Civil Law and Justice Legislation Amendment Bill 2017

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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