsections
90K(3) and 90UM(6) of the Family Law Act (noting that the need to
consult these provisions may not be readily apparent from the definition of
‘property settlement proceedings’ as used in the Bankruptcy Act by
reference to the meaning of that term in the Family Law Act).
Possible unintended consequences
In its submission to the Senate Legal and Constitutional
Affairs Committee inquiry into the Bill, the Law Council commented that a
recent decision of the Full Court of the Family Court on the interpretation of
the court’s bankruptcy jurisdiction may limit the effectiveness of the proposed
amendments in achieving their desired objective, where a party to a marriage or
de facto relationship is a discharged bankrupt but his or her estate is
still vested in the Trustee in Bankruptcy.[69]
The Full Court held that the Family Court’s jurisdiction
was limited to proceedings involving a person who is an undischarged bankrupt.[70]
The Law Council submitted that the Family Law Act should be further
amended to define the term ‘bankrupt’ to cover undischarged bankruptcy and
discharged bankruptcy where the bankrupt person’s estate remains vested in the
Trustee in Bankruptcy. This would have the effect of reversing the
interpretation of the existing provisions identified by the Full Court.[71]
Although the Bill was introduced after the Full Court
handed down its decision, the extrinsic materials do not distinguish expressly between
the intended application of the Family Court’s bankruptcy jurisdiction in
relation to persons who are discharged bankrupts whose estates remain vested in
the Trustee in Bankruptcy, and its jurisdiction in relation to persons who are
undischarged bankrupts.[72]
It is therefore unclear whether the Government had formed a policy intention to
preserve the distinction drawn by the Full Court and the consequent
jurisdictional limitation in relation to discharged bankrupts; or whether this
issue may have been overlooked in development of the Bill.
The Senate Legal and Constitutional Affairs Committee
noted the advice of the Attorney-General’s Department that the Department was
considering the Law Council’s submissions.[73]
The outcome of that process of consideration did not appear to have been
announced publicly before the Committee tabled its report, which recommended
that the Government should amend the Bill to address the Law Council’s
concerns.[74]
At the time of writing this Bills Digest, the Government does not appear to
have announced a position on this issue.
Schedule 4—amendments
to the Domicile Act 1982
Item 1 proposes to amend the Domicile Act.
This Act abolishes certain historical rules relating to the domicile (permanent
residence) of a married woman by reference to that of her husband, and sets
down interpretive rules relevant to the determination of a person’s domicile.[75]
Item 1 proposes to repeal an application provision
in subsection 3(6) which states that the Act applies to the Australian Capital
Territory, the Jervis Bay Territory and the external Territories (if any) that
are declared by the regulations to be Territories to which the Act extends. Item
1 proposes to substitute a new subsection 3(6), which provides that
the external territories are Norfolk Island, the Jervis Bay Territory, the
Territory of Christmas Island, the Territory of Cocos (Keeling) Islands, and
any external territory prescribed by the regulations.
The Explanatory Memorandum notes that the proposed
amendment will not substantively change the application of the Domicile Act,
because regulation 3 of the Domicile Regulations
1982 currently declares that the above external territories are territories
to which the Domicile Act applies. The intention is to remove the need
to rely on the Domicile Regulations in order to interpret the application
provisions of the primary Act.[76]
The Explanatory Memorandum further notes that, as
regulation 3 is the only substantive provision of the Domicile Regulations, it
is intended that these regulations will be repealed if the Bill is passed. The
Explanatory Memorandum also notes that new paragraph 3(6)(f) will retain
a regulation-making power to declare other external territories as being
subject to the Domicile Act.[77]
Schedule 5—amendments
to the Evidence Act 1995
Schedule 5 proposes to amend section 160 of the Evidence
Act. Subsection 160(1) currently provides that it is presumed that a postal
article sent by prepaid post to a person at a specified address in Australia or
in an external Territory was received at that address on the fourth working day
after having been posted. A party can displace the presumption by adducing
evidence that the court considers sufficient to raise doubt about the
application of the presumption.
Item 1 proposes to extend the timeframe specified
in the presumptive rule in subsection 160(1) from the fourth working day after
the item is posted to the seventh working day after the item is posted. Item
2 provides that the amendment to subsection 160(1) will apply
prospectively from the date of commencement, being the day after Royal Assent.[78]
The Explanatory Memorandum indicates that the proposed
amendments are designed to align the timeframe in the presumptive rule with
Australia Post’s current service timeframes. It states that the proposed reference
to seven working days reflects the maximum time a letter would take to be
delivered on the ‘regular service tier’.[79]
The statement in the Explanatory Memorandum is
corroborated by the Australian
Postal Corporation (Performance Standards) Regulations 1998, which provide
that the maximum delivery timeframe for a letter sent using Australia Post’s
regular delivery service is seven business days after the letter is posted.[80]
As such, the proposed amendment appears to reflect the current commercial and
operational circumstances attending the delivery of postal service articles.
One remaining question, however, is whether those States
and Territories that have enacted the uniform evidence law will make corresponding
amendments to their respective legislation, and whether the Commonwealth has
drawn this matter to their attention.[81]
This is material because proceedings in a State or Territory court will
generally be governed by the evidence laws of that State or Territory, even if
the court is exercising federal jurisdiction.[82]
Schedule 6—amendments
to the Family Law Act 1975
Schedule 6 (items 1–70) proposes to make a number
of amendments to the Family Law Act (FLA), in addition to
consequential amendments to a further nine Acts.[83]
Schedule 6 is divided into three parts, the key proposed
amendments of which are intended to:
- strengthen
Australia’s response to international parental child abduction
- clarify
a range of persons who may perform the powers of the Registry Managers in the
Family Court of Australia or any other court exercising family law jurisdiction
- improve
the consistency of financial and other provisions for de facto and married
couples
- assist
the operation of the family law courts and
- make
minor and technical amendments to various provisions of the FLA,
including clarifying definitions and removing redundant provisions, and making
consequential amendments to other Acts that cross-refer to provisions of the FLA
that are to be amended.[84]
Strengthening Australia’s response
to international parental child abduction
Various amendments to the FLA relating to
international parental child abduction are proposed. As stated above, measures
include:
- the
introduction of new offences for the wrongful retention of a child overseas, in
addition to the existing offences for the wrongful removal of a child from
Australia where parenting orders have been made or proceedings for such orders
are pending (Part 2, items 42–49, especially items 45 and 47)
- the
application of extended geographical jurisdiction to the new offences and
existing offences in the FLA for the wrongful removal of a child (Part
2, item 50)
- rules
for the making of arrests under the FLA (Part 1, item 35)
and
- extending
the provisions conferring standing upon persons to make application to the
Family Court for location orders (Part 2, item 55).
New offences for the wrongful
retention of children outside Australia (items 42-49)
Items 42–49 propose to insert two new offences (and
related procedural provisions and consequential amendments) in the FLA with
respect to the wrongful retention of a child outside Australia by a person
exercising parental responsibility in relation to the child. Both offences
would, if enacted, apply when that child has been lawfully taken or sent to an
overseas location (that is, the taking or sending was carried out with the
written consent of all persons exercising parental responsibility, or in
accordance with a court order) but the child is retained in breach of the
limits of the consent or authority under the court order.
The first proposed offence in new section 65YA (item
45) applies to the retention of a child overseas in contravention of a
final parenting order and without the written consent of the other person or
persons exercising parental responsibility for the child.
The second proposed offence in new section 65ZAA (item
47) applies to the retention of a child overseas where parenting order
proceedings are pending under the FLA, and the child is retained by a
party to those proceedings without the written consent of the other party or
parties to the pending proceedings, or an order of the court.
Background to the proposed
offences—criminal law responses to international parental child abduction
The new offences proposed in the Bill appear to implement,
in part, previous recommendations or advice of the Family Law Council to the
(then) Government in 2011 and 2012 about measures to strengthen Australia’s legal
response to international parental child abduction.[85]
The Family Law Council supported the enactment of discrete
“wrongful retention offences” under the FLA in addition to the existing
offences in sections 65Y and 65Z for the wrongful removal of children from
Australia, where parenting orders have been made or are pending. The Family Law
Council supported some additional or complementary measures, which include certain
offence-specific defences, and safeguards to prosecutorial decision-making such
as the authorisation of the Commonwealth Director of Public Prosecutions to
provide non-prosecution undertakings in appropriate cases, and a statutory
requirement to obtain the Attorney-General’s consent to any proposed
prosecutions.[86]
These matters are not addressed in the present Bill.
The new offences proposed in the Bill are also broadly
consistent with recommendations of the Senate Legal and Constitutional Affairs
References Committee in its 2011 inquiry into international child abduction to
and from Australia. That Committee recommended a range of additional or
complementary legislative and administrative measures that are not addressed in
the present Bill, and do not appear to have been implemented separately,
although they were accepted in full or in-principle by the (then) Government in
2012.[87]
If enacted, the new offences would mean that a criminal
law response to incidents of international parental child abduction is
available where a child is removed from Australia, or is retained overseas, in circumstances
in which there is a parenting order in force or proceedings for such an order
are pending. The proposed amendments would not extend criminal responsibility
to persons who remove or retain a child overseas in circumstances in which a
parenting order has not been sought or granted. (For example, if the child’s
parents are married or are in a de facto relationship and had not separated at
the time that one parent removed or retained the child without the consent of
the other parent.)
Accordingly, if the Bill is passed, it would remain the
case that there is no general criminal offence directed to international
parental child abduction. This position appears to be consistent with the views
of the Family Law Council and the Senate Legal and Constitutional Affairs
References Committee in 2011, both of which recommended against the enactment
of such an offence.[88]
However, the Senate Committee also recommended that the Government should maintain
a ‘watching brief’ over this matter and re-evaluate the possible need for a general
criminal offence as necessary in future.[89]
The (then) Government accepted this recommendation in 2012.[90]
The inclusion of the proposed wrongful retention offences
in the present Bill, to the exclusion of a general criminal offence for
international parental child abduction, may suggest that the Government remains
of the view that a general criminal offence is unnecessary at the present time.
Wrongful retention offence where a
parenting order is in force (items 44–45)
New section 65YA (item 45) would make it an
offence to retain a child in another country, where the child is under a
parenting order and has been removed from Australia.[91]
This measure was previously included in the lapsed Family
Law Amendment (Financial Agreements and Other Measures) Bill 2015.
Under new section 65YA, a person commits an offence
if:
- a
parenting order relating to taking or sending children from Australia is in
force and
- the
child has been taken or sent from Australia to a place outside Australia by or
on behalf of a party to the parenting order:
- with
the written consent of each person in whose favour the parenting order was made
or
- in
accordance with an order of a court made under Part VII of the FLA or
under a law of a State or Territory at the time, or after, the parenting order
was made and
- the
person retains the child outside Australia otherwise than with the consent or
order (whether or not the person took or sent the child from Australia to a
place outside Australia) and
- the
person was a party to the proceedings in which the parenting order was made or
is retaining the child on behalf or at the request of such a person.
The commission of an offence under new section 65YA
would be punishable by a maximum penalty of three years’ imprisonment (which is
consistent with the penalty applying to the corresponding wrongful removal
offence in section 65Y). Further, the ancillary offence provisions under
Chapter 2 of the Criminal
Code Act 1995 (Criminal Code), including attempt to commit a
crime, would apply to the new offence.[92]
New section 65YA is intended to complement existing
section 65Y of the FLA, which makes it an offence to remove a
child subject to a parenting order from Australia without the written consent
of each person in whose favour the parenting order was made or it is done in
accordance with a court order made under Part VII of the FLA or a
law of a State or Territory at the time, or after, the parenting order was
made.[93]
According to the Explanatory Memorandum, the new offence would:
... remedy an identified gap in the existing legislation, as
while under section 65Y it is currently an offence to remove a child in
relation to whom a parenting order is in force if there is no relevant court
order or consent in writing from other parties, a person does not currently
commit an offence if they retain a child [overseas] beyond expiry of an order
or consent.[94]
Item 44 makes a consequential amendment to existing
section 65Y (the offence provision for wrongful removal) to amend the heading
of that section to ensure it does not read as being the only section to which
obligations may apply where certain parenting orders have been made (in light
of the proposed introduction of further obligations and the attendant offence
provision under new section 65YA).[95]
Wrongful retention offence where
there are pending proceedings for a parenting order (items 46–47)
Item 47 introduces new section 65ZAA to
create the offence of retaining a child outside Australia pending the
outcome of proceedings under Part VII of the FLA (that is, proceedings
relating to children such as applications for parenting orders). This measure
seeks to complement the existing offence of unlawfully removing from
Australia a child to whom parenting proceedings relate, pending the resolution
of those proceedings.[96]
The offence provision is drafted in similar terms to new
section 65YA above, and its elements are:
- proceedings
for the making, in relation to a child, of a parenting order under Subdivision
6 applies are pending and
- the
child has been taken or sent from Australia to a place outside Australia by or
on behalf of a party to the proceedings:
- with
the consent in writing (authenticated as prescribed) of each party to the
proceedings or
- in
accordance with an order of a court made under Part VII of the Family Law
Act or under a law of a State or Territory after the institution of
proceedings and
- the
person retains the child outside Australia otherwise than with the consent or
order (whether or not the person took or sent the child from Australia to a
place outside Australia) and
- the
person is a party to the proceedings or is retaining the child on behalf or at
the request of such a person.[97]
The maximum penalty for this offence is three years’
imprisonment, which is consistent with the penalty applying to the
corresponding wrongful removal offence in section 65Z that applies where
proceedings are pending. The extensions of criminal liability under Chapter 2
of the Criminal
Code would apply in relation to offences against new section 65ZAA,
such as ancillary liability under section 11.1 of the Criminal Code for
attempting to commit the principal offence of wrongful retention.[98]
Item 46 makes a consequential amendment to item
47. It proposes to amend the heading to existing section 65Z (which imposes
an obligation on a party to pending proceedings for the making of a parenting
order not to take or send the child to a place overseas other than with written
consent of the other party or parties, or under a court order or a State or
Territory law and creates an offence for contravention). The proposed amendment
changes the section to the heading to make clear that section 65Z is not the
sole source of legal obligations in relation to the removal and retention of
children if proceedings for certain parenting orders are pending. This reflects
the introduction of the additional obligations arising from the wrongful
retention offence in new section 65ZAA when proceedings for a parenting
order are pending.[99]
Consequential amendments to the wrongful
retention offences (items 42, 43, 48, 49 and 51)
Items 42 and 43 make consequential amendments to
existing subsection 65X(2), which deals with the circumstances in which certain
appellate proceedings concerning parenting orders are taken to be ‘pending’. The consequential
amendments will include references to the wrongful retention offences that
would be inserted by items 45 and 47 outlined above, in addition to the
existing coverage of the existing wrongful removal offences and related penalty
provisions in the FLA.[100]
Items 48 and 49 would make consequential amendments
to existing section 65ZD of the FLA to include the new offences so as to
ensure that new sections 65YA and 65ZAA do not prevent or restrict the
operation of State or Territory laws in respect of retaining a child overseas.
Item 51 would amend existing paragraph 117A(1)(b)
of the FLA to include reference to new sections 65YA and 65ZAA
in order to allow a person to apply to the court for an order that another
person make reparations for certain losses and expenses relating to recovering
and returning a child in relation to those new offences.
Geographical jurisdiction—wrongful
removal and retention offences (item 50)
Item 50 would insert new section 65ZE into
the FLA. This new section would provide that section 15.4 of the Criminal
Code (extended geographical jurisdiction—category D) applies to an offence
against any of sections 65Y to 65ZB (taking, sending or retaining a child
outside Australia).[101]
Section 15.4 of the Criminal Code provides that if
a law of the Commonwealth states that category D extended geographical
jurisdiction applies to a particular offence, the offence can be prosecuted
whether or not the conduct constituting the alleged offence occurs in Australia
and whether or not the result of the conduct constituting the alleged offence
occurs in Australia.[102]
Category D is the broadest type of extended geographical jurisdiction available
under the Criminal Code as it does not require a nexus to Australia or
an Australian person.
The Explanatory Memorandum explains the rationale for the
application of Category D extended geographical jurisdiction by reference to
the international nature of the offences, the harmful effects of the offending
behaviour on the children involved, and the need for general deterrence. It
states, in relation to the wrongful retention offences:
The gravity of the effects of wrongful retention on a child’s
wellbeing, irrespective of who commits the offence or in which country the
child is retained, can be devastating and long-lasting. The new offences
contained in new sections 65Y and 65ZAA (inserted by items 45 and 47
respectively) are intended to be a deterrent to the wrongful retention of a
child and apply to any person (regardless of whether they have Australian
citizenship or residency) who wrongfully retains a child, irrespective of
whether there is an equivalent offence in the law of the local jurisdiction
where the child is being retained.[103]
While this justification is expressed as applying solely
to the proposed wrongful retention offences, it appears capable of applying
similarly to instances of wrongful removal, contrary to the existing offence
provisions. Further, the application of extended geographical jurisdiction in item 50
to both the existing wrongful removal offences and the proposed wrongful
retention offences appears to address a limitation identified in the course of
the Senate Legal and Constitutional Affairs Committee inquiry into a
corresponding provision of the Family Law
Amendment (Financial Agreements and Other Measures) Bill 2015.
In the 2015 Bill, extended geographical jurisdiction was
applied only to the new offences with respect to wrongful retention. In a
dissenting report, the Australian Labor Party members of the Committee
supported the application of extended geographical jurisdiction to both categories
of offences.[104]
The Explanatory Memorandum to the present Bill also states that the proposal to
apply category D extended geographical jurisdiction to the wrongful removal
offences, as well as the wrongful retention offences, is based on advice from
the Commonwealth Director of Public Prosecutions in the course of the
Committee’s inquiry into the 2015 Bill.[105]
Application of the international
parental child abduction-related measures (item 52)
Item 52 contains application provisions relating to
the proposed wrongful retention offences and related amendments outlined above.
There is some complexity in these provisions, which appears to reflect an
intention to take account of wrongful retentions that may occur prospectively (that
is, on or after the commencement of the proposed amendments) where the lawful
removal of the child from Australia occurred retrospectively (that is, prior
to the commencement date of the proposed amendments).
Subitem 52(1), paragraph (a) provides that the proposed
amendments would apply in relation to children who are taken or sent from
Australia without consent, or in contravention of a court order, on or after
the commencement of the amendments—that is, the earlier of a day to be fixed by
Proclamation or six months after the Act receives Royal Assent. In other words,
for the purpose of the new and amended offences, the conduct constituting the
element of the taking or sending of the child overseas is generally of
prospective, not retrospective, application.[106]
Subitem 52(1), paragraph (b) provides for a limited
degree of retrospective application of the proposed amendments. It provides, in
effect, that the proposed amendments will apply if the taking or sending of the
child overseas had occurred before the commencement of the proposed amendments,
and that taking or sending was done lawfully (that is, with consent or as
authorised under a court order). However, the wrongful retention of that child (being
retention for a period of time that exceeds the period specified in the consent
or court order) must have occurred on, or after, the commencement of the
proposed amendments. This appears to accommodate the application of the new
wrongful retention offences, so that the element of lawful taking or sending
can apply retrospectively, but the wrongful retention element is of prospective
application only.
Subitem 52(2) clarifies that the application
provisions in subitem 52(1) do not apply to the amendments proposed
under items 44, 46, 48 and 49 (relating to the obligations and attendant
offences under sections 65Y and 65Z if parenting orders have been made in
relation to the child, or if proceedings for parenting orders are pending; and
the savings provision for State and Territory laws in section 65ZD). These
amendments would apply immediately from the date of their commencement and
would not have any retrospective application to conduct occurring prior to that
date.
Possible offence-specific-defences to
the new wrongful retention and existing wrongful removal offences
The proposed wrongful retention offences in new
sections 65YA and 65ZAA do not contain any offence-specific defences. This
is consistent with the framing of the wrongful removal offences in existing
sections 65Y and 65Z. The existing and proposed offences are subject to the
defences and excuses of general application in Chapter 2 of the Criminal
Code (including, for example, duress, sudden and extraordinary emergency,
lawful authority, self-defence and mistake of fact).
The issue of possible offence-specific defences to the
proposed and existing offences was considered by the Senate Standing Committee
on Legal and Constitutional Affairs (the Committee) as part of its inquiry into
the Bill.[107]
As mentioned above, the Committee ultimately recommended in favour of two
offence-specific defences for the new wrongful retention offences and the
existing wrongful removal offences—namely:
- offence-specific
defences of ‘fleeing from family violence; to ensure that existing and proposed
offences of unlawful removal and retention of children abroad do not apply in
circumstances of family violence (recommendation 2) and
- offence-specific
defences of ‘consent’ to ensure that the existing and proposed offences of
unlawful removal and retention of children abroad do not apply in circumstances
where written consent has not been given, but where there is oral consent or
another form of non-written consent (recommendation 3).
The Committee’s recommendations in favour of including
certain offence-specific defences in the present Bill contrast with its
position during the 44th Parliament on equivalent measures in the lapsed Family
Law Amendment (Financial Agreements and Other Measures) Bill 2015.
In its report on the latter Bill in February 2016, the
Committee (as it was then constituted) declined to support an offence-specific
defence for persons fleeing from family violence on the grounds that the new
wrongful retention offences should provide a comprehensive and certain legal basis
upon which authorities could take action to recover children who were
wrongfully removed or retained, and should serve as a general deterrent to such
behaviour. The Committee commented that ‘complex situations where family
members are fleeing with children to escape violence or abuse should be dealt
with in Australia’.[108]
As outlined below, the Committee, as constituted in the
45th Parliament, now supports a different balance of the competing public
policy considerations that tend variously in favour of, and against,
offence-specific defences. At the time of writing this Bills Digest, the
Government had not released a response to the Committee’s recommendations for
the inclusion of offence-specific defences in the Bill.
Committee and stakeholder views on
offence-specific defences to the new and existing offences
The Senate Legal and Constitutional Affairs Committee noted
that the AHRC, in its submission to the inquiry into the present Bill, was
concerned to ensure that persons who remove or retain children overseas are not
exposed to criminal liability in certain circumstances, consistent with the
views of the Family Law Council in its advice to the (then) Government in 2011
and 2012. This included circumstances in which a child is taken or retained overseas
by a parent who is fleeing from family violence. It also included circumstances
in which there are practical difficulties associated with the child’s travel
back to Australia, which have resulted in the child being retained longer than
the agreed or permitted period (for example, airline strikes or other flight
delays, or the child’s ill-health).[109]
Accordingly, the AHRC sought to ensure that such
circumstances were covered comprehensively by either the defences of general
application in Chapter 2 of the Criminal Code, or by the inclusion of
offence-specific defences if there were any gaps in the coverage of the general
defences in relation to the existing wrongful removal offences or the proposed
wrongful retention offences in the FLA.[110]
The AHRC recommended that the Government should obtain
legal advice to provide an assurance about the coverage of the existing
defences of general application in the Criminal Code, and further
consider the enactment of offence-specific defences to the wrongful removal and
retention offences as necessary to address any gaps in coverage. In particular,
the AHRC emphasised the need to ensure that defences (whether existing or new)
were available and provided adequate coverage of the removal or retention of
children from Australia in circumstances of duress, sudden or extraordinary
emergency, self-defence, lawful authority, mistake of fact, fleeing family
violence, protecting the child from danger of imminent harm, reasonable excuse
and consent.[111]
In response, the Attorney-General’s Department (AGD)
submitted to the Committee that the first five circumstances noted by the AHRC[112]
were covered adequately by the defences in Chapter 2 of the Criminal Code,
which apply generally to Commonwealth offences. AGD submitted that the
duplication of these matters in offence-specific defences in the FLA would
be unnecessary and contrary to Commonwealth criminal law policy as set out in
the Commonwealth
Guide to Framing Offences, Infringement Notices and Enforcement Powers.[113]
AGD also commented that the remaining four circumstances identified
by the AHRC[114]
were variously capable of being recognised and addressed by the elements of the
wrongful removal and retention offences or the general defence of self-defence
in the Criminal Code; or that the enactment of offence-specific defences
would effectively constitute an inappropriate expansion of the concept of
self-defence in respect of the wrongful removal and retention offences in the FLA.[115]
The Senate Legal and Constitutional Affairs Committee
appeared to be satisfied by AGD’s advice in relation to all of these circumstances
other than the removal or retention of a child for the purpose of fleeing
family violence, or with the non-written consent of the other person or persons
exercising parental responsibility in relation to the child.[116]
These matters are discussed below.
Offence-specific defences for
persons who are fleeing from family violence
AGD noted that, when an offence-specific defence of
fleeing family violence was proposed by the Family Law Council in March 2011, the
statutory definition of family violence, then in subsection 4(1) of the FLA,
was narrower than its present form in subsection 4AB(1). (The definition as at
March 2011 focused on actual or threatened conduct that would cause a person or
a member of his or her family to fear for, or be reasonably apprehensive about,
his or her personal wellbeing or safety).[117]
AGD submitted that, under the previous definition of family violence as at
March 2011, a person who removed or retained a child for the purpose of
fleeing from family violence would have been able to rely upon the existing
defence of self-defence in section 10.4 of the Criminal Code.[118]
AGD noted, however, that the definition of ‘family
violence’ in the FLA was amended in 2012 to include a broader range of conduct
than physical violence against persons or property or threats to personal
safety—for example it may include ‘repeated derogatory taunts’ and various
forms of financial abuse.[119]
As such, AGD argued that any prescription of an offence-specific defence of
fleeing family violence in the FLA could, in effect, extend the scope of
the general defence of self-defence in the Criminal Code beyond its
current operation.[120]
AGD also submitted that such an extension would make the new offences
‘very difficult to prosecute’, although it did not advance a substantive explanation
in support of either proposition.[121]
In recommending the amendment of the Bill to include offence-specific
defences for persons fleeing family violence, the Senate Legal and
Constitutional Affairs Committee sought to place beyond doubt that the existing
and proposed offences would not criminalise the actions of persons who remove
or retain children as a defensive response to family violence. The Committee
appeared to support the adoption of the contemporary definition of family
violence in section 4AB of the FLA for the purpose of this
recommendation.[122]
In considering the Committee’s recommendation, and any
Government response that may be released in future, members of the Parliament
may wish to consider:
- whether
the more expansive, contemporary definition of family violence in section 4AB
of the FLA is conceptually appropriate as the basis for a stand-alone
criminal defence of fleeing family violence or
- whether
sole reliance on the general defence of self-defence in section 10.4 of the Criminal
Code is preferable, to the extent that it may be technically capable of
accommodating the situational and psychological circumstances of defendants who
are experiencing family violence.
There appear to be policy considerations tending in favour
of, and against, each option. As an aid to analysis, some potential advantages
and disadvantages of an offence-specific defence are outlined below.
Potential advantages of an offence-specific defence of fleeing from family
violence
On one hand, creating an offence-specific defence for
persons fleeing family violence could be beneficial in ensuring that victims of
family violence, who may act out of fear and desperation as a result of
coercion or control exerted against them, are not further disadvantaged through
exposure to criminal liability and sanction.
An offence-specific defence might also prevent or minimise
the risk of unintended consequences for children who are removed or retained in
cases involving family violence. The absence of an offence-specific defence may
raise a risk that a child who is unlawfully removed or retained by a parent who
is fleeing family violence is made subject to a guardianship or custody order
under state or territory child protection legislation upon his or her recovery
and return to Australia. This risk might arise if the “taking” or “retaining”
parent is convicted of a wrongful removal or retention offence under the FLA
and is sentenced to imprisonment; and it is determined that the other parent is
unable to care for the child.
Further, exposure to criminal liability might create an
additional disincentive for “taking” or “retaining” parents who are experiencing
family violence to cooperate with authorities seeking to return the child to
Australia, and make arrangements for the safety of the child and the parent upon
return. It might be questioned whether such outcomes are compatible with the
best interests of the children affected.
An offence-specific defence may also help to reduce the
risk that the general defence of self-defence in section 10.4 of the Criminal
Code may be misapplied or applied inconsistently in prosecutions for the
wrongful removal or retention offences in the FLA in matters involving
allegations of family violence. That is, although the general defence of
self-defence may be theoretically capable of recognising and accommodating
defensive responses to family violence, there is a practical risk that it may
not be applied, or applied consistently, in a manner that recognises the nature
and dynamics of family violence—particularly its characteristic patterns of
coercive and controlling behaviour, including non-physical violence, and its
impacts on victims. In this regard, it is worth noting that several Australian
law reform agencies have identified practical impediments to the application of
the general defence of self-defence in respect of defendants who are
experiencing family violence.[123]
For example, if a jury is directed to consider
self-defence, it must determine whether or not a defendant held a genuine
belief about a risk of harm arising from exposure to family violence, and
whether or not that defendant’s conduct in removing or retaining a child overseas
was a reasonable response to that risk in the circumstances as he or she
perceived them to be. It may be difficult to ensure that members of the jury
fully comprehend both the general dynamics or social framework of family
violence, and its specific impacts on the defendant’s perceptions, decision-making
capacity and ultimate actions. Any opportunity that a jury may have to take
into account evidence of these matters would, in turn, depend on the
understanding of the investigating police, prosecution and defence lawyers, and
the trial judge about the relevance of evidence of the situational and
psychological circumstances associated with family violence, so that any such
evidence is collected and can be adduced and admitted, and the jury directed as
appropriate.
This might require, for example, the collection, admission
and assessment of evidence about the cumulative psychological effects on the
defendant of multiple acts of physical and non-physical violence, and broader
patterns of coercion and control, including impacts on the defendant’s perception
of danger. It might also require the collection, admission and assessment of evidence
about the relevant characteristics and life circumstances of the defendant that
might have presented barriers to that person reporting or taking lawful steps
to protect themselves and the child from family violence. In particular, this
may entail the admission and consideration of evidence about a defendant’s social
support structures, financial means, literacy, and any relevant cultural
factors.
On this view, even if an offence-specific defence were to
essentially duplicate the elements of self-defence in section 10.4 of the Criminal
Code, there may be practical benefits in enacting a provision that
explicitly recognises the relevance of family violence to the elements of
self-defence in relation to the wrongful removal and retention offences in the FLA.
An offence-specific defence of this kind may help to ensure the accurate and
consistent application of the elements of self-defence in relation to the
wrongful removal and retention offences, if a defendant was experiencing, and
acted in response to, family violence. Members of the Parliament may wish to
consider whether these factors warrant departure from the general principle of
Commonwealth criminal law policy that the defences in Chapter 2 of the Criminal
Code should not be replicated in offence-specific defences.
Managing unintended consequences of an offence-specific
defence
If there are concerns that the effective duplication of
the general defence of self-defence could create unintended consequences for
the application and interpretation of section 10.4 of the Criminal Code,
consideration might be given to possible drafting devices to manage that risk.
This might include, for example, a provision containing an express statement of
Parliament’s intention that the new offence-specific defence does not exclude
or limit the application of section 10.4 to any offence.[124]
A possible alternative to an offence-specific
defence—statutory guidance about evidence relevant to self-defence
As an alternative to an offence-specific defence, an
offence-specific provision might be inserted in the FLA that provides
statutory guidance about the potential application of the general defence of
self-defence in section 10.4 of the Criminal Code to the wrongful
removal and retention offences in circumstances of family violence. Such a
provision might confirm that evidence of various family violence-related
factors may be relevant to the application of self-defence (or other offences
of general application) to the wrongful removal and retention offences.[125]
Potential disadvantages of an offence-specific defence
of fleeing from family violence
Conversely, it might be argued that an offence-specific
defence of fleeing from family violence may produce detrimental policy and
practical consequences; and that it would be preferable to leave consideration
of family violence solely to the general defences in Chapter 2 of the Criminal
Code (particularly self-defence).
From a policy perspective, there may be a risk that such an
offence-specific defence could, arguably inappropriately, exculpate persons who
remove or retain children as a response to allegations of family violence, in
circumstances that might fall short of the legal threshold for self-defence
under the Criminal Code. For example, depending on how an
offence-specific defence is framed, it might potentially be available to a
defendant who did not hold a genuine belief about the necessity of the removal
or retention of the child; or whose actions in removing or retaining the child
were not a reasonable response to the circumstances of family violence as he or
she perceived them. (However, given the focus of the definition of family
violence in section 4AB of the FLA on conduct that is coercive or
controlling, or instils fear, it is arguable that a family violence-specific
defence may effectively cover the same or substantially similar ground to that
of self-defence. If this proposition were accepted, the main legal policy based
argument against an offence-specific defence of fleeing from family violence
would seem to be the duplication of an existing defence of general application.)
Further, it might be argued that an offence-specific
defence of fleeing from family violence might create a practical impediment or
disincentive to the enforcement of the offences, which may arise from mere
allegations of family violence by a defendant or prospective defendant.
In particular, if a defendant sought to rely upon an
offence-specific defence of fleeing family violence, he or she would be
required to adduce or point to evidence suggesting a reasonable possibility
that he or she (or the child, or both the defendant and the child) was
experiencing family violence, and that the child was removed or retained
overseas in order to escape that violence.[126]
The prosecution would then be required to discharge its legal burden to negate
the existence of the defence beyond reasonable doubt.[127]
It may be that the testimony of the defendant is
sufficient to discharge his or her evidential burden in relation to the
defence. However, given the often private nature of family violence, it is
conceivable that there may be limited, if any, admissible evidence beyond the
testimony of the defendant and the other parent about the existence (or
otherwise) of family violence and any causal nexus (or otherwise) with the
defendant’s actions in removing or retaining the child.[128]
In this event, it may be difficult for the prosecution to
discharge its legal burden to negate the existence of a defence of fleeing
family violence in response to the defendant’s testimony. As the Commonwealth
Director of Public Prosecutions is required to consider the availability and
strength of potential defences before commencing or continuing a prosecution of
a Commonwealth offence,[129]
it is theoretically possible that mere allegations of family violence by a
prospective defendant might, at least in some cases, create an impediment to
enforcement due to evidentiary challenges in refuting such allegations to the
legal standard.
Offence-specific defences for the removal
or retention of a child with non-written consent
In its submission to the Senate Legal and Constitutional
Affairs Committee, the AHRC endorsed the views of the Family Law Council in its
March 2011 advice to the (then) Government in support of a defence for the
consensual removal or retention of a child.[130]
In response, AGD noted that the lack of consent by other
persons exercising parental responsibility already forms an element of the existing
and proposed offences, meaning that the prosecution must prove beyond
reasonable doubt that consent did not exist.[131]
If this view were accepted in full, there would be no utility in a discrete
consent-based defence.
However, the Committee observed that the elements of the
existing and proposed offences in the FLA apply expressly to a lack of written
consent to the child’s removal or retention. It noted that the offences could
still criminalise the removal or retention of a child in reliance on oral consent
or any other form of non-written consent (which could include a written record
made by one parent of an oral consent provided by the other, or potentially some
form of implied consent). The Committee recommended that the Government
amend the Bill to include offence-specific defences for the consensual taking,
sending or retention of children overseas, where the relevant consent was
provided orally or by means other than in writing.[132]
The Committee’s recommendation could minimise the risk
that the existing and proposed offences might create an arbitrary distinction
between culpable and non-culpable conduct based upon the mere form in which
consent was provided. No credible policy justification is apparent for potentially
exposing parents to criminal liability for acting in accordance with an oral
consent, and the extrinsic materials to the Bill do not identify any policy
intention to do so.
Should non-written consent be accommodated in the
elements of the offences, rather than as a defence?
It might be questioned whether it would be preferable to
implement the Committee’s policy objective to prevent the application of the
offences to persons who act in accordance with a non-written consent in a
different way. Namely, consideration could be given to amending the
consent-based elements of the new and existing offences, so that they apply
only to the removal or retention of a child in the absence of any form of
consent (whether written or otherwise). This could remove the potential for the
criminal law to attach arbitrary consequences to the form in which consent was
given.
It is possible that the Committee’s recommendation for the
enactment of an offence-specific defence for non-written consent may still lead
to the commencement of prosecutions (for example, a prospective defendant might
claim that the other parent had given non-written consent, but the truth of
this claim may be disputed by the prosecution). Although a defendant might
ultimately be acquitted on the basis of the offence-specific defence of
non-written consent, doubts might be expressed about the appropriateness of exposing
a person to criminal charge and prosecution in these circumstances, and potentially
expending public resources on such a prosecution. The core safeguard against the
aberrant use of the wrongful removal and retention offences in cases involving
the provision of non-written consent to the removal or retention of a child would
appear to be executive discretion about the exercise of power (namely,
prosecutorial and investigative decision-making) rather than a legislative
prohibition.
However, it is arguable that, for practical reasons
arising from the allocation of the evidential burden, an offence-specific
defence of oral consent could be preferable to amending the elements of the
offences. It may be considered appropriate to impose an evidential burden on a
defendant to adduce or point to evidence of non-written consent, since it is
conceivable that evidence of non-written consent might be more readily
accessible by the defendant (such as via his or her testimony recalling a
conversation with the other parent in which oral consent was given, or that of
another person who was present when oral consent was given, or a
contemporaneous diary note taken by the defendant of such a conversation). It
might be significantly more difficult and expensive for the prosecution to obtain
evidence negating the possibility that non-written consent was provided, unless
the defendant had first raised this issue by discharging an evidential burden.
Further, the inclusion of non-written consent as an
offence-specific defence, and retaining the lack of written consent as an
element of the offences, might provide a behavioural incentive for parents to
obtain the written consent of the other parent (or persons exercising parental
responsibility) or to obtain a court order authorising the taking or sending of
a child from Australia. This might be regarded as desirable in terms of
promoting certainty for, and minimising the potential for conflict between,
separated or separating parents about the legality of the removal of their
children from Australia or their retention overseas by one parent.
Rules for making arrests (items 1, 3, 21, 35 and 36)
The FLA contains powers of arrest for the alleged contravention
of certain terms of parenting orders or injunctions issued under that Act for
the purpose of the personal protection of parties to family law proceedings (or
related persons) and their property.[133]
Under existing section 122AA of the FLA, a person
who is authorised or directed by a provision of that Act, or by a warrant
issued under that Act, to arrest another person may use such reasonable force
as is necessary to make the arrest or to prevent the escape of that person
after the arrest. Section 122AA is supported by section 122A which outlines
powers of entry and search for the purposes of executing an arrest.[134]
Item 35 of the Bill would repeal existing sections
122AA and 122A of the Family Law Act and substitute them with new
sections 122AA and 122A. The Explanatory Memorandum states that the new
sections:
[W]ould provide a more modern framework for arrests, with
substantially improved safeguards. The powers reflect the arrest provisions in
the Crimes Act and the Federal Circuit Court of Australia Act 1999, as
well as the requirements of the Guide to Framing Commonwealth Offences,
Infringement Notices and Enforcement Powers in relation to powers to enter
and search premises for the purposes of arresting a person.[135]
Persons who may be authorised to exercise certain
powers in the course of making an arrest
New subsection 122A(1) is an application provision,
which identifies the persons who may exercise certain powers when making an
arrest (with respect to the use of force, and stop, entry and search powers) if
they are authorised by or under the FLA or court rules to exercise a
power of arrest. It explicitly lists a broad range of persons who could be
authorised under the Act, rules of court or warrant to arrest persons,
including the Marshal of the Family Court, the Deputy Marshal of the Family
Court, the Sheriff of the Federal Circuit Court, a Deputy Sheriff of the
Federal Circuit Court, the Sheriff of a court of a State or Territory, a Deputy
Sheriff of a court of a State or Territory, a police officer, the Australian
Border Force Commissioner or an APS employee in the Department administer by
the Minister administering the Australian Border
Force Act 2015 (presently the Minister for Immigration and Border
Protection).[136]
While the persons listed largely reflect existing
arrangements,[137]
the addition of the Australian Border Force Commissioner and an Australian
Public Service (APS) employee in the Department administered by the Minister administering
the Australian Border Force Act are explained as being necessary to
ensure that children are not abducted internationally given the urgency that
might arise in these circumstances.[138]
For example, evidence of a child’s imminent, unlawful
removal from Australia might be identified at short notice. An Australian
Border Force officer who is authorised to exercise powers of arrest under the FLA
might be physically present at, or nearby to, the airport or seaport from which
it is suspected the child will depart Australia. The authorisation of certain
APS employees in new paragraph 122A(1)(i) could enable that officer to
exercise reasonable force if it is necessary to arrest the person who is attempting
to remove the child.
Use of force, including lethal force, by persons who
are authorised to make arrests
According to the Explanatory Memorandum, new subsection
122A(2) would replace existing section 122AA and provide greater
restrictions around the use of force in arresting a person, reflecting
equivalent provisions under the Federal Circuit
Court of Australia Act 1999.[139]
Existing section 122AA provides that a person who is authorised or directed by
a provision of the FLA, or by warrant issued under the Act, to arrest a
person may use such reasonable force as is necessary to make the arrest or to
prevent the escape of that person after the arrest.[140]
New subsection 122AA seeks to introduce specific limitations to the
exercise of the use of force by requiring that in the course of arresting the
arrestee, the arrester must not:
- use
more force, or subject the arrestee to greater indignity than is necessary and
reasonable to make the arrest or prevent the arrestee’s escape thereafter (new
paragraph 122A(2)(a)) and
- do
anything that is likely to cause the death of, or grievous bodily harm to, the
arrestee unless the arrester reasonably believes that it is necessary to
protect the life or prevent serious injury to another person (including the
arrester) (new paragraph 122A(2)(b)).
New paragraph 122A(2)(c) provides an exception to
the prohibitions on the use of lethal force or force likely to cause grievous
bodily harm outlined in new paragraph 122A(2)(b) where the arrester
reasonably believes that doing that actions likely to cause death or grievous
bodily harm to the arrestee are necessary to protect life or prevent serious
injury to another person (including the arrester) and the arrestee has, if
practicable, been called on to surrender the arrester reasonably believes that
the arrestee cannot be arrest in any other way. These provisions are equivalent
to the use of force provisions in the Crimes Act that authorise police
to arrest a person for a Commonwealth offence.[141]
Duty to inform arrestee of grounds of arrest
New subsections 122A(3), 122A(4) and 122A(5) set
out the requirements for an arrester to inform the arrestee of the grounds for
their arrest. Such a requirement is not a feature of existing section 122AA and
reflects current requirements under the Federal Circuit
Court of Australia Act.[142]
These amendments are equivalent to provisions of the Crimes Act that
require police and others arresting a person for a Commonwealth offence to
inform the arrestee of the grounds of arrest.[143]
A consequential amendment to Note 1 in existing section
67Q[144]
of the FLA is made by item 21 as the result of new section
122A. This item would amend Note 1 to reflect that new section 122A
covers matters of reasonable force used by certain persons in situations of
arrest.
Powers of stop, entry and search for the purpose of
making arrests
Item 35 also introduces new section 122AA
which confers powers to enter and search premises (which are defined as
including ‘places’ and ‘conveyances’ such as vehicles, vessels and aircraft)[145]
in order to make an arrest, and to stop and detain conveyances for the purpose
of conducting a search for the arrestee or arresting that person. These powers are
presently contained in existing section 122A of the FLA.
The Explanatory Memorandum states that while the scope of
the power conferred by new section 122A is substantively the same as
under existing section 122A, the new section incorporates a greater number of
safeguards relevant to the use of the power.[146]
Existing section 122A provides for the power of entry and search for the
purposes of arresting persons where a person is authorised under the FLA
to arrest another person and the authorised person reasonably believes that the
other person is in or on a particular searchable place.[147]
In these circumstances, the authorised person may, without warrant, enter and
search the searchable place.[148]
New subsections 122AA(1) and 122AA(2) provide
greater detail as to the power to enter premises, namely:
- new
subsection 122AA(1) provides that if the arrester reasonably believes that
the arrestee is on premises, the arrester may enter the premises, using such
force as is necessary and reasonable in the circumstances, at any time of the
day or night for the purpose of searching the premises for the arrestee or
arresting the arrestee
- new
subsection 122AA(2) seeks to restrict the arrester from entering a dwelling
house[149] between 9pm on one day and 6am the next day
unless the arrester reasonably believes that it would not be practicable to
arrest the arrestee there or elsewhere at another time. The Explanatory
Memorandum states that this provision is an attempt to limit unnecessary or
unreasonable interference with privacy.[150]
It is not intended that such a prohibition would apply to cases where an arrest
is attempted by stopping and detaining a vehicle, vessel or aircraft under new
subsection 122AA(3).[151]
New subsection 122AA(3) seeks to replicate existing
subsection 122A and provides that if an arrester may enter and search a
conveyance under new subsection 122AA(1), the arrester may for the
purposes of effecting the entry and search, stop and detain a conveyance.
New subsection 122AA(4) seeks to introduce a number
of safeguards in relation to the stopping, detaining, entering and searching of
conveyances under new subsection 122AA(3). These safeguards are intended
to reflect those in section 3U of the Crimes Act, which apply to police
exercising powers to stop, detain and search a conveyance in relation to an
indictable offence under section 3T of that Act.[152]
New subsection 122AA(4) states that the arrester:
- may
use such assistance as is necessary (new paragraph 122AA(4)(a)) and
- must
search the conveyance in a public place or in some other place to which members
of the public have ready access (new paragraph 122AA(4)(b)) and
- must
not detain the conveyance for longer than is necessary and reasonable to search
it (new paragraph 122AA(4)(c)) and
- may
use such force as is necessary and reasonable in the circumstances, but must
not damage the conveyance by forcing open any part of it unless the person
apparently in charge of the conveyance has been given a reasonable opportunity
to open that part or it is not possible to give that person such an opportunity
(new subparagraphs 122AA(4)(d)(i) and (ii)).
Application of the measures under item 35 is covered by item
36 which states that new sections 122A and 122AA would apply in
relation to arrests authorised under the FLA on or after the
commencement of Part 1 of Schedule 6 to the Bill or authorised by warrants
issued on or after that commencement date. Hence, unlike aspects of the
proposed wrongful retention offences provided for in item 52, there
is no authority for the retrospective application of the amended arrest-related
powers.
Minor, consequential amendments resulting from the
introduction of measures in item 35 are contained in item 3 and
include the repeal from the general definitions provision in subsection 4(1) of
the FLA of the definition of the term ‘warrant issued under a provision
of this Act’. This term is made redundant by new sections 122AA and
122A. Further consequential amendments are contained in item 21,
which amends note 1 to section 67Q of the FLA (dealing with recovery
orders in relation to children) to update the reference to existing section
122AA with a reference to its replacement provisions in new section 122A.
Committee scrutiny of the proposed amendments to arrest
powers
Both the Senate Scrutiny of Bills Committee and the Senate
Legal and Constitutional Affairs Committee have addressed at length the
introduction of new sections 122AA and 122A. In its Scrutiny Digest of
29 March 2017, the Scrutiny of Bills Committee welcomed the introduction of
what it perceived to be additional safeguards to the operation of the coercive
powers under existing section 122A and 122AA of the FLA.[153]
However, the Committee noted with concern that while the
reference in new paragraph 122A(1)(i) to ‘an APS employee’ of the
Department of Immigration and Border Protection (DIBP) is intended to only
cover Australian Border Force officers, there is nothing in the legislation to
explicitly limit it in this way. For example, the provision might be capable of
authorising a policy officer in DIBP to exercise the arrest-related powers such
as use of force and stop, entry and search. (However, new subsection 122A(1)
indicates that the authorisation of a person who is specified in new
paragraphs 122A(1)(a)–(i) to make the arrest would need to be conferred separately
by another provision of the FLA, or pursuant to a warrant issued under
the FLA.)
The Scrutiny of Bills Committee stated:[154]
The committee has consistently drawn attention to legislation
that allows the delegation of administrative powers to a relatively large class
of persons, with little or no specificity as to their qualifications or
attributes. Generally, the committee prefers to see a limit set either on the
scope of the powers that might be delegated, or on the categories of people to
whom those powers would be delegated. In relation to the exercise of coercive
powers such as the power to arrest another person, use force, and enter and
search premises, the committee expects the person authorised to use such powers
should have received appropriate training. Where broad delegations are provided
for, the committee considers that an explanation of why these are considered
necessary should be included in the explanatory memorandum.[155]
The Committee further noted that nothing in the proposed
legislation requires an APS employee specified in new paragraph 122A(1)(i)
to have appropriate training in order to exercise the coercive powers to which
the section applies (including the use of lethal force) in an appropriate
manner.[156]
The Committee sought the Attorney-General’s advice about the appropriateness of
enabling any APS employee within DIBP to exercise coercive powers and whether
the Bill could be amended to require a certain level of relevant training to be
undertaken by those APS employees authorised to exercise these coercive powers.[157]
In response, the Attorney-General stated that the proposed
amendments did not represent a substantial change in policy, noting that APS
employees of DIBP are able to be authorised to exercise powers of arrest under
existing provisions of the FLA and other Commonwealth legislation. He
also stated that ‘the Government intends to discuss with the courts practical
measures (such as design of the court’s precedent warrant) that could assist in
limiting warrants so that they would only be addressed to [Australian Border
Force] officers rather than all DIBP staff’.[158]
The Attorney-General also stated that ‘specific training in relation to the
power and its limitations would be provided to those who are authorised to
exercise it. Powers of arrest are already covered in a number of [Australian
Border Force] operational training courses’.[159]
Ultimately, the Scrutiny of Bills Committee recommended that
new paragraph 122A(1)(i) should be amended to limit the power to use
force and the powers of stop, entry and search to Australian Border Force officers.[160]
The Legal and Constitutional Affairs Committee also recommended that the
Bill should be amended to ‘limit the arrest and use of force powers so that the
apply only to employees of the [Australian Border Force] that have received
appropriate training’.[161]
Comment—breadth of the classes of persons authorised to
use force, including lethal force, in making arrests
Given that new section 122A proposes to expressly
authorise the use of lethal force in the limited circumstances set out in new
paragraph 122A(2)(c), the scope of the classes of persons who are able to
be authorised to exercise such force may be a particularly important issue in
the Parliament’s consideration of the Bill.
Given the legally binding effect of a statutory limitation
on the classes of persons who are authorised to use force, including lethal
force, the Committees’ recommended amendment of new paragraph 122A(1)(i)
might reasonably be regarded as a stronger safeguard than a Ministerial
statement of intention about the prospective application of the proposed
amendments (namely, a suggestion that a more limited class of persons could be
appointed or authorised than is legally possible). Limiting the classes of
persons in the manner suggested by the Committees may help ensure that the
limitations on the use of force, particularly lethal force, in new
subsection 122A(2) are adhered to in the practical implementation of the
proposed amendments.
Further, a stated intention to exercise a power in a more
limited way than its statutory limits might reasonably cast doubt upon the
necessity of a proposal to confer a broader statutory scope of application. The
extrinsic materials to the Bill do not contain an explanation of the perceived
operational need for an APS employee at DIBP other than an Australian Border
Force officer to exercise the powers conferred by new subsection 122A(2)
and new section 122AA. These factors may also tend in favour
of limiting new paragraph 122A(1)(i) as recommended by the
Committees.
Standing to make an application for a location order (items 54 and 55)
Item 55 would amend existing provisions of section
67K of the FLA governing the standing of persons to apply for location
orders in relation to children.[162]
Currently, subsection 67K(1) confers standing on various
persons exercising parental responsibility or having contact with the child
under a parenting order, grandparents and other persons concerned with the
care, welfare or development of the child. Subsection 67K(2) also confers
standing on persons to make application for location orders for the purposes of
the Child
Protection Convention,[163]
including the Commonwealth central authority designated under section 11CA for
the purposes of implementing Australia's obligations under that convention.[164]
Broadly, the Child Protection Convention provides
for international cooperation between countries that are parties to recognise
protective measures for children. This includes the recognition and enforcement
of court orders or other protective measures made in one Convention country in
other Convention countries. Part VII of the FLA implements Australia’s
obligations under the Child Protection Convention.
The proposed amendments in item 55 are intended primarily
to address an anomaly in section 67K, which does not presently confer standing
on Australia’s central authorities under another relevant convention, the Convention on
the Civil Aspects of Child Abduction (Child Abduction Convention).[165]
Broadly, the Child Abduction Convention is a
multilateral treaty between a number of countries (97 contracting states
as at May 2017)[166]
that seeks to protect children from the harmful effects of abduction and
retention across international boundaries. The Child Abduction Convention
seeks to ensure that any child abducted from one Convention country to another
Convention country is promptly returned to the child’s country of residence
unless exceptional circumstances apply.
Item 55 will repeal a definitional provision in existing
subsection 67K(3) of the FLA, and insert new subsections 67K(3) and
67K(4) that will, in combination with existing subsection 65K(2), confer
standing on Australia’s central authorities under both the Child Protection Convention
and Child Abduction Convention to apply to the court for a location
order.
The Explanatory Memorandum states that the conferral of
standing on Central Authorities under the Child Abduction Convention
will ‘significantly improve their ability to locate children abducted from
Australia, both to convention and non-convention countries’.[167]
That is, the proposed provisions seek to improve administrative responses to
incidents of child abduction from Australia consistent with Australia’s obligations
under the Child Abduction Convention.
Specifically, new subsection 67K(3) would provide
that for the purposes of the Child Abduction Convention, a person
(including one appointed as the Central Authority for the Commonwealth, a State
or a Territory for the purposes of Article 6 of the Child Abduction
Convention)[168]
may apply to the court for a location order.
New subsection 67K(4) defines the term ‘Child
Abduction Convention’ for the purpose of new subsection 67K(3) as the
Convention on the Civil Aspects of International Child Abduction done at
The Hague on 25 October 1980. A note to that subsection would also be
added to provide the citation of the Australian Treaty Series entry for the Child
Abduction Convention that contains the text of the Convention, and directs
readers to the online Australian Treaties Library to access to the text of the
Convention in the Australian Treaty Series.[169]
Item 54 is a consequential amendment to the
measures outlined in item 55. It would omit the phrase in parenthesis in
existing subsection 67K(2) of the FLA (‘including the Commonwealth
central authority’) and would replace it with the parenthesised phrase
‘including one appointed as the Central Authority for the Commonwealth, a State
or a Territory for the purposes of Article 29 of the [Child Protection]
Convention’. The objective of this measure is to ensure consistency in
drafting with new subsection 67K(3) which refers not only to the Central
Authority of the Commonwealth, but that of a State or a Territory also.[170]
Clarification of persons who may perform the powers of Registry Managers in
the Family Court or other court (items 2, 22 and 23)
The current definition of ‘Registry Manager’ is outlined
in subsection 4(1) of the FLA. It provides:
- except
in Subdivision C of Division 8 of Part VII[171]
and sections 67Z[172]
and 67ZBA[173]
of the FLA:
- in
relation to the Family Court—a Registry Manager is the Registry Manager of a
Registry of the Court and
- in
relation to a court other than the Family Court—a Registry Manager is the
principal officer of the court or any other appropriate officer of the court
- in
Subdivision C of Division 8 of Part VII of the FLA:
- in
relation to the Family Court—the Registry manager is the Registry Manager of
the Registry of the Court
- in
relation to the Family Court of Western Australia—the Registry Manager is the
Principal Registrar, a Registrar or a Deputy Registrar of the court and
- in
relation to any other court, the principal officer of the court.
Item 2 seeks to repeal the existing definition of
‘Registry Manager’ in the FLA and substitute it with a new definition
which, according to the Explanatory Memorandum, would simplify the definition
such that a single definition would apply throughout the FLA and would
also provide for a broader range of persons to exercise the powers of Registry
Managers.[174]
Under the proposed amendments, ‘Registry Manager’ would be
defined in section 4(1) of the FLA as follows:
- for
the Family Court—the Registry Manager of a Registry of the Court or any other
appropriate officer or staff member of the Court and
- for
any other court—the principal officer of the court or any other appropriate
officer or staff member of the court.
As there is nothing in the proposed amendments which
specifies who the appropriate officer or staff members would be for the
purposes of the new definition, or the basis on which a person may be determined
to be appropriate, the courts will have broad discretion in relation to the
appointment of persons under these provisions.
Items 22 and 23 would make amendments consequential
to the revised definition of ‘Registry Manager’ by repealing the existing
definition of ‘Registry Manager’ in subsections 67Z(4) and 67ZBA(4) of the FLA
respectively, so that the meaning of this term is governed by the general
definition applicable to all provisions of the FLA in subsection 4(1) as
inserted by item 2.
Improving consistency of financial
and other provisions for de facto and married couples (items 17–18)
Items 17 and 18 collectively seek to resolve
inconsistencies in the application of existing provisions of the FLA
between de facto and married couples.
Key amendments to property and
maintenance proceedings in relation to de-facto relationships (item 17)
Item 17 proposes to repeal existing subsection
44(5) of the FLA and replace it with a new subsection 44(5) to
address two inconsistencies between de facto and married couples in relation to
instituting maintenance or property proceedings. The first is the result of
existing subsection 44(3) of the FLA which allows formally married
couples to institute proceedings before the court after the expiration of as 12
month limitation period with either leave of the court or with the consent of
both parties.[175]
There is no equivalent provision for de facto couples, requiring them instead
to seek leave of the court pursuant to subsection 44(6) (notwithstanding that
they may seek to institute proceedings by consent).
Existing subsection 44(3B) of the FLA allows
formerly married couples to institute maintenance or property proceedings
within 12 months of the day of divorce or degree of nullity took effect, or
within 12 months of the day on which a financial agreement between the parties
was set aside[176]
or found to be invalid.[177]
Again, there is no equivalent provision relating to de facto couples.[178]
The ability of de facto couples to institute proceedings
relating to property and maintenance is currently governed by subsection 44(5)
which provides that subject to subsection 44(6)[179]
a party to a de facto relationship may apply for an order for maintenance or
property or a declaration of a party’s interest in property only if the
application is made within the period of two years after the end of the de
facto relationship. The period of two years after the end of the de facto
relationship for the purposes of this section is known as the ‘standard
application period’.
New subsection 44(5) sets out two circumstances in
which a party to a de facto relationship may apply for a property or maintenance
order or a declaration of a party’s interest in property, unless the court
grants leave to make an application in other circumstances under existing subsection
44(6).
The first set of circumstances is the ‘standard
application period’ prescribed in new paragraph 44(5)(a).
The ‘standard application period’ is either two years of the end of the de
facto relationship (new subparagraph 44(5)(a)(i)); or 12 months after
the day a financial agreement between the parties was set aside or found to be
invalid (new subparagraph 44(5)(a)(ii).
The second set of circumstances is prescribed in new
paragraph 44(5)(1)(b) which applies if both parties to the de facto
relationship consent to the application. Further, new subsection 44(5A) would
provide that the court may dismiss proceedings where it is satisfied that,
because the consent was obtained by fraud, duress or unconscionable conduct,
allowing the proceedings to continue would amount to a miscarriage of justice. This reflects
existing subsection 44(3AA) which relates to proceedings commenced by consent
of formerly married couples.
Application provision (item 18)
Item 18 states that the proposed amendments to
section 44 outlined above apply in relation to applications made after the
commencement of the item, being the day after the Act receives Royal Assent.
In addition, item 18 provides for the retrospective
application of other proposed amendments to section 44 of the FLA made
by item 15 regarding the application period for maintenance proceedings
(discussed below).
Committee and stakeholder
scrutiny—technical drafting issues
In its submission to the Legal and Constitutional Affairs
Committee inquiry into the Bill, the Law Council raised a concern with the
drafting of new subparagraph 44(5)(a)(ii) insofar as it includes the
phrase ‘or found to be invalid’. While noting that this drafting mirrors
existing subparagraph 33(3B)(c)(ii) (pertaining to formerly married couples),
the Law Council noted:
A potential difficulty emerges in that a Court does not
relevantly determine whether a Financial Agreement is ‘invalid’ or not –
indeed, this is not the question ultimately relevant to whether jurisdiction
pursuant to Part VIII of the FLA [Family Law Act] exists or not. One can have a
valid agreement which is not binding upon the parties for the purposes of the
FLA. Thus, the question of whether there exists a valid agreement or otherwise,
is antecedent to the ultimate question to be answered.[180]
Noting that the question to be answered was whether there
exists a binding Financial Agreement upon the parties, the Law Council
submitted that the drafting of proposed subparagraph 44(5)(a)(ii) be
amended to read ‘... was set aside, or found not to be binding, as the case may
be ...’.[181]
AGD acknowledged this concern and stated in its submission to the Committee
that further consideration of whether such an amendment was needed.[182]
The Committee did not appear to have been provided with
information about the outcomes of any such consideration undertaken by AGD or
the Government prior to its reporting date. The Committee urged the Government
to consider whether the drafting of proposed subparagraph 44(5)(a)(ii)
should be improved although it did not make a formal recommendation for the amendment
of the Bill.[183]
Assisting the operation of the
family law courts (items 4–7, 15, 16, 19–20, 26–34, 37–41)
The Bill makes a number of amendments to the FLA
aimed at increasing the effectiveness and efficiency of the family law courts.
Expanded definitions of ‘family
counselling’ and ‘family dispute resolution’ (items 4 and 5)
Existing section 10B of the FLA defines ‘family
counselling’ as a process in which a family counsellor helps:
- one
or more persons to deal with personal and interpersonal issues in relation to
marriage
- one
or more persons (including children) who are affected, or likely to be
affected, by separation or divorce to deal with either or both of the
following:
- personal
and interpersonal issues
- issues
relating to the care of children.[184]
The Explanatory Memorandum states that the current
definition does not appropriately apply to all family arrangements including,
for example, parents who have not lived together or been married (thereby not
being affected by separation or divorce).[185]
Item 4 would seek to broaden the scope of
circumstances which may benefit from the assistance of family counselling by
inserting new paragraph 10B(c). This would insert the phrase ‘one or
more persons who may apply for a parenting order under section 65C to deal with
issues relating to the care of children’.
Section 65C of the FLA details the persons who may
be able to make an application for a parenting order for the purposes of the
Act, including either or both of a child’s parents, a child, a grandparent of a
child or any other person concerned with the care, welfare or development of a
child.
Thus, the effect of this amendment would be to expand the
definition of ‘family’ such that this service would be available to a broader
range of people than contemplated under the existing definition.
Similar to the amendment proposed by item 4, item 5
would repeal existing paragraph 10F(a), which defines ‘family dispute
resolution’ as a process in which a practitioner assists people affected, or
likely to be affected, by a separation or divorce and substitute it with the
broader range of persons outlined in section 65C of the FLA. This
measure will therefore expand the range of persons who may receive the benefit
of family dispute resolution services.
The amendments in items 4 and 5 were originally introduced
in the lapsed Family Law Amendment (Financial Agreements and Other Measures)
Bill 2015.
Admissibility of communications
with family consultations (items 6 and 7)
Existing section 11C of the FLA outlines rules of
admissibility of communications with family consultants or other professionals.
Subsection 11C(1) provides that evidence of anything said,
or any admission made, by or in the company of a family consultant performing
the functions of a family consultant or a person (a professional) to whom a
family consultant refers a person for medical or other professional
consultation, while the professional is carrying out professional services for
that person is admissible in proceedings under the FLA.[186]
Subsection 11C(2) states that subsection 11C(1) does not
apply to a thing said or an admission made by a person who, at the time of
saying or making the admission, had not been informed of the effect of
subsection 11C(1).[187]
Subsection 11C(3) provides that despite the exclusionary
provision in subsection 11C(2), a thing said or admission made is admissible
even if the person who said the thing or made the admission had not been
informed of the effect of subsection 11C(1) if it is:
- an
admission by an adult that indicates that a child under 18 has been abused or
is at risk of abuse[188]
or
- a
disclosure by a child under 18 that indicates that the child has been abused or
is at risk of abuse.[189]
However, this is subject to qualification if the court
forms the opinion that there is sufficient evidence of the admission or
disclosure available to the court.[190]
Item 6 proposes to repeal existing subsection
11C(3) and insert a new subsection 11C(3) that is intended to capture
broader circumstances in which a child may be at risk of, or may be being,
abused and that abuse has come to the attention of a family consultant.
The Explanatory Memorandum notes that the current
construction of subsection 11C(3) has the effect of extending only to a
disclosure by a child if that disclosure is about the child.[191]
This would mean that in circumstances where one child discloses that another
child is being abused or is at risk of abuse, that admission would not be
admissible for the purposes of proceedings under the Act.[192]
New paragraph 11C(3)(a) would combine existing
paragraphs 11C(3)(a) and (b) and would extend the provision to admissions made
by any person (including a child under 18) indicating that a child under 18 is
being abused or is at risk of abuse.[193]
New paragraph 11C(3)(b) would provide that a thing or admission obtained
improperly or on contravention of an Australian law would not be admissible by
operation of new paragraph 11C(3)(a) but would instead need to meet the rules of
admissibility contained in section 138 of the Evidence Act.[194]
The Explanatory Memorandum states that this measure is not
intended to alter the interpretation of existing subsection 11C(3), ‘but to
clarify that the subsection operates as outlined in Hazan v Elias (2011)
255 FLR 338’.[195]
Item 7 provides that the amendments outlined in item
6 apply in relation to an admissible thing said, or an admission made,
after the item commences, being the day after the Act receives Royal Assent
(whether the proceedings in question are instituted before or after that time).
Limitation periods for certain
maintenance proceedings (item 15)
Section 44 of the FLA sets out the requirements
(including limitation periods) for instituting proceedings under the Act.
Existing subsection 44(2) provides that, notwithstanding the limitation periods
applicable to instituting certain maintenance and property proceedings outlined
in subsections 44(3)[196]
and (3A)[197]
of the Act, a respondent to proceedings may, in answer to an application,
include an application for any decree or declaration under the Act.[198]
The Explanatory Memorandum states that this provision ‘provides an advantage to
the respondent, who is able to make an application for orders without leave of
the court’.[199]
Item 15 would repeal subsection 44(2) of the FLA,
thereby removing the ‘relative advantage’ provided to the respondent by
existing subsection 44(2) and requiring respondents to seek leave of the court
for any cross-application.
Item 18 (mentioned above in relation to the
alignment of property and financial provisions for de facto and married
couples) provides for the retrospective application of the proposed repeal of
subsection 44(2) in specified circumstances. Namely, item 15 would apply
in relation to any application made before the amendments commence, if the
respondent to the application had not filed a response before that time.
The respondent would therefore be required to seek the leave of the court
to file a cross-application as part of his or her response.
Appointment of family consultants
to supervise parties’ compliance with parenting orders (items 19 and 20)
Items 19 and 20 propose to amend section 65L
of the FLA to limit the jurisdiction of the family law courts, when
making final parenting orders, to make further orders appointing a family
consultant to supervise or assist the parties to comply with the terms of the
parenting order.
Currently, a court has a broad discretion under subsection 65L(1)
to make such orders for the appointment of family consultants as it considers
appropriate, provided that the court regards the best interests of the child as
the paramount consideration under subsection 65L(2).
Item 20 proposes to insert new subsection 65L(3)
that provides that the court may only make an order appointing a family
consultant under subsection 65L(1) relation to a final parenting order if it is
satisfied that exceptional circumstances warrant the making of the order to
appoint the family consultant.
Neither the Bill nor the Explanatory Memorandum provides
guidance on the types of matters that may amount to exceptional circumstances
for the purpose of item 20. Item 19 makes a consequential amendment to
subsection 65L(1) to insert a cross-reference to the new provision.
The Explanatory Memorandum states that it is considered
necessary to limit judicial discretion to appoint family consultants for the
purpose of supervising or assisting parties’ compliance with parenting orders
‘to ensure that the courts are not unduly burdened with an ongoing and onerous
obligation to supervise compliance with court orders’.[200]
It further notes that ‘compliance with parenting orders is managed through the
separate compliance regime in Part VII, Division 13A of the Act’.[201]
The measures in items 19 and 20 were previously
included in the lapsed Family Law Amendment (Financial Agreements and Other
Measures) Bill 2015. In a submission to the Senate Legal and Constitutional
Affairs Committee inquiry into the 2015 Bill, AGD provided further explanation,
stating that ‘it is highly unusual for courts to have any role in supervising
or assisting compliance with orders other than by considering contravention
applications. The courts are not resourced to undertake this function’.[202]
AGD also noted in its submission to the 2015 Bill that the
proposed amendments would only limit the court’s jurisdiction in relation to
final parenting orders and would not limit the ability of the court to order
supervision of interim orders. AGD considered that the position in relation to
interim orders was distinguishable because there is typically more limited
information available to courts at an interim hearing, which may increase the
need for supervision of compliance pending a final order. AGD further observed
that the courts would retain jurisdiction to refer parties to non-court family
services including family counselling, family dispute resolution and
post-separation parenting programs.[203]
The Family Court did not comment publicly on these
proposed amendments in its evidence to the Committee’s inquiry into the 2015
Bill.[204]
Position of the Chief Justice of the Family Court of
Australia on items 19 and 20
As noted above, the Chief Justice of the Family Court of
Australia, the Hon Diana Bryant, indicated to the Senate Legal and
Constitutional Affairs Committee inquiry into the present Bill that she no
longer supported the proposed amendments to section 65L as a result of
resourcing limitations upon the family law courts. The basis for her Honour’s
concern appears to be that reducing judicial discretion to make orders for the
supervision of parties’ compliance with final parenting orders may limit the
capacity of the courts to implement flexible and innovative solutions to manage
their caseload within the existing resources allocated to the family law courts.[205]
The Senate Legal and Constitutional Affairs Committee did
not express a firm view on the policy merits of the Chief Justice’s proposal
for a ‘triage system’ but commented that the proposal ‘should be given appropriate
consideration by the government’.[206]
At the time of writing this Bills Digest, the Government does not appear to
have announced a position on the Chief Justice’s proposal, or on the retention
or removal of the proposed amendments to section 65L in view of her Honour’s
comments.
It is not clear whether the family law funding measures
announced in the 2017–18 Budget[207]
may have had an impact on the Chief Justice’s views on section 65L, or
conversely whether the Chief Justice’s views may have had an impact on the
Government’s position on the retention or removal of items 19 and 20. It
is also unclear whether the Chief Justice’s triaging proposal might, in some
way, inform or influence the details of the ‘parenting management hearings’ measure
announced in the Budget.[208]
In the event that items 19 and 20 are retained in
the Bill, members of the Parliament may wish to seek advice from the Government
as to whether it has taken the Chief Justice’s concerns and proposals into
consideration; how, if at all, the matters raised by the Chief Justice have been
or will be addressed; and whether the family law courts were consulted on, and
given a meaningful opportunity to provide input to, the ultimate position
reflected in the Bill or any proposed parliamentary amendments that may be
circulated.
Protection of guardians ad litem
from costs orders (items 26–31)
Items 26–31 propose to amend section 117 of the FLA
primarily to protect certain persons from adverse costs orders. The core
amendment is in item 30, which inserts a new subsection 117(6). It
provides that a court hearing family law proceedings may not make a costs order
against a person who is a ‘guardian ad litem’ in those proceedings,
unless the court is satisfied that an act or omission of the guardian ad
litem is unreasonable, or has unreasonably delayed the proceedings. (Item
26 makes a consequential amendment to insert a cross-reference to new
subsection 117(6) in the court’s power to make costs orders in subsection
117(2), and items 27–29 make amendments of an editorial nature to insert
subheadings in section 117).[209]
In general terms, a guardian ad litem or ‘litigation
guardian’ is a person who is appointed (often by a court or tribunal in which
proceedings are being conducted) to protect or promote the interests of a
person for whom they have been appointed. Such persons are generally appointed
if the relevant party to the litigation does not have the capacity to conduct
that litigation. Guardians ad litem can be appointed under legislation
in various Australian and overseas jurisdictions, including in family law and
child protection matters.
The FLA does not contain an exhaustive definition
of a guardian ad litem for the purposes of that Act, however, the
Explanatory Memorandum indicates that the term as used in new subsection
117(6) is ‘intended to include case guardians as described in Part 6.3 of
the Family Law Rules and litigation guardians as described in Division 11.2
of the Federal Circuit Court Rules’.[210]
The Explanatory Memorandum notes that the protection of guardians ad litem
from adverse costs orders is considered desirable as a matter of policy,
because the prospect of personal liability to costs ‘discourages suitable
people, who would otherwise be willing to undertake the role, from agreeing to
appointment’.[211]
Item 31 provides for the prospective application of
the proposed amendments to section 117 with respect to guardians ad litem,
in that they will apply to persons who were appointed as guardians ad litem
upon, or after, the commencement of the proposed amendments, being the day
after royal assent. (Item 31 further provides that it is not material
whether the relevant proceedings were initiated before, or after, the
commencement of the proposed amendments.)
Accordingly, persons who are already appointed as
guardians ad litem in extant cases will not benefit from the legal
protections accorded by the proposed amendments, and might potentially be
liable to costs orders in broader circumstances than those outlined in item
30. The Explanatory Memorandum states that it was not considered
appropriate to ‘change the legal framework operating in respect of [a] guardian
ad litem after the person has commenced in this role’ although it does
not explain the basis for this policy position.[212]
Potential unintended consequences of the
non-retrospective application of the protection from costs orders
It might be questioned whether the strictly prospective
application of beneficial amendments—which are designed to enhance vulnerable
persons’ access to justice by removing an identified barrier—may have
unintended consequences in some circumstances.
In particular, this risk might arise in the case of
protracted family law matters that may take several years to finally resolve (for
example, due to the complexity of contested legal and factual issues arising in
individual cases, and delays in matters proceeding to hearing due to broader court
resourcing and caseload-related issues).
In such cases, it might be questioned whether the
exclusively prospective application of item 30 could create a
disincentive to current guardians ad litem continuing in their roles
given the possibility of their exposure to adverse costs orders, for a
significant period of time, in a broader range of circumstances than those
available under the proposed amendments. It might also be questioned whether
the exclusively prospective application of item 30 could create an
incentive for current guardians ad litem who are providing services in
protracted litigation to seek to terminate their pre-existing appointments and seek
re-appointment after the commencement of the amendments, in order to avail
themselves of the new protections from adverse costs orders.
The exclusively prospective application of item 30 may
also risk creating arbitrary consequences for guardians ad litem
who may have been appointed prior to the commencement of the proposed
amendments, but who did not commence providing their services until after the
commencement of those amendments. In the abstract, there does not appear to be a
readily identifiable policy justification for the differential treatment of
such persons as compared to persons who accept an appointment as a guardian ad
litem and commence providing their services after the commencement of the
proposed amendments.
Accordingly, it might be questioned whether the retrospective
application of item 30 to guardians ad litem who were appointed
prior to the commencement of that item would be preferable. The retrospective
application of a beneficial measure (being one that reduces a person’s exposure
to liability in pursuit of a broader public interest objective) may promote the
equitable treatment of current guardians ad litem with respect to their
exposure to costs orders, thereby helping to ensure the retention of such
persons’ services in extant proceedings.
If the wholesale retrospective application of item 30
is not supported as a matter of policy, an alternative option may be to consider
developing a transitional provision for persons who were appointed as guardians
ad litem prior to the commencement of item 30. Such a provision
could apply the limitation upon these persons’ individual liability to costs
orders under new subsection 117(6) to the services that they render from
the commencement date of the proposed amendments.
Limited disclosures of settlement
offers (items 32-34)
Items 32–34 propose to amend section 117C of the FLA,
which governs the disclosure of offers of settlement in most family law
proceedings, other than proceedings concerning divorce and nullity of marriage,
and certain proceedings concerning children. (Specifically, the excluded
proceedings concerning children are applications for parenting orders, injunctions
in relation to children, and the registration and transmission of orders
dealing with children made under the laws of Australian states and territories
and overseas jurisdictions.)[213]
Currently, subsection 117C(2) imposes a prohibition on the
making of disclosures to a court hearing family law proceedings of either the
fact that an offer of settlement has been made, or the terms of an offer. There
is a limited exception for disclosures made for the purpose of the court making
a decision about the making or terms of a costs order under section 117 (noting
that the court must take into account the existence and terms of any settlement
offers when making decisions in relation to costs).[214]
Item 32 proposes to limit the prohibition in
subsection 117C(2) by removing the prohibition on the disclosure of the
fact that a settlement offer has been made, while retaining the prohibition on
the disclosure of the terms of the offer (other than in relation to costs
orders under section 117). The Explanatory Memorandum indicates that the
proposed amendment is intended to promote the early settlement of matters, and
to strike a balance between encouraging parties to negotiate and ensuring the
ability of the court to supervise matters.[215]
Item 33 makes a consequential amendment to repeal a provision that
will become spent as a result of item 32.[216]
Item 34 provides for the retrospective application
of the proposed amendments to section 117C, in that they will apply to offers
made before the commencement of the proposed amendments. The Explanatory
Memorandum indicates that it is considered appropriate, as a matter of policy,
for courts to consider whether a settlement offer has been made ‘for case
management and similar purposes’.[217]
The Explanatory Memorandum further suggests that ‘it is
very unlikely that parties would suffer any detriment as a result of the retrospective
application of this amendment’ largely on the basis that there is not expected
to be a significant practical effect on extant cases. In particular, the
prohibition will remain on the disclosure of the terms of the offer, and existing
subsection 117C(3) will provide that a judge will not be disqualified from
hearing a matter if the existence of an offer is disclosed in contravention of
the current prohibition.[218]
Appointment of members of the
Family Court of Australia Rules Advisory Committee (items 37–41)
Items 37–41 amend the procedure for appointing
members of the Rules Advisory Committee of the Family Court prescribed in
section 124 of the FLA.
Broadly, section 124 provides for the establishment of a
Rules Advisory Committee to advise judges of the family law courts in relation
to the making of the rules of court. Under existing subsection 124(3), members
are appointed by the Governor-General on the nomination of the Attorney-General,
who must consult with the Chief Justice of the Family Court.
The core amendments are in items 37 and 38, which
propose to amend the appointment procedures in subsection 124(3) so that the
Chief Justice of the Family Court may make all appointments. The Explanatory
Memorandum states that the current appointment process is considered to be ‘too
onerous’ and indicates that the proposed amendments will align the appointment
process with that of the Federal Circuit Court.[219]
Items 39 and 40 make consequential amendments and
remove spent provisions of section 124. Item 41 provides that the
amendments to section 124 are of prospective application. They will apply to
persons appointed as members of the committee after the amending items
commence, with the exception of the consequential amendments contained in item
40 governing resignations from the committee. (The amendments made by item
40 will apply to the resignation of persons who are appointed to the
committee prior to, and after, the commencement of the amending items.)
Miscellaneous technical, minor and
consequential amendments (items 8, 10, 11, 24, 25, 53 and 56–70)
Schedule 6 to the Bill also proposes to make a
number of technical or minor amendments to miscellaneous provisions of the FLA,
and consequential amendments to a number of other Acts. These proposed amendments,
which are summarised below, do not appear to raise any substantial legal or
legal policy issues.
Parts 1 and 2—technical and minor
amendments (items 8, 10, 11, 13, 14, 16, 24, 25 and 53)
Miscellaneous amendments of a technical or otherwise minor
nature in Parts 1 and 2 include:
- a
new provision confirming a long-held view that the Family Court of Australia is
a court of law and equity, as well as a superior court of record—which is
relevant to the interpretation of the court’s implied powers[220]
- repealing
a provision specifying the physical location of the Principal Registry of the
Family Court, to reflect a view that it is unnecessary to prescribe this matter
in primary legislation (consistent with the approach taken to the location of
the Federal Circuit Court)[221]
- a
new provision confirming the view that Registrars and Deputy Registrars of the
Family Court, the Federal Circuit Court and a State family court have the same
protection and immunity as a judge when conducting conferences about property
matters[222]
- inserting
subheadings to section 44 (governing the institution of family law proceedings)
as an aid to the readability of the provision[223]
- inserting
a note to a technical provision setting out the constitutional basis for the
application of Part VII (children) to clarify that the technical provision
identifies an alternative constitutional basis supporting the application of
Part VII (namely, limiting it to matters involving the children of
marriages) if a court held that there were limitations in the States’ referral
of legislative power to the Commonwealth with respect to ex‑nuptial
children[224]
- repealing
a redundant provision conferring a regulation-making power under the FLA
to prescribe amounts that legal aid bodies (referred to as ‘relevant
authorities’) may pay to legal practitioners acting in matters arising under
the FLA, noting that legal aid commissions are subject to separate fee
and governance related arrangements that do not rely on regulations made under
the FLA[225]
- expanding
the obligation on the Principal Executive Officer of a court exercising
jurisdiction under the FLA to provide certain additional information to
persons considering initiating proceedings.[226]
Part 3—Re-numbering and
consequential amendments (items 56-70)
Part 3 of Schedule 6 to the Bill comprises three
divisions, which propose to make minor and technical amendments that are
consequential to various substantive amendments proposed in Parts 1 and 2.
Division 1 (item 56) renumbers provisions of
Part VIIIB of the FLA[227]
to ensure that their numbering is consecutive to the surrounding parts of the
Act. Division 2 (item 57) and Division 3 (items 58–70)
would make consequential amendments to the FLA and a number of other
Acts which cross-refer to the provisions of Part VIIIB of the FLA that
will be renumbered by item 56.
Schedule 7—amendments
to the International Arbitration Act 1974
The International Arbitration Act (IAA) implements
Australia’s obligations under the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (the New York Convention).[228]
The IAA also implements in Australian law the United Nations Commission
on International Trade Law Model
Law on International Commercial Arbitration (UNCITRAL Model Law).[229]
Schedule 7 proposes to amend provisions of the IAA
to ensure that they are aligned with international practice, relating
principally to the interpretation of corresponding provisions of the New
York Convention and the UNCITRAL Model Law and related instruments. The
key proposed amendments are in items 2, 7 and 11.[230]
Key amendments to section 8—persons who are bound by a
foreign award (item 2)
Item 2 proposes to amend subsection 8(1) of the IAA
which deals with the persons upon whom a foreign award (arbitral decision) is
binding.[231]
It currently provides that a foreign award is binding upon ‘the parties to the
arbitration agreement in pursuance of which it was made’. Item 2 proposes
to omit the phrase ‘to the arbitration agreement in pursuance of which it was
made’ and substitute the phrase ‘to the award’. This will mean that a foreign
award is binding upon the parties to that award, rather than the parties to the
arbitration agreement.
Policy justification for the
proposed amendments to section 8
The Explanatory Memorandum states that this amendment is
intended to resolve conflicting authority of State intermediate courts on the
interpretation of subsection 8(1) as well as to align the provision with
domestic legislation in the United Kingdom, Singapore and Hong Kong
implementing the New York Convention.[232]
In particular, the Explanatory Memorandum states that the
proposed amendment will mean that an award creditor (the successful party) need
only produce the relevant award and arbitration to the domestic court in which
enforcement is sought, in order to discharge his or her evidential onus in
enforcement proceedings. This is so even if the award debtor is not named in
the relevant arbitration agreement.[233]
The Explanatory Memorandum suggests that this is
consistent with English authority holding that process contemplated by the New
York Convention for an award creditor to obtain enforcement is simply the production
of the relevant arbitral award and agreement.[234]
It further suggests that the proposed amendment will remove an ‘unnecessary
procedural step, which creates an opportunity for the award debtor to
improperly delay enforcement’.[235]
The Explanatory Memorandum suggests that the proposed
amendment will not cause undue detriment to an award debtor, because he or she
has multiple opportunities to challenge the award, or the arbitral proceedings
in which the award was made. (For example, challenges to the jurisdiction of
the arbitral tribunal during the relevant arbitral proceedings, or making an
application to the domestic court of the country in which the arbitration is
conducted to have the award set aside, or challenging an application for
enforcement.)[236]
Retrospective application of the
proposed amendments to section 8
Item 5 provides that the proposed amendments to
section 8 will apply to all arbitral proceedings, whether or not they were
commenced before the commencement of the proposed amendments if the Bill is
passed.
While the commentary on this item in the Explanatory
Memorandum does not provide justification for the inclusion of a retrospective
application provision,[237]
the Attorney-General’s response to the Senate Scrutiny of Bills Committee
indicated that ‘the substantive rights of the parties which are determined by
the arbitral tribunal and expressed in the arbitral award would not be impacted
by this Bill. The Bill would only alter procedural aspects of enforcement
proceedings which commence after the Bill’ (emphasis added).[238]
The Senate Scrutiny of Bills Committee and the Legal and
Constitutional Affairs Committee have requested the Government to amend the
Explanatory Memorandum to include an explanation of this position.[239]
Key amendments to section 18—competent court for the
enforcement of foreign awards (item 7)
Item 7 proposes to amend section 18 of the IAA,
which defines the Australian courts that are deemed to be ‘competent courts’
for certain matters arising under the UNCITRAL Model Law, which is
adopted by Division 2 of Part III of the IAA.
Currently, section 18 does not define a ‘competent court’
for the purpose of enforcing awards or certain interim measures under the Model
Law. Nor does it define a ‘competent court’ for the purpose of providing
procedural assistance to arbitral tribunals (with respect to the taking of
evidence in support of those tribunals).
Item 7 proposes to insert new subsection 18(4)
to address this gap, providing that the relevant courts are the Federal Court
of Australia and the Supreme Courts of the States and Territories. The
Explanatory Memorandum states that the proposed amendment will resolve current
uncertainty which has ‘led to costly and confusing legislation as to which
courts have jurisdiction for these purposes’.[240]
Committee and stakeholder
scrutiny—possible constitutional risk
In its submission to the Senate Legal and Constitutional
Affairs Committee inquiry into the Bill, the Law Council was supportive of the
policy intent underlying item 7, but also stated that it ‘encourages the
Australian Government to seek the views of the Solicitor-General of the
Commonwealth as to the constitutional validity of designating a Federal Court
as a competent court for the purposes of the UNCITRAL Model Law’.[241]
The Senate Legal and Constitutional Affairs Committee
supported this submission and urged the Government to confirm whether it has
obtained the advice of the Solicitor-General, and to seek his advice if it has
not already done so.[242]
Possible basis for constitutional
risk—compatibility with the requirements of Chapter III of the Constitution
Although the Law Council did not outline the reasons for
its apparent concerns about the constitutionality of item 7, they
presumably relate to its compatibility with the requirements of Chapter III of
the Constitution (the judicial power of the Commonwealth).
For example, it may be that the Law Council seeks an
assurance about the potential existence and treatment of a constitutional risk
that the IAA may be found to impermissibly confer non-judicial power on
a Chapter III court; or that the IAA may be found to provide for the
exercise of judicial power in a manner inconsistent with the essential
character of a Chapter III court or the nature of judicial power.
The High Court unanimously dismissed a constitutional
challenge to the IAA on Chapter III grounds in 2013, distinguishing
between private arbitral decisions and the exercise of judicial power in
registering and enforcing arbitral awards.[243]
Following this decision, it is not immediately apparent that there remain
substantial issues of uncertainty or doubt about the compatibility of the
jurisdictional and procedural arrangements established under the IAA with
the requirements of Chapter III.
Nonetheless, given the significance of the framework
established by the IAA to Australia’s international standing as a seat
of arbitration, Members of the Parliament may wish to consider seeking an
assurance from the Government about the constitutionality of the proposed
amendments. (This might include information about whether legal advice was
obtained in the course of developing the Bill, and if so, whether the
Solicitor-General provided an opinion.)
Key amendments to section 22—confidentiality provisions
(item 11)
Item 11 proposes to amend section 22 of the IAA
which deals with the application under Australian law of certain confidentiality
obligations under sections 23C-23G, which apply to arbitrations that are
subject to the UNCITRAL Model Law.[244]
Subsection 22(2) currently provides sections 23C-23G and certain
other provisions of the IAA apply to arbitral proceedings that are commenced
in reliance on an arbitration agreement, unless the parties to the arbitration
agreement agree that one or more of these provisions will not apply. (In effect,
they are ‘opt out’ provisions.)
Item 11 proposes to insert new subsection 22(3)
which excludes the application of sections 23C-23G from certain arbitral
proceedings. These are arbitral proceedings to which the UNCITRAL Rules
on Transparency in Treaty-based Investor-State Arbitration apply
(Transparency Rules). The Transparency Rules are made under the Convention
on Transparency in Treaty-based Investor-State Arbitration (Convention
on Transparency).[245]
In broad terms, the Convention on Transparency is
an instrument by which parties to investment treaties concluded before 1 April
2014 may express their consent to the application of the Transparency Rules.
The latter rules are a set of procedural requirements for making information publicly
available on investor-State arbitrations arising under investment treaties. In
addition to their application to treaties concluded prior to 1 April 2014,
the Transparency Rules apply to disputes in relation to treaties
concluded after this date where investor-State arbitration is initiated under
the UNCITRAL Arbitration Rules,[246]
unless the parties agree otherwise.
The Transparency Rules can also be used in
investor-State arbitrations initiated under other rules (as provided for
in those other rules) and in ad hoc proceedings.[247]
(Item 1 of Schedule 7 to the Bill amends subsection 3(1) of
the IAA to insert a definition of the Transparency Rules and the Convention
on Transparency by reference to the above instruments. The definitions of
these terms are applied to new subsection 22(3) inserted by item 11.)
At the time of writing this Bills Digest, Australia is not
a party to the Convention on Transparency and the extrinsic materials to
the Bill do not identify whether Australia intends to become a party in the
future and the intended timing if so. However, the Explanatory Memorandum
states that the proposed amendments are intended to prevent any conflict
arising between the IAA and the Convention on Transparency in the
event that parties to an investment arbitration that is conducted pursuant to
the Convention on Transparency were to agree that the seat of
arbitration should be in Australia.[248]
In its submission to the Senate Legal and Constitutional
Affairs Committee inquiry into the Bill, the Law Council recommended that, in
addition to the proposed amendments to the confidentiality provisions,
Australia should become a party to the Convention on Transparency in
order to ‘put Australia in alignment with the international standard for
transparency in investor-state arbitration’.[249]
Other
amendments—technical drafting issues in relation to costs awards in section 27
(items 13-16)
Section 27 of the IAA deals with the awarding of
costs in relation to an arbitration. Currently, it provides that the arbitral
tribunal has discretion to give directions about the costs of an arbitration.[250]
This includes discretion to make directions about various cost-related matters
in making an award, such as directions about by whom and in what manner the
whole or any part of the costs shall be paid, and the basis upon which costs
are to be calculated.[251]
The existing provision uses outdated terminology (by
reference to court scales in civil proceedings) to describe the basis upon
which costs may be assessed (referring to the taxation of costs, and the calculation
of costs on a ‘party and party’ and ‘solicitor and client’ basis).[252]
Items 13–16 collectively amend section 27 so that
the provision authorises an Australian arbitral tribunal to settle an
appropriate approach to awarding costs in individual cases, and does not
require it to use any scales or rules used by a court when making orders in
relation to costs. The Explanatory Memorandum states that this is intended to
ensure flexibility, and in doing so align the IAA with international arbitral
standards for costs.[253]
In its submission to the Senate Legal and Constitutional
Affairs Committee inquiry into the Bill, the Law Council supported the
objective of the proposed amendments to enhance flexibility, but expressed
concern that the drafting of the proposed amendments may produce unintended
consequences.[254]
The Law Council suggested that section 27 of the IAA
should not contain any references to the terminology applied by courts in
assessing costs (namely the ‘settlement’ and ‘taxation’ of costs) and should
simply refer to the arbitral tribunal’s discretion to ‘fix’ costs. It submitted
that this could avoid the risk that section 27 might be interpreted as
reserving certain costs-related powers exclusively to either the court or the
arbitral tribunal, and would ensure that the IAA uses identical
terminology to that in the UNCITRAL Arbitration Rules.[255]
The Committee reported that it was satisfied by an
assurance from the Attorney-General’s Department, which expressed a view that
the proposed amendments would not raise such a risk.[256]
Schedule 8—amendments
to the Legislation Act 2003
Schedule 8 proposes to amend the Legislation Act
to provide that First Parliamentary Counsel is not required to prepare a
compilation of legislation for registration on the Federal Register of Legislation in
certain circumstances.[257]
The main amendments are provided in items 1, 2, 4 and 5. (The proposed
amendments in items 3, 6 and 7–10 are consequential to these items.)
Repeal of obligations where a provision lapses, expires or
otherwise ceases to be in force (Items 1, 2 & 5)
Items 1 and 2 propose to amend paragraphs 15Q(1)(c)
and 15Q(2)(e). Currently, these provisions respectively define ‘required
compilation events’ and ‘discretionary compilation events’. These terms are
material to obligations imposed or authorisations conferred upon First
Parliamentary Counsel under section 15T, requiring or authorising him or her to
register a compilation of an Act or instrument on the Federal Register of
Legislation.
Paragraphs 15Q(1)(c) and 15Q(2)(e) presently cover
circumstances in which a provision of an Act or instrument, or an entire Act or
instrument, is repealed, lapses, expires or otherwise ceases to be in force.
This includes circumstances in which an amending Act or instrument expressly
repeals a provision or an entire Act or instrument. It also extends to
circumstances in which a provision ceases to be in force that do not involve
any legislative activity—for example, if a court finds a provision to be
invalid.
Items 1 and 2 propose to omit the phrase ‘lapses,
expires or otherwise ceases to be in force’ from each provision, so that the
requirement or authority to prepare a compilation is triggered only when a
provision of an Act or instrument, or an entire Act or instrument, is expressly
repealed by another Act or instrument.
Item 5 proposes to make a corresponding amendment
to the requirement in paragraph 15T(7)(a), which provides that First
Parliamentary Counsel must ensure that a registered compilation is no longer
shown on the Federal Register of Legislation as a compilation currently ‘in force’
as soon as practicable after the Act or instrument is repealed, expires, lapses
or otherwise ceases to be in force. The proposed amendment would remove the
phrase ‘expires, lapses or otherwise cases to be in force’ from this provision.
The Explanatory Memorandum states that these proposed
amendments are intended to ‘provide greater certainty about when provisions of
Acts or legislative instruments are removed from the “In Force” part of the
Federal Register of Legislation’ and to ‘assist in maintaining the quality of
the statute book by encouraging the express amendment of legislation to repeal
provisions that have ceased to be in force’.[258]
Comment—providing
an assurance to users of legislation about the currency of ‘in force’
compilations
The extrinsic materials to the Bill do not explain how users
of registered compilations might be assured that the version of the compilation
designated on the Federal Register of Legislation as the version ‘in force’
does not include provisions that have expired, lapsed or ceased to be in force
other than by legislative repeal, amendment or modification, given that the
legal status of such provisions may not be clearly identifiable or widely
known.
Although the proposed removal of the statutory obligation
to prepare and register compilations in these circumstances may create an
incentive for the making of amendments to expressly repeal provisions of this
kind, it is possible that amending legislation may not be introduced or passed,
or amending instruments may not be made or registered, in a timely way. Neither
the Bill nor the existing provisions of the Legislation Act appear to
impose an obligation to introduce amending legislation, or to make and register
amending instruments, as soon as possible after the relevant provision (or
entire Act or instrument) expires, lapses or ceases to be in force.
However, it may be the that this matter is capable of
being managed by the exercise of First Parliamentary Counsel’s discretion under
subsection 15T(6) of the Legislation Act to prepare and register a
compilation of an Act or instrument even if neither a required compilation
event nor a discretionary compilation event has occurred for the relevant Act
or instrument.
For example, if a court held that a provision of
significant regulatory importance was invalid, this might tend in favour of
First Parliamentary Counsel exercising his or her discretion to prepare a compilation
on his or her own initiative under subsection 15T(6). Agencies responsible for
administering legislation might liaise with First Parliamentary Counsel
about significant judicial decisions or other events that may result in
provisions of their legislation ceasing to be in force other than by express
amendment or repeal, for the purpose of First Parliamentary Counsel
determining whether a new compilation is needed.
Repeal of obligation to prepare or lodge compilations for
retrospective amendments (Item 4)
Item 4 proposes to amend section 15Q to include new
subsection 15Q(4) which provides that a compilation of an Act or instrument
is not required to be prepared or lodged for registration to take account of a
retrospective commencement of an amendment of the Act or instrument. However,
it confers discretion upon First Parliamentary Counsel (and other
rule-makers with responsibility for the preparation of compilations) to prepare
a compilation of an Act or instrument and lodge it for registration.
The Explanatory Memorandum states that this amendment will
provide the Office of Parliamentary Counsel and other agencies with
responsibility for preparing compilations with ‘flexibility to prepare
compilations that take account of retrospective amendment when it is
appropriate to do so’ and that ‘amending legislation will continue to be
available to the public in the most current and correct versions’.[259]
Schedule 9—amendments
to the Marriage Act 1961
The Bill proposes to make largely technical or otherwise
minor amendments to the Marriage Act, including:
- amending
provisions relating to the provision and witnessing of parental consent to the
marriage of minors (being persons aged 16 or 17 years) to modernise terminology
and align it with the Family Law Act[260]
- amending
provisions relating to the mental capacity of a person to consent to marriage,
to ensure that persons with an intellectual disability are not unnecessarily
prevented from entering into a marriage, and reflect a proposal of the
Australian Law Reform Commission to establish national decision-making
principles to protect and promote the rights of persons with disabilities in
the design and administration of legislation[261]
- amending
provisions governing the administration of the Register of Marriage Celebrants,
generally to clarify what constitutes the Register (namely, the publicly
available Register that is maintained on the internet); and the obligations of
celebrants to notify the Registrar of Marriage Celebrants of certain changes to
their circumstances[262]
- clarifying
the legal status (as non-legislative instruments) of certain authorisations to
solemnise marriages[263]
- creating
exceptions to the liability of persons to pay an annual celebrant registration
charge, generally where the celebrant is the subject of proceedings related to
the review of a decision to de-register him or her[264]
- amending
various notice requirements in relation to deregistration decisions, primarily
to address an anomaly that requires the Registrar to provide a written notice
of deregistration to a person who has already been removed from the Register
(for example, due to the person’s death or resignation, or as a result of a
disciplinary measure)[265]
- clarifying
the date on which a celebrant’s deregistration will take effect, where the
celebrant has been deregistered for non-payment of the annual celebrant
registration charge[266]
- confirming
the power of the Registrar to take disciplinary action against a celebrant for
that celebrant’s failure to comply with a disciplinary measure imposed upon him
or her[267]
- reinstating
some provisions that were erroneously repealed in 2002, relating to the
Registrar of Overseas Marriages[268]
and
- addressing
a minor inconsistency between provisions governing the appointment and
authorisation of persons to solemnise marriages, and the publication of lists
of persons who are authorised or appointed.[269]
The proposed amendments do not appear to substantially
change the underlying policy or regulatory approach under the Marriage Act
and did not attract significant stakeholder or committee comment. Two matters
are discussed below, concerning the judicial interpretation and administrative
implementation of some measures.
Amendments relating to the mental
capacity of a person to consent to marriage (items 4 and 5)
In its submission to the Senate Legal and Constitutional
Affairs Committee, the AHRC supported the enactment of items 4 and 5,
but also recommended the consequential amendment of the administrative Guidelines
on the Marriage Act 1961 for Marriage Celebrants to include ‘information
for marriage celebrants about how they can best ensure that persons with
disabilities are able to make decisions about marriage, including through
supported decision making where appropriate, and have those decisions respected’.[270]
The Committee noted the advice of the Attorney-General’s
Department that the Government intended to amend these guidelines if the Bill
is passed.[271]
It remains to be seen whether any proposed updates to the guidelines will be
the subject of public or targeted stakeholder consultation before they are
finalised in the event that the Bill is passed.
Amendments relating to the
provision of parental consent to the marriage of minors (item 42)
Item 42 forms part of the proposed amendments
relating to the provision of parental consent to the marriage of minors. It
amends the table in the Schedule to the Marriage Act of the persons who
may provide consent to the marriage of a minor for the purposes of the consent
requirement in section 14 of that Act.
As the Explanatory Memorandum notes, the Schedule to the Marriage
Act ‘was written in the 1960s and last amended in 1988 [and] provides
different rules for giving consent, based on outdated considerations such as
whether a minor was adopted, or whether the minor’s parents were married. The
Schedule also uses concepts and terminology, such as ‘custody’, which are not
used in family law today’.[272]
Item 42 repeals the existing Schedule to the Marriage
Act and substitutes new Schedule 1—Consent to the marriage of a minor.
New Schedule 1 comprises a table (proposed clause 1) setting
out whose consent is required before a minor may marry, according to who
exercises parental responsibility or guardianship and the source of that
responsibility or authority. There are six table items dealing with different
circumstances.
One such provision (table item 2) deals with
circumstances in which there is a court order in force granting parental
responsibility for the minor to one or more persons, whether or not those
persons are the minor’s parents. (That is, a parenting order issued under
the FLA). In this scenario, the table provides that consent to the
marriage of the minor must be provided by ‘each person who, under the order,
has (whether explicitly or implicitly) parental responsibility for giving
consent to the minor’s marriage’.[273]
Possible ambiguity—parenting orders
that do not deal expressly with parental responsibility for the consent to the marriage
of a minor
It might be questioned whether this amendment may create
ambiguity in the event that a parenting order issued under the FLA allocates
responsibility for various matters between the parties, and does not deal
explicitly with the matter of who has parental responsibility for giving
consent to the marriage of a child who is the subject of the order, in the
event that the child sought to enter into a marriage as a minor.
It is conceivable that a parenting order that allocates
parental responsibility for some matters to one party, and parental
responsibility for other matters to one or more other parties, may not make
explicit provision with respect to the allocation of parental responsibility in
relation to the marriage of a child while he or she is a minor.[274]
In this event, it is unclear what could constitute implicit parental
responsibility for the purpose of proposed table item 2 in new Schedule
1 to the Marriage Act.
Presumably, an argument would need to be put that one
party (or both or all parties) to the parenting order had implicit parental responsibility
for providing consent to the child’s marriage as a minor. If the parties held
different views about whether consent should be provided, this could lead to
conflict between them about who is required to provide consent, which might
require further applications to the court for resolution.
The Explanatory Memorandum does not appear to provide
meaningful guidance about the practical application of proposed table item 2,
stating that where a parenting order provides for shared parental responsibility
between the parties, ‘table item 2 would provide that the person with parental
responsibility for matters pertaining to the minor’s marriage would be the
person whose consent is required’.[275]
However, it does not provide any guidance in identifying which matters that are
specified in an order in relation to parental responsibility could impliedly
amount to parental responsibility for matters pertaining to the minor’s
marriage.
Possible solutions—legislative and non-legislative
measures
Consideration might be given to amending the Explanatory
Memorandum to specify the matters contained in a parenting order that the
Government may have in contemplation as constituting, or being capable of
constituting, implicit parental responsibility for providing consent to the
marriage of a minor for the purpose of proposed table item 2 in new Schedule
1.[276]
Alternatively, consideration might be given to amending proposed
table item 2 to particularise who must provide consent to the marriage of a
child who is a minor if a parenting order does not make express provision for
this matter.
For example, one way of avoiding disputes about what
constitutes implicit parental responsibility for providing consent to the
marriage of a minor might be to require the consent of all persons exercising
parental responsibility for the minor under the parenting order. It would then
be a matter for the court, in making or varying a parenting order, to decide
whether or not the order should specifically allocate parental responsibility
for providing consent to a minor’s marriage.
If an order contained a specific provision of this kind,
it would displace the general requirement in new Schedule 1 to
the Marriage Act for the consent of both (or all) parties exercising
parental responsibility in relation to the minor under the parenting order.
Schedule
10—amendments to the Sex Discrimination Act 1984
Item 1 proposes to repeal section 43 of the Sex
Discrimination Act (SDA). Section 43 provides that it is not unlawful
to discriminate against a woman on the ground of her sex in connection with
employment, engagement or appointment in the ADF, in a position in involving
the performance of combat duties, or in prescribed circumstances in relation to
combat duties.
‘Combat duties’ are defined in the Sex Discrimination
Regulations 1984 (SD Regulations) made under the SDA as ‘duties
requiring a person to commit, or to participate directly in the commission of,
an act of violence against an adversary in time of war’.[277]
The Explanatory Memorandum states that the repeal of
section 43 is consistent with the Government’s policy, given effect from 1
January 2016, to remove gender restrictions from ADF combat roles.[278]
The effect of item 1 is that a person could make complaint under the SDA
in relation to alleged unlawful discrimination in employment, engagement or
appointment to ADF positions involving combat duties. The Attorney-General’s
second reading speech on the Bill also indicates that the proposed repeal of
section 43 is consistent with Australia’s intention to withdraw its reservation
to the Convention on the Elimination of All Forms of Discrimination Against
Women in relation to combat-related duties.[279]
As the repeal of section 43 of the SDA will make
redundant regulation 3 of the SD Regulations, an amending instrument will
presumably be made to repeal the spent regulation if the Bill is passed
(although the Explanatory Memorandum does not make any reference to
repealing regulations, in contrast to its explanation of the proposed
amendments in Schedule 4).
Arguably, a more efficient practice would be for amending
legislation that proposes to repeal a regulation-making power to also repeal
the relevant regulations made under that power. The simultaneous repeal of the
regulation-making power and the regulations made under that power would remove
the possibility that spent regulations, which no longer have legislative
authority under the primary Act, could remain on the statute book for any
period of time if the Bill were passed.
Concluding comments
The majority of the proposed amendments in the Bill are
fairly described as minor or technical in nature. If enacted, their effect
will be to streamline existing provisions, simplify or strengthen their
application, or remove the risk of ambiguity in their interpretation.
However, the Senate Legal and Constitutional Affairs
Committee has recommended a number of amendments to the Bill, and has
recommended or suggested that the Government take various non-legislative
actions in relation to several measures in the Bill. (This includes obtaining
the advice of the Solicitor-General on the constitutionality of the amendments
to the IAA in Schedule 7, and amending the Explanatory Memorandum
to include justification for certain application provisions in Schedule 7.)
At the time of writing this Bills Digest, the Government
had not released a response to the Committee’s report, nor circulated proposed amendments
to the Bill or issued a revised Explanatory Memorandum to implement the
Committee’s recommendations.
Offence-specific defences to international
parental child abduction-related offences
A significant policy issue before the Parliament is consideration
of the Senate Legal and Constitutional Affairs Committee’s recommended
amendments to the new and existing offences in the FLA (Schedule 6,
Part 2, Division 1) for the wrongful removal or retention of children, to
include an exception to recognise the circumstances of persons escaping from family
violence, and a further exemption where the other person exercising parental
responsibility for the child has provided non-written consent to the removal or
retention.[280]
These recommendations reflect a different position to that
of the Committee as it was constituted in 2015. In 2015, the Committee did
not support stakeholder suggestions to enact exceptions for persons fleeing
family violence (among other suggested exceptions).[281]
The Committee’s recommendations on the present Bill
accord more closely with the views of the Senate Legal and Constitutional
Affairs References Committee, as it was constituted in 2011, in its inquiry
into international child abduction to and from Australia. In its report on the
latter inquiry, the References Committee endorsed recommendations of the Family
Law Council to include various exceptions to the proposed offences (including
for persons escaping family violence) as part of a range of legislative and
operational or administrative measures to strengthen Australia’s response to
international parental child abduction.[282]
Power of the family courts to
appoint family consultants
It also remains to be seen whether, in view of the submission
of the Chief Justice of the Family Court to the Senate Legal and Constitutional
Affairs Committee inquiry into the Bill, the Government will proceed with the
proposed amendments to section 65L of the FLA in items 19 and 20 of
Schedule 6. (As outlined above, these measures propose to limit the
jurisdiction of the family law courts to make an order requiring a family
consultant to supervise or assist parties to comply with a final parenting
order, so that a court may only issue such orders in exceptional circumstances
rather than at its sole discretion.)
In particular, it remains to be seen whether the source of
the Chief Justice’s opposition to the proposed amendment—namely, the
under-resourcing of the family law courts—could be addressed by the additional
family law-related funding measures announced in the 2017–18 Budget.[283]
In any event, there is an outstanding policy question as
to whether it may be preferable to retain section 65L in its existing form so
that this provision could be utilised to implement the proposed ‘triage system’
suggested by the Chief Justice in her submission to the Senate Legal and
Constitutional Affairs Committee. This proposal would enable some matters to be
resolved by a Registrar (who would presumably exercise delegated judicial power,
under the supervision of the court) with the assistance of a family consultant
appointed under section 65L.[284]
The proposed amendments would only authorise appointments under section 65L to
be made in exceptional circumstances, which may limit the application and
effectiveness of any ‘triage system’.
It also remains to be seen whether the Government’s
proposed pilot program of parenting management hearings as announced in the
2017–18 Budget[285]
may perform a similar role to the Chief Justice’s proposed ‘triage system’. If
so, it might be questioned whether retaining the existing jurisdiction of the family
law courts to appoint family consultants under section 65L could more
effectively support the implementation of the new program, and provide
flexibility to develop it further as the pilot study progresses and its results
are evaluated.
[1]. The
term ‘omnibus Bill’ refers to a Bill containing proposed amendments to a range
of Acts administered by a single portfolio, or related legislation administered
by multiple portfolios. An omnibus Bill is considered suitable for minor and
relatively non-controversial amendments, including non-urgent amendments of an ‘administrative
or housekeeping nature’. Such amendments can be stockpiled until a convenient
opportunity arises to consolidate them in an omnibus Bill. See: Department of
the Prime Minister and Cabinet, Legislation
Handbook, February 2017, pp. 21–22. Omnibus legislation to amend
civil law and justice legislation is introduced and enacted periodically.
See, for example, Civil Law and
Justice Legislation Amendment Act 2015 and Civil Law and
Justice (Omnibus Amendments) Act 2015.
[2]. G
Brandis, ‘Second
reading speech: Civil Law and Justice Legislation Amendment Bill 2017’,
Senate, Debates, 22 March 2017, p. 1855.
[3]. Ibid.,
p. 76.
[4]. Validating
provisions are a type of provision designed to validate particular past actions
in a manner that does not adversely affect accrued rights or interests. See
further: DC Pearce and RS Geddes, Statutory Interpretation in Australia,
8th edn, LexisNexis Butterworths, Sydney, 2014, pp.
409–411. The validating provisions proposed in
the Bill deal with circumstances in which a Minister purports to exercise a
power or perform a function or duty that is conferred or imposed on another
Minister by an Act. The first-mentioned Minister’s action is not necessarily
invalid merely because the relevant power, function or duty was conferred or
imposed on the other Minister. See also: Acts Interpretation Act,
section 19D (validating acts done by a Commonwealth authority if the authority acted
on the basis of a reasonable but mistaken belief about the timing, nature or
occurrence of a machinery of government change).
[5]. These
are: Defence
Force Retirement and Death Benefits Act 1973; Defence Forces
Retirement Benefits Act 1948; Governor-General
Act 1974; Judges’
Pensions Act 1968; Parliamentary
Contributory Superannuation Act 1948; Superannuation Act
1922; Superannuation
Act 1976; Income Tax
Assessment Act 1997; and Superannuation
(Unclaimed Money and Lost Members) Act 1999.
[6]. See
further: MA Neilsen, Family
Law Amendment (Financial Agreements and Other Measures Bill) 2015,
Bills digest, 89, 2015–16, Parliamentary Library, Canberra, 25 February 2016.
The Explanatory Memorandum to the present Bill identifies the following
amendments to the Family Law Act (in Schedule 6) as having been
included in the 2015 Bill: items 4 and 5 (definitional amendments), item
8 (jurisdiction of Family Court), items 10 and 11 (location of
Family Court principal registry and immunity of registrars), item 20 (court
orders relating to involvement of family consultants in compliance with
parenting orders), item 24 (constitutional severability provision
relating to the application of Part VII—children), item 25 (payments to
lawyers), item 30 (costs orders), item 32 (non-disclosure
provision relating to settlement offers and terms), items 35 and 21
(arrest powers and consequential amendments), items 45 and 51 (offences
and other provisions relevant to international parental child abduction), and item 53
(obligation of the principal executive officer of a court to provide certain
information, including about family counselling services). Note also that
measures similar to items 54 and 55 (location orders, which are relevant
to instances of alleged international parental child abduction) were also
included in the 2015 Bill, although these items are not so identified by the
Explanatory Memorandum to the present Bill.
[7]. Convention
on the Recognition and Enforcement of Foreign Arbitral Awards, done in
New York on 10 June 1958, [1975] ATS 25 (entered into force generally 7 June
1959 and for Australia 24 June 1975).
[8]. Senate
Standing Committee for the Selection of Bills, Report,
4, 2017, The Senate, 30 March 2017, p. 3. (See also the statement of reasons
for referral at Appendix 2, p. 6, which focus on the family law measures in the
Bill.)
[9]. Senate
Standing Committee on Legal and Constitutional Affairs, Civil
Law and Justice Legislation Amendment Bill 2017, The Senate, Canberra,
May 2017, p. vii (recommendations 1–5) and Chapter 2 (supporting analysis).
[10]. Ibid.,
recommendations 2–3 and supporting analysis at pp. 23–24.
[11]. Ibid.,
recommendation 1 and supporting analysis at pp. 22–23.
[12]. Ibid.,
pp. 24–25 (Schedule 7) and p. 25 (Schedule 9).
[13]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 4, 2017, The Senate, 29 March 2017, pp. 6–10; and Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 5, 2017, The Senate, 10 May 2017, pp. 67–73.
[14]. Scrutiny
digest, 4, 2017, op. cit., pp. 6–7. (The Committee stated, at p. 7, that it
welcomed the inclusion of the detailed explanation in the explanatory
memorandum, which followed the Committee's request in its Report,
1, 2016, at pp. 24–25, in relation to an equivalent provision in the lapsed
Family Law Amendment (Financial Agreements and Other Measures) Bill 2015.)
[15]. Scrutiny
digest, 5, 2017, op. cit., pp. 67–71. See also: Scrutiny digest, 4,
2017, op. cit., pp. 7–9.
[16]. Scrutiny
digest, 5, 2017, op. cit., pp. 71–72. See also: Scrutiny digest, 4,
2017, pp. 9–10.
[17]. Parliamentary
Joint Committee on Human Rights, Report,
4, 2017, The Senate, 9 May 2017, p. 1. (The Committee previously deferred its
consideration of the Bill in Report,
3, 2017, 28 March 2017, p. 21.)
[18]. Law
Council of Australia, Submission
to the Senate Legal and Constitutional Affairs Committee, Inquiry into the
Civil Law and Justice Legislation Amendment Bill 2017, 20 April 2017, p. 6.
(The Senate Legal and Constitutional Affairs Committee recommended that the Government
amend the Bill to address these concerns: Senate Legal and Constitutional
Affairs Committee, op. cit., recommendation 1 and pp. 22–23.)
[19]. Law
Council of Australia, op. cit., p. 7. (The Senate Legal and Constitutional
Affairs Committee noted advice from the Attorney-General's Department stating
that further consideration of the Law Council’s submissions was needed. The
Committee urged the Government to consider the issue further: Senate Legal and
Constitutional Affairs Committee, op. cit., p. 17.)
[20]. Ibid.,
p. 8. (The Senate Legal and Constitutional Affairs Committee considered that
the Government should ‘clarify whether the Solicitor-General has been consulted
on these amendments’ and to seek his advice if this has not already occurred:
Senate Legal and Constitutional Affairs Committee, op. cit., p. 24.)
[21]. Ibid.,
p. 9. (The Senate Legal and Constitutional Affairs Committee did not appear to
comment on this issue.)
[22]. Ibid.,
pp. 9–10. (The Senate Legal and Constitutional Affairs Committee commented that
it did not consider that these amendments were necessary, in reliance upon the
views of the Attorney-General’s Department: Senate Legal and Constitutional
Affairs Committee, op. cit., p. 25.)
[23]. The
Hon Diana Bryant, Chief Justice of the Family Court of Australia, Submission
to the Senate Legal and Constitutional Affairs Committee, Inquiry into the
Civil Law and Justice Legislation Amendment Bill 2017, 13 April 2017, pp.
1–2.
[24]. Ibid.,
p. 2.
[25]. Ibid.
See also: R Powell, ‘Family
Court underfunded, letting people down, chief justice says’, ABC News
website, 1 May 2017.
[26]. Senate
Legal and Constitutional Affairs Committee, op. cit., p. 22.
[27]. Ibid.,
p. 7.
[28]. Australian
Government, ‘Part
2: expense measures’, Budget measures: budget paper no. 2: 2017–18,
May 2017, p. 66.
[29]. AHRC,
Submission
to the Senate Legal and Constitutional Affairs Committee, Inquiry into the
Civil Law and Justice Legislation Amendment Bill 2017, 13 April 2017. (The
Senate Legal and Constitutional Affairs Committee stated that, in reliance on
advice from the Attorney-General's Department, it was generally satisfied that
most of the issues the AHRC raised in relation to the power of arrest were
capable of management in the administration of the provisions. However, it
recommended one amendment to limit the conferral of powers of arrest and use of
force to employees of the Australian Border Force that have received
appropriate training: Senate Legal and Constitutional Affairs Committee, op.
cit., recommendation 4 and pp. 23–24.)
[30]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 3.
[31]. The
Statement of Compatibility with Human Rights can be found at pp. 4–14 of the Explanatory
Memorandum to the Bill.
[32]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 17.
See also: Acts
and Instruments (Framework Reform) Act 2015, Schedule 2, item 3
(amending provision repealing former section 19BD) and the commentary provided
in the Explanatory Memorandum,
Acts and Instruments (Framework Reform) Bill 2014, p. 97. Former section 19BD
was identical to the proposed provision in new section 19E and was
enacted by the Acts
Interpretation Amendment Act 2011. See further: Explanatory
Memorandum, Acts Interpretation Amendment Bill 2011, pp. 23–24.
[33]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 17.
[34]. Ibid.
[35]. Ibid.
[36]. See,
for example, Project Blue Sky Inc v Australian Broadcasting Authority (1998)
194 CLR 355; [1998]
HCA 28 at [93] per McHugh, Gummow, Kirby and Hayne JJ. Their Honours stated:
‘A better test for determining the issue of validity is to ask whether it was a
purpose of the legislation that an act done in breach of the provision should
be invalid ... In determining the question of purpose, regard must be had to the
language of the relevant provision and the scope and object of the whole
statute’ (citations omitted).
[37]. Acts
Interpretation Act, subsection 2(2). (The effect is that a provision of
another enactment conferring a power, function or duty upon a Minister may
evince an intention—either by express words or a necessary implication arising
from the text, objects or context of the provision—that the relevant action
should be invalid merely because the Minister who purported undertake it
lacked statutory power.)
[38]. These
provisions apply the rules of statutory interpretation under the Acts
Interpretation Act to instruments, unless a contrary intention appears in
the enabling legislation conferring the instrument-making power.
[39]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 17.
[40]. Ibid.
[41]. A
saving provision allows some or all of a repealed law to remain in force under
specified circumstances.
[42]. See:
Explanatory Memorandum, Acts
and Instruments (Framework Reform) Bill 2014, p. 97. On one hand, the
Explanatory Memorandum states that ‘[n]ew section 19D operates more broadly
than existing section 19BD by saving the validity of acts done by authorities
(rather than just Ministers) and in relation to the exercise of a power,
function or duty provided under any form of Commonwealth law or agreement
(rather than only those imposed by an Act)’ (emphasis added). On the other
hand, the Explanatory Memorandum appears to recognise that former section 19BD
applied in broader circumstances than a machinery of government change, in
describing the provision as covering ‘situations where a function, duty or
power is conferred on one Minister by an Act, and a second Minister purports to
perform the function or duty or exercise the power. This might arise where
there is a misunderstanding about the allocation of responsibilities under the
Administrative Arrangements Order, or in substituted reference orders made
under existing sections 19B and 19BA [now repealed]’.
[43]. Under
the Archives Act, a person has a right of access to Commonwealth
government records held by the Archives or in the custody of agencies once they
reach the open access period. Section 31 of the Act requires the Archives to
release open access period records for public access unless they contain
information that falls into one of the exemption categories defined at section
33 of the Act.
[44]. As
outlined below, Part 1 of Schedule 2 (items 12 and 13) also makes some
consequential amendments to the internal review provisions in Division 4 of
Part V.
[45]. Items
1–10 make consequential amendments to other provisions of Division 3 of
Part V of the Archives Act. Items 12 and 13 make consequential
amendments to Division 4 of Part 4 of the Archives Act governing
internal review of access decisions. Item 14 provides for the
prospective application of the proposed amendments in Division 1 of Schedule
2 to the Bill.
[46]. The
‘open access period’ (for records other than Cabinet notebooks or records
containing census information) is defined in subsection 4(3) of the Archives
Act, according to the year in which the record was created. The open access
period is being reduced from 30 years to 20 years over a 10-year period and
currently stands at 25 years from a record's creation date. See further: Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 18;
and NAA, ‘Access
to records under the Archives Act: fact sheet 10’, NAA fact sheet, NAA website,
2017.
[47]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, pp.
19–20.
[48]. Ibid.,
p. 20. As the Explanatory Memorandum also acknowledges (at p.
12), this approach appears to be consistent with comments of the UN Human
Rights Committee on the importance of State parties to the International
Covenant on Civil and Political Rights (ICCPR) putting into the public domain
Government information of public interest to give effect to the right of access
to information in Article 19 of the ICCPR, and the need to make every effort to
ensure easy, prompt, effective and practical access to such information.
[49]. ‘Exempt records’ are defined in section 33 of the Archives Act. Broadly, exempt records include records containing information or
matter the disclosure of which could reasonably be expected to cause damage to
the security, defence or international relations of the Commonwealth; or that
was communicated in confidence in certain circumstances; or that would have a
substantial adverse effect on the financial or property interests of the
Commonwealth, or the lawful business or professional affairs of a private
entity; or that would prejudice law enforcement or administration-related
activities in various ways; or that would prejudice a fair trial; or that would
endanger the life or physical safety of any person; or that would prejudice
public safety.
[50]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 20.
[51]. Ibid.,
pp. 21–22.
[52]. Proposed
subsection 40A(5) defines an ‘item’ for the purpose of subsection 40A(4) as
being ‘the smallest discrete unit used by the Archives to describe a record in
the series for purposes related to the care, management or retrieval of the
record’. A note to the provision provides examples of parts of a file, or a
single file that is not divided into parts. See also: Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, pp.
22–23.
[53]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, pp.
22–26, including several examples of how the new provisions may operate in
practice, at pp. 25–26. Importantly, the Explanatory Memorandum notes at p. 24
that the Director-General may issue multiple extensions under new subsection
40A(4) but the total duration must not contravene the maximum time limit in new
subsection 40A(6).
[54]. Proposed
subsection 40A(9). See also Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 26
which states that ‘At this stage there is no intention to prescribe any such
matters by regulation. The provision is primarily intended as a safeguard in
the event it was considered necessary to ensure that the Director-General was
exercising the discretion in subsection 40A(4) appropriately’.
[55]. Subsection 33(3) of the Acts Interpretation Act provides that, ‘where an Act confers a power to make, grant or issue
any instrument of a legislative or administrative character (including rules,
regulations or by-laws) the power shall be construed as including a power
exercisable in the like manner and subject to the like conditions (if any)
to repeal, rescind, revoke, amend, or vary any such instrument’.
[56]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 26.
[57]. Ibid.,
p. 27.
[58]. Ibid.
[59]. The Open Government Partnership (OGP) is an international
non-governmental initiative that aims to secure concrete commitments from
domestic governments to promote transparency, empower citizens, fight
corruption, and harness new technologies to strengthen governance. Countries
can become members of the Partnership by endorsing a high-level Open Government
Declaration, delivering a country action plan developed with public
consultation, and committing to independent reporting on its implementation
progress. See further: OGP, ‘What is the
open government partnership?’, OGP website.
Australia is a member of the OGP. See further: Department of the Prime Minister
and Cabinet (DPMC), ‘Open
government partnership: Australia’, DPMC website;
and OGP, ‘Australia’, OGP website.
[60]. DPMC, ‘Australia’s first open government national Action Plan 2016–18’, DPMC website. (See especially: Commitment iii—Access to government
information, Measure 3.1—information management and access laws for the 21st
century.)
[61]. Ibid.
[62]. Ibid.
[63]. Ibid.
[64]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017,
p. 29.
[65]. The
NAA Advisory Council is established under Part IV of the Archives Act. Its
functions are prescribed in subsection 11 to furnish advice to the Minister and
Director-General with respect to matters to which the functions of the National
Archives relate (see Part II, especially section 5). Subsection 11(2) provides
that the Minister or Director General may refer particular matters to the
Council for advice, and the Council may also provide advice on matters upon its
own motion. See also: National Archives of Australia, ‘About
us: advisory council’, NAA website, 2017.
[66]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017,
p. 28.
[67]. Family
Law Act, section 4—definition of ‘property settlement proceedings’. (This
term means proceedings with respect to the property of the parties to a
marriage or de facto relationship or either of them; or the vested bankruptcy
property in relation to a bankrupted party to the marriage or de facto
relationship). See also subsections 90K(3) and 90UM(6) of the Family Law Act,
which provide that, when a court makes orders setting aside a financial
agreement, it may (upon the application of a party to the former agreement or
any other interested person) make such orders as it considered just and
equitable for the purpose of preserving or adjusting the rights of persons who
were parties to a financial agreement or other interested persons.
[68]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017,
p. 30.
[69]. Law
Council of Australia, op. cit., p. 6, referring to the decision in Official
Trustee in Bankruptcy & Galanis and Anor [2017]
FamCAFC 20 17 February 2017 per Bryant CJ, Aldridge and Austin JJ (Galanis).
[70]. Galanis
at [43]–[58] (per Bryant CJ, Aldridge and Austin JJ). The court held that it
did not have jurisdiction to hear an application under section 90K of the Family
Law Act to set aside a financial agreement between parties to a marriage,
where the application was made by the Trustee in Bankruptcy as trustee for the
bankrupt estate of the husband, who was a discharged bankrupt.
[71]. Law
Council of Australia, op. cit., p. 6.
[72]. On
one hand, the Explanatory Memorandum states (at p. 70, paragraph 74) that the
proposed amendments ‘are not intended to change the Family Court’s existing
jurisdiction in respect of bankruptcy matters’ which might suggest an intention
to preserve the jurisdictional limitation identified by the Full Court in Galanis.
However, the Explanatory Memorandum also describes the court’s existing
bankruptcy jurisdiction in very broad terms, stating (at p. 30, paragraph 73)
that jurisdiction exists ‘in circumstances when a Trustee applies to the Family
Court of Australia to set aside a financial agreement under sections 90K and
90UM of the Family Law Act 1975’. This might indicate an intention or
assumption that jurisdiction extends to all applications made by the Trustee in
Bankruptcy, without any distinction between discharged and undischarged
bankruptcies.
[73]. Senate
Legal and Constitutional Affairs Committee, op. cit., pp. 22–23.
[74]. Ibid.,
recommendation 1.
[75]. Domicile
Act, section 6–11.
[76]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017,
p. 32.
[77]. Ibid.
[78]. Proposed
section 2, table item 7.
[79]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017,
p. 33.
[80]. Regulation
6, table item 6, column 3 (maximum delivery timeframe for a letter posted using
regular service from an address outside a capital city in one state, for
delivery to an address that is outside the capital city of another state).
[81]. The
uniform evidence jurisdictions are New South Wales, Victoria, Tasmania, the
Northern Territory, and the Australian Capital Territory.
[82]. Judiciary Act 1903,
subsection 79(1) (which provides that the law of each State or
Territory, including the laws relating to procedure, evidence and the
competency of witnesses, shall, except as otherwise provided by the
Constitution or the laws of the Commonwealth, be binding on all courts
exercising federal jurisdiction in that State or Territory in all cases to
which they are applicable). See also: Evidence Act, section 5 (which
provides for the extended application of certain provisions of the Evidence
Act to all proceedings in Australian courts. Section 5 does not provide for
the extended operation of section 160, although it does provide for the
extended operation of other provisions dealing with proof of the sending of
letters and other postal articles by Commonwealth agencies).
[83]. These
are: Defence
Force Retirement and Death Benefits Act 1973; Defence Forces
Retirement Benefits Act 1948; Governor-General
Act 1974; Judges’
Pensions Act 1968; Parliamentary
Contributory Superannuation Act 1948; Superannuation Act
1922; Superannuation
Act 1976; Income Tax
Assessment Act 1997; and Superannuation
(Unclaimed Money and Lost Members) Act 1999.
[84]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 3.
[85]. H
Rhoades (Chairperson, Family Law Council), International
parental child abduction proposed amendments: discussion paper, Letter
of advice to the Attorney-General, 6 June 2012; H Rhoades (Chairperson, Family
Law Council), International
parental child abduction, Letter of advice to the Attorney-General, 14 March
2011; G Watts (Justice, Family Law Council), International
parental child abduction (child support), Letter of advice to the
Attorney-General, 5 August 2011. See further: Family Law Council, Parental
child abduction: a report to the Attorney-General prepared by the Family Law
Council, Family Law Council, January 1998.
[86]. Family
Law Council, op. cit., 2012, pp. 8–9; and Family Law Council, op. cit., March
2011, pp. 3–7 and 10–13.
[87]. Senate
Legal and Constitutional Affairs Committee, International
parental child abduction to and from Australia, The Senate, Canberra,
31 October 2011; and Australian Government, Government
response to the Senate Legal and Constitutional Affairs References Committee
report: international parental child abduction to and from Australia,
tabled 30 March 2012. Broadly, the additional or complementary measures
recommended by the Committee included Ministerial prosecutorial consent or
approval requirements, the development of a specific prosecution policy for
international parental child abduction-related offences, and informational and
dispute resolution measures.
[88]. Family
Law Council, op. cit., March 2011, p. 7 (recommendation 2) and supporting
analysis at pp. 4–6. See also: Senate Legal and Constitutional Affairs
Committee, op. cit., 2011, pp. 64–65 and recommendation 2.
[89]. Senate
Legal and Constitutional Affairs Committee, op. cit., 2011, pp. 64–65 and
recommendation 2.
[90]. Australian
Government, Government
response to the Senate Legal and Constitutional Affairs References Committee
report: international parental child abduction to and from Australia, op.
cit., p. 5 (response to recommendation 2).
[91]. Ibid.,
p. 50.
[92]. See
the note to new section 65YA, which is declaratory of the application of
the extensions of criminal responsibility in Chapter 2 of the Criminal Code
which generally apply to all Commonwealth offences: Criminal Code, section
2.2. While the note is not legally necessary to enliven the application of
Chapter 2 of the Criminal Code, it is consistent with a note to the
corresponding wrongful removal offence in section 65Y, and consistency of
drafting could therefore avoid unintended interpretive consequences.
[93]. Family Law Act 1975
(Cth), section 65Y.
[94]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 50.
[95]. This
is legally significant because, under subsection 13(1) of the Acts
Interpretation Act 1901, a heading or subheading to a provision is part of
an Act and is therefore relevant to the interpretation of the operative
provisions.
[96]. Family Law Act 1975
(Cth), section 65Z.
[97]. Civil
Law and Justice Legislation Amendment Bill 2017, new section 65ZAA.
[98]. See:
Criminal Code, section 2.2 which provides for the application of the
general principles of criminal responsibility in Chapter 2 (including
extensions of criminal liability) to Commonwealth offence provisions. The note
to new section 65ZAA (item 47) is declaratory of this. As with the note
the new section 65YA (item 45), while this provision is not legally
necessary, it is consistent with a note to the corresponding wrongful removal
offence in existing section 65Z that applies where proceedings are pending.
Consistency of drafting is arguably desirable to avoid the risk of unintended
interpretive consequences of some but not all provisions contained a note of
this kind.
[99]. As
mentioned above in relation to item 44 (consequential amendments to
section 65Y) the amendment of the heading to the offence provision in section
65Z is legally significant due to subsection 13(1) of the Acts
Interpretation Act, the effect of which is that the heading is part of the FLA
and therefore relevant to the interpretation of its operative provisions,
including the scope of application of offences.
[100]. More
specifically, subsection 65X(2) of the FLA is a “deeming provision” that
specifies when proceedings in relation to appeals against certain parenting
orders are taken to be ‘pending’ and, consequently, when the offence and
penalty provisions under sections 65Z and 65ZB of the Act will apply in the context
of appeals. Presently, it provides that, for the purposes of the provisions of
the FLA dealing with obligations under parenting orders relating to
taking or sending children from Australia, if an appeal against a decision of a
court in such proceedings has been instituted and is pending, the proceedings
are taken to be pending and, consequently, sections 65Z and 65ZB are enlivened.
The consequential amendments outlined in items 42 and 43 would see
the wrongful retention offences in new sections 65YA and 65ZAA inserted
into subsection 65X(2) to ensure the new offences are captured by the deeming
provision in relation to pending proceedings.
[101]. Part
2.7 of the Criminal Code prescribes general rules for the geographical
application of Commonwealth offences. It creates two main categories of
geographical jurisdiction—general and extended. General geographical
jurisdiction is the default rule (per section 14.1) and broadly applies to
conduct or a result of conduct constituting an offence that occurs wholly or
partly in Australia or aboard an Australian aircraft or ship. There are four
sub-categories of extended geographical jurisdiction (categories A-D) which
vary in their breadth, with category D being the broadest (per sections
15.1-15.4). Categories A-C generally require some form of prescribed connection
with Australia—varying from the location in which the conduct is carried out or
the citizenship or residence of the alleged offender (or the place of
incorporation of a body corporate) and the non-existence of corresponding
offences under the laws of a foreign country in which an Australian person or
body corporate allegedly commits an offence. In contrast, the application of
category D means that the relevant offence will apply to any person, irrespective
of whether or not they have a connection with Australia, and irrespective of
where in the world the criminal conduct or its results occur. However, section
16.1 of the Criminal Code contains an important safeguard, which is that
the Attorney-General’s prior written consent is necessary for the commencement
of a prosecution for an offence that is alleged to have occurred wholly in a
foreign country, and the prospective defendant is neither an Australian citizen
nor a body corporate that is incorporated in Australia.
[102]. Criminal
Code, section 15.4.
[103]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 52.
[104]. Senate
Standing Committee on Legal and Constitutional Affairs, op. cit., 2015, p. 35.
[105]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 52.
[106]. Clause
2, table item 9. See further: Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 53.
[107]. Senate
Standing Committee on Legal and Constitutional Affairs, Civil
Law and Justice Legislation Amendment Bill 2017, May 2017, pp. 10–13.
[108]. Senate
Standing Committee on Legal and Constitutional Affairs, Family
Law Amendment (Financial Agreements and Other Measures) Bill 2015, February
2016, pp. 26–27.
[109]. Senate
Legal and Constitutional Affairs, op. cit., 2017, pp. 11–13. See further:
Australian Human Rights Commission, Submission
to the Senate Legal and Constitutional Affairs Legislation Committee, pp. 8–9.
[110]. AHRC,
op. cit., pp. 8–9.
[111]. Ibid.
[112]. That
is, duress, emergency, self-defence, lawful authority and mistake of fact.
[113]. Attorney-General’s
Department (AGD), Submission
to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Civil Law and Justice Legislation Amendment Bill 2017, p. 3.
[114]. That
is, fleeing from family violence, protecting the child from imminent harm,
reasonable excuse and consent.
[115]. AGD,
Submission, op. cit., pp. 2–5.
[116]. Senate
Legal and Constitutional Affairs Committee, op. cit., p. 23, 2017.
[117]. In
contrast, current subsection 4AB(1) of the FLA provides that family
violence ‘means violent, threatening or other behaviour by a person that
coerces or controls a member of the person's family (the family member ), or
causes the family member to be fearful’. Subsection 4AB(2) provides a list of
illustrative examples of behaviour that may constitute family violence,
covering physical violence against persons, property and animals; deprivation
of liberty; threatening behaviours such as stalking; forms of financial abuse
such as unreasonably denying financial autonomy or denying financial support;
and forms of emotional abuse such as preventing a family member from making or
keeping connections with family, friends or culture. Section 4AB was inserted
by the Family
Law Legislation Amendment (Family Violence and Other Measures) Act 2011,
Schedule 1, item 8. The new definition commenced on 7 June 2012 (per section 3
of the amending Act).
[118]. AGD,
op. cit., pp. 2–3.
[119]. Ibid.,
p. 3. This implemented recommendations of independent reviews of family law
legislation See further: Explanatory
Memorandum, Family Law Legislation Amendment (Family Violence and Other
Measures) Bill 2011 (Act No 189 of 2011),
p. 1. The definition also appears to be consistent with the recommendations of
the Australian Law Reform Commission (ALRC) in its joint report with the New South
Wales Law Reform Commission (NSWLRC), ‘Family
violence: a national legal response’, ALRC Report 114: NSWLRC Report 128,
October 2010, especially recommendation 5-1 and chapter 5, and recommendation
6-4 and chapter 6.
[120]. The
focus of self-defence in section 10.4 of the Criminal Code is the
defendant’s subjective belief that the conduct is necessary to defend
themselves or another person (or to prevent or terminate unlawful imprisonment,
or to protect property, or to prevent or remove a trespass to land or
premises). The trier of fact must also be satisfied that the conduct is an
objectively reasonable response in the circumstances as the defendant
subjectively perceived them to be. There may be some argument as to whether a
person who takes, sends or retains a child overseas in response to alleged
family violence that is constituted by actions other than non-physical violence
or threats (such as economic or emotional abuse) has satisfied the element of
subjective belief as to necessity in the circumstances as they perceived them
to be, and the objective threshold as to the reasonableness of the act of
removal or retention. However, for the reasons elaborated in the footnote
below, the focus of the definition of family violence in subsection 4AB(1) of
the FLA on coercive and controlling conduct, or conduct that instils
fear, may ultimately mean that the defence of self-defence is technically
capable of accommodating these circumstances. It would be a matter for the
trier of fact (namely, the jury or a trial judge in a judge-alone trial) to
consider the elements of the defence in the circumstances of individual cases.
[121]. See:
AGD, Submission, op. cit., p. 4, at which AGD stated, ’While it is appropriate
that this conduct [that is, conduct in the nature of repeated derogatory taunts
or financial abuse] be included within the definition of family violence,
allowing them as a defence against the various [international parental child
abduction] offences would make the offences very difficult to prosecute, and
would provide a defence with a much broader operation than the existing concept
of self-defence’.
It is not
clear on the face of AGD's submission whether the department’s statement about
the broader operation of an offence-specific defence of fleeing family violence
as compared to self-defence was intended to suggest or imply that family
violence constituted by emotional or financial abuse categorically could
not satisfy the elements of self-defence in section 10.4 of the Criminal
Code. It is also unclear whether AGD meant to suggest or imply that an
offence-specific defence of fleeing family violence that would have the effect
of exculpating a defendant in a broader range of circumstances than those
recognised by self-defence under the Criminal Code would be
inappropriate or undesirable as a matter of policy (in addition to raising
practical enforcement-related issues).
In any
event, to the extent that AGD may have intended to suggest or imply that the
amendment of the definition of family violence may result in an inappropriate
expansion of the existing defence of self-defence if an offence-specific
defence of fleeing family violence were to be enacted, it is important to note
that the definition of family violence in section 4AB of the FLA does
not deem as family violence all conduct in the nature of emotional abuse (such
as repeated derogatory taunts) or financial abuse. Rather, subsection 4AB(1)
requires that the relevant conduct must coerce or control a family member, or
must cause that family member to be fearful. Subsection 4AB(2) provides
illustrations of conduct that can constitute family violence, but only if it
results in the requisite coercion, control or causation of fear under
subsection 4AB(1). When the definitional references to emotional or financial
abuse are understood in their statutory context in section 4AB of the FLA,
it is arguable that the types of conduct that are capable of constituting
family violence under the FLA, but could not attract the defence of
self-defence under section 10.4 of the Criminal Code, may be very limited.
In other words, it may be difficult to maintain that the fact a person is
acting under coercion or control or is fearful could not be relevant to the
assessment of a person's genuine belief about the necessity of their actions
for the purpose of self-defence, and the reasonableness of the person’s belief
in the circumstances as he or she perceived them to be.
On this
view, an offence-specific defence of fleeing family violence may not, in
effect, result in the exculpation of conduct that falls short of the legal
requirements for self-defence. As discussed below, this raises a legal policy
question about the desirability of a proposal to enact an offence-specific
defence in the nature of fleeing family violence that may substantially
duplicate a defence of general application (such as self-defence). There appear
to be credible arguments both for and against such a proposal.
[122]. Senate
Legal and Constitutional Affairs Committee (2017), op. cit., p. 13 and
recommendation 2.
[123]. See,
for example, ALRC and NSWLRC, op. cit., pp. 623–625 at [14.9]–[14.13] (in the
context of the application of the general defence of self-defence to victims of
family violence who kill their partners and are charged with homicide). See
also: Victorian Law Reform Commission, Defences
to homicide: final report, October 2004, pp. 63–64 at [3.10]–[3.14].
[124]. While
an express statutory statement of Parliament’s intention about the legal effect
of a provision is not determinative of the meaning of the provision to which
the statement of intention relates, it would be a relevant factor in the task
of statutory interpretation.
[125]. See,
for example, Crimes
Act 1958 (Vic) section 322M (family violence and self-defence) which
provides that, without limiting the general defence of self-defence, for the
purpose of an offence in circumstances where self-defence in the context of
family violence is in issue, a person may reasonably believe that his or her
conduct is necessary in self-defence, and the conduct may be determined to be a
reasonable response even if, among other things, the relevant harm to which the
defendant responded was not immediate. Section 322J further provides guidance
on the types of evidence of family violence that may be relevant to criminal
defences including self-defence. This includes evidence of the history of
family relationships (including violence); the cumulative effect of violence;
social, cultural or economic factors; and the general nature and dynamics of
relationships affected by family violence and the psychological effect and socio-economic
impacts on victims.
[126]. Criminal
Code, section 13.3.
[127]. Criminal
Code, subsection 13.1(2).
[128]. The
ALRC and NSWLRC noted difficulties in obtaining admissible evidence of family
violence in criminal proceedings in their 2010 report, Family violence: a
national legal response, op. cit., pp. 563–564 at [13.7].
[129]. Commonwealth
Director of Public Prosecutions, Prosecution
policy of the Commonwealth: guidelines for the making of decisions in the
prosecution process, n.d., p. 4 at [2.6].
[130]. AHRC,
op. cit., pp. 8–9.
[131]. AGD,
op. cit., pp. 3–4.
[132]. Senate
Legal and Constitutional Affairs Committee (2017), op. cit., p. 13 and
recommendation 3.
[133]. See,
for example, section 65Q (court may issue warrant for arrest of persons
suspected to have contravened certain terms of parenting orders under sections
65M, 65N and 65NA); and sections 68C and 114AA (powers of arrest for
contravention of injunctions for personal protection). The powers of arrest under
the FLA are separate to the powers of arrest conferred on police under Part
IAA, Division 4 of the Crimes Act 1914.
[134]. As
with the powers of arrest under the FLA, the use of force, entry and
search powers in sections 122AA and 122A are separate to the general powers
conferred on police under Part IAA, Division 4 of the Crimes Act with
respect to the arrest of persons for Commonwealth offences.
[135]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 44.
[136]. Administrative
Arrangements Order, 1 September 2016 (as amended 27 October 2016
and 13 April 2017), p. 25.
[137]. These
arrangements are outlined in further detail in the Family Law Rules 2004,
rule 21.17 and the Federal
Circuit Court Rules 2001, rule 25B.74. However, new section 122A would
remove a reference to ‘any other person’ provided in those rules so that the
new provision is an exhaustive prescription of the persons other than police
who are eligible to be authorised to exercise powers of arrest under the FLA.
[138]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 45.
[139]. Federal Circuit
Court of Australia Act 1999, subsection 113A(4).
[140]. FLA,
section 122AA.
[141]. Crimes
Act, section 3ZC.
[142]. Federal Circuit
Court of Australia Act 1999, subsections113A(5), (6) and (7).
[143]. Crimes
Act, section 3ZD.
[144]. Existing
section 67Q of the FLA provides the definition of a ‘recovery order’ for
the purposes of the Act.
[145]. The term
‘premises’ is defined by new subsection 12AA(5) (item 35). Item
1 proposes to amend the general definitions in subsection 4(1) of the FLA
to insert a non-exhaustive definition of the term ‘conveyance’ covering
vehicles, vessels and aircraft.
[146]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 46.
[147]. FLA,
subsection 122A(4) defines a searchable place as a premises or a place or a
vehicle, vessel or aircraft.
[148]. FLA,
subsection 122A(1).
[149]. The
term ‘dwelling house’ would be defined in section 4(1) of the FLA by
virtue of Item 1. This definition provides that a dwelling house
includes a conveyance, or a room in accommodation, in which people ordinarily
retire for the night. (Hence, it appears that the term ‘dwelling house’ for the
purpose of the proposed arrest-related search powers might include a caravan or
camping trailer, or a room in a hotel, motel, boarding house or club).
[150]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 46.
[151]. Ibid.
[152]. Ibid.
[153]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 4, 2017, The Senate, 29 March 2017, pp. 7–8.
[154]. Ibid.,
p. 9.
[155]. Ibid.,
p. 8.
[156]. Ibid.
[157]. Ibid.
[158]. Senate
Scrutiny of Bills Committee, Scrutiny digest, 5, 2017, op. cit., pp.
69–70.
[159]. Ibid.,
p. 70.
[160]. Ibid.,
p. 71.
[161]. Senate
Legal and Constitutional Affairs Committee, op. cit., 2017, pp. 17 and 24
(recommendation 4). However, the Committee did not support other amendments
proposed by the AHRC to place further limitations on the arrest powers and use
of lethal force: Ibid., pp. 14–16 and 23–24. The AHRC’s suggestions included
potential amendments to the Bill to clarify that arrests may only be made when
it is reasonably necessary in specified circumstances and the use of lethal
force and self-defence by certain persons authorised to conduct arrests under
the proposed provisions. See further: AHRC, op. cit., pp.9–13.
[162]. A
location order allows the court to make orders requiring a person to provide to
the Court Registry Manager information that the person has or obtains about the
child’s location. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 55.
[163]. The
Child Protection Convention is defined in section 111CA of the FLA to
mean the Convention on Jurisdiction, Applicable Law, Recognition,
Enforcement and Cooperation in respect of Parental Responsibility and Measures
for the Protection of Children [2003] ATS
19 (done at the Hague, 19 October 1996, entered into force generally 1
January 2002, entered into force for Australia 1 August 2003). A copy of the Child
Protection Convention can be found at Schedule 1 to the FLA.
[164]. The
Commonwealth central authority for the purpose of the Child Protection
Convention is defined in section 111CA of the FLA to mean the
Secretary of the Attorney-General’s Department.
[165]. Convention
on the Civil Aspects of International Child Abduction (known as the ‘Child
Abduction Convention’ or ‘Hague Convention’) [1987] ATS
2 (done at the Hague, 25 October 1980, entered into force generally 1
December 1983, entered into force for Australia 1 January 1987). The Child
Abduction Convention requires each state party to establish and resource a
Central Authority for the purpose of administering the Convention in their
country. The Central Authority has a number of functions under the Child
Abduction Convention to facilitate the return of children to and from other
Convention countries. In Australia (as with other countries with federal
systems of government) there are two broad types of Central Authorities. These
are the Commonwealth Central Authority, who is the Secretary of the Attorney-General’s
Department; and State Central Authorities, which are designated officials or
agencies in each Australian state and territory. In broad terms, a Central
Authority liaises with its counterparts in other Convention countries and can
provide information and some forms of assistance to the individuals involved in
or affected by cases of parental child abduction. See: FLA, section 111B
and Family Law
(Child Abduction Convention) Regulations 1986, regulation 2 for the
definition of ‘central authority’ of a Convention country and ‘Commonwealth
central authority’ and ‘State central authority’ which are established as
Australia’s central authorities under the Child Abduction Convention.
[166]. Hague
Conference on Private International Law, Status
table: Convention of 25 October 1980 on the Civil Aspects of International
Child Abduction, website, updated 16 May 2017.
[167]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 56.
[168]. Article
6 of the Child Abduction Convention requires that States parties
designate a Central Authority to discharge the duties imposed by the Convention
on such authorities. Federal States, States with more than one system of law or
States having autonomous territorial organisations shall be free to appoint
more than one Central Authority and to specify the territorial extent of their
powers. Where more than one Central Authority is appointed, the State must
designate the Central Authority to which applications may be addressed for
transmission to the appropriate Central Authority within that State.
[169]. The
Australian Treaties Library is an Australian Government initiative to
facilitate the involvement of the Parliament and wider community in the making
and implementation of Australian treaties via the public dissemination of
treaty information. The Australian Treaties Library is hosted on the
Australasian Legal Information Institute (AUSTLII) website and contains
information including lists of treaties tabled in Parliament, the Australian
Treaty Series (the text of treaties to which Australia is party), national
interest analyses prepared by the Government of proposed treaty actions, lists
of treaty action under negotiation or consideration as provided to the Parliament,
and other background information about treaty-making and implementation. See: AustLII,
‘About the
Australian treaties library’, AustLII website, n.d.
[170]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 54.
If subsection 67K(2) was not amended to refer State and Territory central
authorities under the Child Protection Convention, the express reference
in new subsection 67K(3) to State and Territory Central Authorities
under the Child Abduction Convention might result in subsection 67K(2)
being read down to exclude State and Territory Central Authorities under the Child
Protection Convention.
[171]. Subdivision
C of Division 8 of Part VII of the Family Law Act
relates to location and recovery of children.
[172]. Section
67Z of the Family
Law Act relates to the process of an interested person filing a notice
of child abuse with the court.
[173]. Section
67ZBA of the Family
Law Act relates to the process of an interested person in proceedings
under Part VII of the Act alleges circumstances of family violence.
[174]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 34.
[175]. FLA,
subsection 44(3).
[176]. FLA,
section 90K.
[177]. FLA,
section 90KA.
[178]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 39.
[179]. Subsection
44(6) of the FLA provides that a court may grant a party leave to apply
at the end of the standard application period if the court is satisfied that
hardship would be caused to the party or a child if leave were not granted or
in the case of an application for an order for the maintenance of a party, the
party’s circumstances were, at the end of the standard application period, such
that he or she would have been unable to support himself or herself without an income
tested pension, allowance or benefit.
[180]. Law
Council of Australia, op. cit., p. 7.
[181]. Ibid.
[182]. AGD,
op. cit., p. 9.
[183]. Senate
Legal and Constitutional Affairs, op. cit., 2017, p. 17.
[184]. Family Law Act,
section 10B.
[185]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 34.
[186]. FLA,
subsection 11C(1). There are two notes to this subsection which state,
respectively, that communications with family consultants are not confidential
(except in special circumstances referred to in subsection 38BD(3) of the Act);
and that subsection 11C(1) does not prevent things said or admissions made by
or in the company of family consultants from being admissible in proceedings
other than those under the FLA.
[187]. FLA,
subsection 11C(2).
[188]. FLA,
paragraph 11C(3)(a).
[189]. FLA,
paragraph 11C(3)(b).
[190]. FLA,
subsection 11C(3).
[191]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 36.
[192]. Ibid.
[193]. New
paragraph 11C(3)(a).
[194]. Subsection
138(1) of the Evidence Act provides that evidence obtained improperly or
in contravention of an Australian law, or in consequence of an impropriety or
of a contravention of Australian law is not to be admitted unless the
desirability of admitting the evidence outweighs the undesirability of
admitting evidence that has been obtained in the way in which the evidence was
obtained. Matters to which the court may turn its mind in making a
determination under this section are outlined in subsections 138(2) and (3) of
the Evidence Act.
[195]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 36.
The case of Hazan & Elias (2011) 255 FLR 338, [2011] FamCA
376 (24 May 2011) involved the respondent (Mr Elias, the father)
secretly recording his interview with a family consultant. The applicant
(Ms Hasan, the mother) argued that the court should exercise its discretion not
to admit the recording and a transcription of that recording into evidence on
the basis of the principles outlined in section 138 and paragraph 135(c) of the
Evidence Act
1995 in relation to evidence that was obtained illegally or improperly,
or if the probative value of the evidence sought to be admitted would be
substantially outweighed by the danger that it might cause or result in undue
waste of time. The father argued that existing section 11C of the FLA
displaced the application of the discretionary exclusionary provisions in
sections 138 and 135 of the Evidence Act, and required the court to
admit the evidence. Justice Watts, at [54]–[65], did not accept the father’s
interpretation, and read down section 11C of the FLA such that other
provisions of the FLA (and thereby provisions of the Evidence Act
referred to in those sections) applied to the consideration of whether they
should be admitted.
[196]. Subsection
44(3) of the FLA provides an application for orders relating to certain
maintenance and property matters shall not be instituted, except by leave of
the court or with the consent of both parties, after the expiration of 12
months after either the date on which a divorce took effect or the date of the
making of the decree of nullity of marriage. Under this subsection, the court
may grant leave at any time, even if the proceedings have already been
instituted.
[197]. FLA,
subsection 44(3A).
[198]. FLA,
subsection 44(2).
[199]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 38.
[200]. Ibid.,
p. 40.
[201]. Ibid.
[202]. AGD,
Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Family Law Amendment (Financial Agreements and Other Measures) Bill
2015, p. 13.
[203]. Ibid.,
pp. 13–14.
[204]. See:
Senate Legal and Constitutional Affairs Committee, Official
committee Hansard, 12 February 2016, pp. 1–8 (per Strickland J, who
appeared in a panel with members of the Magistrates’ Courts of Victoria and
South Australia). The Family Court did not make a written submission to the
inquiry.
[205]. Bryant,
op. cit., pp. 1–2.
[206]. Senate
Legal and Constitutional Affairs Committee, op. cit., p. 7.
[207]. Funding
measures include an additional $10.7 million over four years for additional
family consultants. See: G Brandis (Attorney-General), Transforming
the family law system, media release, 9 May 2017; and Australian
Government, ‘Part
2: expense measures’, Budget measures: budget paper no. 2: 2017–18, op.
cit., p. 66.
[208]. Brandis,
op. cit.; and Budget measures: budget paper no. 2, op. cit., p. 69 in
which $12.7 million over four years has been allocated to this measure. See
further: L Campbell, ‘Parenting
management hearings’, Budget review 2017–18, Research paper series, 2016–17,
Parliamentary Library, Canberra, May 2017; and Senate Legal and Constitutional
Affairs Committee, Official
committee Hansard, Senate Estimates, 24 May 2017, p. 36, at which the
Attorney-General described the intention of the parenting management hearings
trial to ‘triage the system’ and stated that ‘we propose to have registrars
conduct parenting management hearings’. While the details of the parenting
management hearings program are yet to be announced, these remarks may
potentially indicate an intention to integrate some aspects of Chief Justice
Bryant’s triaging proposal into parenting management hearings.
[209]. While
subsection 13(1) of the Acts Interpretation Act provides that
subheadings are part of the provisions of an Act, and may therefore be utilised
to construe the operative provisions, the relevant subheadings to section 117
of the FLA appear to be consistent with the text of the substantive
subsections to which they relate. The statement at p. 42 of the Explanatory
Memorandum, that the proposed subheadings are ‘simply intended as an editorial
change’ that does not affect the operation or meaning of the operative
provisions, appears to be a fair description of the legal effect of items
27–29.
[210]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill, p. 42.
[211]. Ibid.
[212]. Ibid.,
p. 43.
[213]. FLA,
subsection 117C(1) (proceedings in respect of which the prohibition in
subsection 117C(2) upon disclosures of settlement offers and terms applies).
[214]. FLA,
subsection 117(2)(discretion in relation to costs orders) and paragraph
117(2A)(f) (consideration of offer to settle).
[215]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, pp. 43
and 44.
[216]. This
is subsection 117C(3) which provides that a judge will not be disqualified from
hearing proceedings merely because a party has disclosed a settlement offer in
contravention of the existing prohibition in subsection 117C(2). As this aspect
of the prohibition is to be removed by item 32, subsection 117(3) will
become spent.
[217]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, pp.
43–44.
[218]. Ibid.,
p. 44.
[219]. Ibid.,
p. 47.
[220]. Schedule
6, item 8, which inserts new subsection 21(2A). See also: Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, pp.
36–37.
[221]. Schedule
6, item 10, which repeals subsection 36(2). See also: Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017,
p. 37.
[222]. Schedule
6, item 11, which inserts new section 38Z. See also: Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, pp. 37–38.
[223]. Schedule
6, items 13, 14 and 16. See also: Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 38.
[224]. Schedule
6, item 24, amendment to the note to subsection 69ZH(2). See also: Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 41.
[225]. Schedule
6, item 25, which repeals section 116C. See also: Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 41.
[226]. Schedule
6, item 53, which inserts new paragraph 12F(1)(c) that will
require the Principal Executive Officer to provide a person with documents
containing the information prescribed by regulations made under section 12D
(relating to family counselling). This is in addition to existing requirements
in section 12F to provide persons with documents containing information about
non-court based family services (prescribed in section 12B) and reconciliation
(prescribed in section 12C). See also: Family Law
Regulations 1984, regulation 8B (information about family counselling
services prescribed for the purposes of section 12D of the FLA); and Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill, p. 54.
[227]. Part
VIIIB relates to superannuation interests and allows certain payments in
respect of superannuation interests to be allocated between the parties to a
marriage or the parties to a de facto relationship either by agreement between
the parties or by court order (section 90MA).
[228]. New
York Convention, [1975] ATS 25, op. cit. The New York Convention
is widely considered to be a key international law instrument governing
international commercial arbitration. See further: AJ van den Berg, ‘The New York Convention’, New York
Arbitration website. (The author of this website is the immediate past president
of the International
Council for Commercial Arbitration, which is a non-government organisation
devoted to promoting the use and improving the processes of arbitration,
conciliation and other forms of international commercial dispute resolution. It
produces authoritative dispute resolution publications, and promotes the
harmonization of arbitration and conciliation rules, laws, procedures and
standards.)
[229]. The
UNCITRAL Model Law on International Commercial Arbitration is designed
to assist States in reforming and modernizing their laws on arbitral procedure
so as to take into account the particular features and needs of international
commercial arbitration. It reflects worldwide consensus on key aspects of
international arbitration practice having been accepted by States of all
regions and the different legal or economic systems of the world. See further:
UNCITRAL, Model
Law on International Commercial Arbitration, UNCITRAL website. Division
2 of Part III of the IAA gives the Model Law force under Australian law
(see especially section 16). The Model Law is reproduced in Schedule 2 to the IAA.
[230]. Items
1, 3–6, 8–10, 12 and 13–17 are variously consequential amendments, minor
amendments to modernise drafting style, or application provisions relevant to items
2, 4 7 and 11.
[231]. The
term ‘foreign award’ is defined in section 4 as ‘an arbitral award made, in
pursuance of an arbitration agreement, in a country other than Australia, being
an arbitral award in relation to which the Convention applies’. The component
terms ‘arbitral award’ and ‘arbitration agreement’ are defined by reference to
the New York Convention. Note that Article I(2) of the New
York Convention defines arbitral awards as including awards made by
arbitrators appointed for each case, and those made by permanent arbitral
bodies to which the parties have submitted. (Article I(1) further
provides for the application of the New York Convention to arbitral
awards made in a State other than the State in which the recognition and
enforcement of an award is sought, and to arbitral awards that are not
considered as domestic awards in the State in which their recognition and
enforcement is sought.) Article II(1) of the New York Convention provides
the meaning of an 'arbitration agreement' for the purpose of the IAA,
covering a written contract or agreement containing an arbitral clause, which
is either signed by all parties or is contained in an exchange of letters or
telegrams.
[232]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill, pp. 59–60.
[233]. Ibid.
[234]. Ibid.,
p. 59, citing the case of Dallah Real Estate and Tourism Holding Company
(Appellant) v The Ministry of Religious Affairs, Government of Pakistan (2011)
1 AC 763, [2010]
UKSC 46.
[235]. Ibid.,
p. 60.
[236]. Ibid.
[237]. Ibid.,
p. 61.
[238]. Senate
Scrutiny of Bills Committee, Scrutiny digest, 5, 2017, op. cit., p. 72.
[239]. Ibid.,
p. 73; and Senate Legal and Constitutional Affairs Committee, op. cit., p. 25.
[240]. Ibid.
[241]. Law
Council of Australia, op. cit., p. 8.
[242]. Senate
Legal and Constitutional Affairs Committee, op. cit., pp. 18 and 24.
[243]. TCL
Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia
(2013) 251 CLR 533, [2013] HCA 5,
13 March 2013.
[244]. Sections
23C–23G prohibit the disclosure of confidential information in relation to an
arbitration, subject to limited exceptions. The limited exceptions include
disclosures in the following circumstances: with consent of the parties; to a
professional or other adviser of a party; for the establishment or protection
of legal rights of a party or third party; for the purpose of the IAA or
UNCITRAL Model Law; in accordance with an order of a court or tribunal;
or as authorised or required by another law or by another competent regulatory
body (sections 23C and 23D). An arbitral tribunal may also make an order
allowing a party to make a disclosure in other circumstances (section 23E).
Further, a court may make an order prohibiting or permitting disclosure in
certain circumstances, generally if it is satisfied that the relevant order is
supported by the balance of public interest considerations in either preserving
confidentiality or allowing the disclosure to be made (sections 23F and 23G).
[245]. Convention
on Transparency, done at Mauritius on 10 December 2014. (The Convention
opened for signature on 17 March 2015 and has not yet entered into force.
Article 9(1) provides that it will enter into force six months after the
deposit of the third instrument of ratification, acceptance, approval or
accession. According to the UNCITRAL website at 30 March 2017, two countries,
Canada and Mauritius, had deposited instruments. The UNCITRAL website further
indicates that 16 other countries had signed the Convention as at 30 March
2017. Australia is not among them. See: UNCITRAL, ‘Status:
United Nations Convention on Transparency in Treaty-Based Investor-State
Arbitration (New York, 2014)’, UNICITRAL website.)
[246]. The
UNCITRAL Arbitration Rules provide a comprehensive set of procedural
rules upon which parties may agree for the conduct of arbitral proceedings
arising out of their commercial relationship and are widely used in ad hoc
arbitrations as well as administered arbitrations. The Arbitration
Rules cover all aspects of the arbitral process, providing a model
arbitration clause, setting out procedural rules regarding the appointment of
arbitrators and the conduct of arbitral proceedings, and establishing rules in
relation to the form, effect and interpretation of the award. See: UNCITRAL, ‘UNCITRAL
arbitration rules’, UNCITRAL website, 19 Jun 2017.
[247]. UNCITRAL,
‘UNCITRAL
rules on transparency in treaty-based investor-state arbitration (effective
date: 1 April 2014)’, UNCITRAL website.
[248]. Ibid.,
p. 62.
[249]. Law
Council of Australia, op. cit., p. 9.
[250]. Subsection
27(1).
[251]. Subsection
27(2).
[252]. Paragraphs
27(2)(b) and (c) and subsection 27(3). (Broadly, the taxation of costs refers
to a process for the assessment of costs utilised in civil judicial matters
under courts’ civil procedure rules. The ‘party and party’ and ‘solicitor and
client’ bases for assessing costs reflect different types of expenses incurred
in a matter. ‘Party and party’ costs, sometimes known as costs on the ordinary
or standard basis, are those costs that the successful party may recover from
the unsuccessful party to compensate the successful party for having to pursue
or defend his or her rights in court. ‘Solicitor and client’ costs cover the
cost of a party’s lawyer’s services in conducting the case, and disbursements
such as court fees and barristers fees if counsel is briefed.)
[253]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill, p. 62.
[254]. Law
Council of Australia, op. cit., pp. 9–10.
[255]. Ibid.
[256]. Senate
Legal and Constitutional Affairs Committee, op. cit., p. 25.
[257]. A
‘compilation’ of legislation is defined in section 4 of the Legislation Act
to mean a document showing the text of an Act or instrument as amended or
modified by an Act or instrument and in force on a specified day; or, in the
case of uncommenced amendments or modifications, showing the text of an Act or
instrument as would be amended or modified by an Act or instrument and in force
on a specified day. Part 2 of Chapter 2 of the Legislation Act sets out
requirements for the registration of compilations on the Federal Register of
Legislation. In general, First Parliamentary Counsel must register a
compilation after a registered Act or instrument is expressly amended, by
another Act or instrument and in some other circumstances (for example, if a
provision of a disallowable legislative instrument is disallowed, or if a
provision of an Act or instrument is repealed, lapses, expires or otherwise
ceases to be in force under another Act or instrument). Schedule 8 to
the Bill proposes to amend the ‘other circumstances’ provided for in Part 2 of
Chapter 2.
[258]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill, p. 63.
[259]. Ibid.
[260]. Schedule
9, items 1–3, 33 and 42 (amendments to sections 5, 13, 14, 42 and the
Schedule to the Marriage Act).
[261]. Schedule
9, items 4 and 5 (amendments to sections 23B of the Marriage Act).
See also, Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, pp.
65–66; and ALRC, Equality,
capacity and disability in Commonwealth laws: final report, ALRC Report
124, ALRC, Sydney, August 2014, especially recommendation 3-1 and Chapter 3.
[262]. Schedule
9, items 7–9 and 25–29 (amendments to sections 39B and 39G of the Marriage
Act).
[263]. Schedule
9, item 6 (amendments to section 39 of the Marriage Act).
[264]. Schedule
9, items 10–17 (amendments to section 39FA of the Marriage Act).
[265]. Schedule
9, items 18–19 (amendments to section 39FB of the Marriage Act).
(See also items 30–31, which remove a similar anomaly in the requirements in
section 39I for the Registrar to notify a person of their review rights in
relation to registration decisions. Currently, the duty to provide notification
of review rights also extends to decisions to impose certain disciplinary
measures, notwithstanding that no right of review exists).
[266]. Schedule
9, items 20–22, 32 (amendments to section 39FB and 39J of the Marriage
Act).
[267]. Schedule
9, items 23–24 (amendments to section 39G of the Marriage Act).
[268]. Schedule
9, items 34–35 and 40–41 (new sections 60–64 and amendments to
section 116 of the Marriage Act). See also: Explanatory Memorandum,
Civil Law and Justice Legislation Amendment Bill 2017, pp. 71–72 and 73.
[269]. Schedule
9, items 36–39 (amendments to section 115 of the Marriage Act).
[270]. Ibid.,
p. 14.
[271]. Senate
Legal and Constitutional Affairs Committee, op. cit., pp. 21 and 25.
[272]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017,
p. 73.
[273]. Schedule
6, item 42, proposed item 1, table item 2, column 3.
[274]. Note
that section 64B of the FLA provides that a parenting order may deal
with a number of matters, including the allocation of parental responsibility.
Section 61B of the FLA defines ‘parental responsibility’ as ‘all the
duties, powers and responsibilities and authority which, by law, parents have
in relation to children’).
[275]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 73.
[276]. Under
section 15AB of the Acts Interpretation Act 1901, this commentary would
be relevant to the interpretation of the new Schedule to the Marriage Act
to the extent that a court sought to confirm the ordinary meaning of implicit
parental responsibility, or if it considered that the meaning of this concept
was ambiguous.
[277]. Sex Discrimination
Regulations 1984, regulation 3.
[278]. Explanatory
Memorandum, Civil Law and Justice Legislation Amendment Bill 2017, p. 75. See
also: Department of Defence, ‘Women in defence’,
Department of Defence website; and Department of Defence, ‘Removal of gender
restrictions on Australian Defence Force combat role employment categories: implementation
plan’, Department of Defence website, August 2013.
[279]. Brandis,
op. cit., p. 76. See further: Convention
on the Elimination of All Forms of Discrimination Against Women (CEDAW)
[1983] ATS 9, done in New York on 18 December 1979 (entered into force
generally 8 September 1981 and for Australia 27 August 1983). Australia
ratified CEDAW subject to a reservation that states: ‘The Government of
Australia advises that it does not accept the application of the Convention in
so far as it would require alteration of Defence force policy which excludes
women from combat and combat-related duties. The Government of Australia is
reviewing this policy so as to more closely define “combat” and “combat-related”
duties. On 30 August 2000, Australia withdrew this reservation in
part and deposited a new reservation stating that ‘The Government of Australia
advises that it does not accept the application of the Convention in so far as
it would require alteration of Defence Force policy which excludes women from
combat duties’. See further the National Interest Analysis on the proposed
treaty action to withdraw the reservation: Australian Government, Withdrawal
of Australia's reservation under the Convention on the Elimination of all Forms
of Discrimination against Women (CEDAW) in relation to the exclusion of women
from combat duties, [2017] ATNIA
10. At the time of writing this Bills Digest, the Joint Standing Committee
on Treaties (JSCOT) was conducting an inquiry into the proposed treaty action
to withdraw the reservation. See: JSCOT, ‘Women
in combat duties: reservation withdrawal’, inquiry homepage.
[280]. Senate
Legal and Constitutional Affairs Committee, op. cit., recommendations 2–3.
[281]. Senate
Standing Committee on Legal and Constitutional Affairs, Family
Law Amendment (Financial Agreements and Other Measures) Bill 2015, February
2016, pp. 26–27.
[282]. Senate
Legal and Constitutional Affairs References Committee, International
parental child abduction to and from Australia, The Senate, Canberra,
October 2011, p. 62.
[283]. Budget
measures: budget paper no. 2, op. cit., p. 66.
[284]. Bryant,
op. cit., p. 1; and Senate Legal and Constitutional Affairs Committee, op. cit.,
p. 7.
[285]. Budget
measures: budget paper no. 2, op. cit., p. 69; and Campbell, op. cit.
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