Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
CIVIL LAW AND JUSTICE LEGISLATION AMENDMENT BILL 2017
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, Senator the Honourable George Brandis QC)
AMENDMENTS TO THE CIVIL LAW AND JUSTICE LEGISLATION
AMENDMENT BILL 2017
(Government)
GENERAL OUTLINE
The purpose of the Civil Law and Justice Legislation Amendment Bill ('the Bill') is to make
minor and technical amendments to civil justice legislation.
The amendments proposed to be moved by the Government to the Bill would implement
recommendations made by the Senate Standing Committee for the Scrutiny of Bills in
Scrutiny Digest No.5 of 2017 and by the Senate Standing Committee on Legal and
Constitutional Affairs in their report on the Bill.
The amendments would also make an unrelated technical amendment to the Bill.
FINANCIAL IMPACT
There is nil financial impact associated with the Bill or these amendments.
2
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Civil Law and Justice Legislation Amendment Bill 2017
The amendments to the Bill are compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011. To the extent that they are incompatible with these rights,
the limitations are necessary and appropriate.
Human rights implications
The Bill engages the following rights:
The right to life under Article 6 of the International Covenant on Civil and Political
Rights (ICCPR)
The right to not be subject to arbitrary arrest or detention under Article 9 of the
ICCPR
The right of all persons to be equal before courts and tribunals under Article 14 of the
ICCPR
The right of every child to such measures of protection as are required by his status
as a minor, on the part of his family, society and the State under Article 24(1) of the
ICCPR
The requirement on State Parties to take all appropriate measures to protect the child
from all forms of physical or mental violence, injury or abuse, neglect or negligent
treatment, maltreatment or exploitation, including sexual abuse, while in the care of
parent(s), legal guardian(s) or any other person who has the care of the child under
Article 19(1) of the Convention on the Rights of the Child (CRC), and
The elimination of discrimination against women required by the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW).
Amendments 1 and 2: Bankruptcy
These amendments strengthen the rights of the bankruptcy trustee to be represented in family
law proceedings relating to property which is vested in the trustee. This facilitates the just and
fair administration of the estate on behalf of the creditors and maintains the rights of the
parties to the proceedings. To the extent that this Bill engages the rights under Article 14 of
the ICCPR, for all persons to be equal before the courts, it does so by enhancing the
protection of those rights.
Amendment 3 Removal of family consultant measure
This amendment removes the proposed measure that would have limited the family law
courts to only appointing family consultants to supervise final orders in exceptional
circumstances. As the original measure did not engage any human rights, its removal
similarly engages no human rights.
3
Amendments 4 and 5: Making arrests
These amendments narrow the list of people who can be authorised to use force and utilise
entry and search powers when exercising arrest powers under the Family Law Act 1975. This
is true both in comparison to the existing Family Law Act, and in comparison to the original
text of the Bill.
To the extent that this Bill engages such rights as the right to not be subject to arbitrary arrest
or detention under Article 9 of the ICCPR and the right to life under Article 6 of the ICCPR,
it does so by enhancing the protection of those rights.
Amendments 6-11: Fleeing family violence
These amendments enhance protections for women and children who are, or may be, subject
to family violence and abuse. The rights for the child/ren are contained in Article 24(1) of the
ICCPR and Article 19(1) of the CRC. Article 24(1) of the ICCPR provides for protection of
the child as required by his/her status as a minor. Article 19(1) of the CRC requires States to
'take all appropriate legislative, administrative, social and educational measures to protect the
child from all forms of physical or mental violence, injury or abuse, neglect or negligent
treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s),
legal guardian(s) or any other person'.
These amendments also promote the elimination of discrimination against women required
by CEDAW. CEDAW provides for key principles of equality which broadly cover many
aspects of women's lives, including political participation, health, education, employment,
marriage, family relations and equality before the law.
In particular:
Article 2 urges parties to CEDAW to work towards eradicating discrimination against
women, including by introducing new laws or policies, changing existing
discriminatory laws and providing sanctions for discrimination where appropriate, and
Article 3 requires parties to promote actively women's full development and
advancement, so they can enjoy human rights and fundamental freedoms on the same
basis as men.
Discrimination against women includes gender-based violence--that is, violence that is
directed against a woman because she is a woman or that affects women disproportionately.
Although family violence is perpetrated by both men and women, and the Family Law Act is
accordingly gender-neutral, the majority of those who experience family violence are women.
These amendments would introduce a defence for both the new and existing offences of
international parental child abduction. This defence would be available in circumstances
where the purported abduction occurred in the context of fleeing family violence, where the
removal or retention of the child overseas is a reasonable response to an actual fear of family
violence. By providing this defence, the amendment would ensure that behaviour that is a
reasonable response to family violence is not criminalised.
4
Amendment 12: Expiry and lapsing of legislation
This is a technical amendment with no substantive effect. It does not engage any human
rights.
5
NOTES ON AMENDMENTS
Amendments 1 and 2: Bankruptcy
1. Together, the amendments related to bankruptcy (amendments 1 and 2) are intended
to implement recommendation 1 of the Senate Standing Committee on Legal and
Constitutional Affairs (the Committee) report on the Bill (the Report).
2. The Committee recommended that the Bill be amended to reflect a recommendation
made by the Law Council of Australia in its submission to the Committee. The purpose of the
Law Council's recommendation was to overcome the limitation on family law jurisdiction
identified by the decision of the Full Court of the Family Court of Australia in Official
Trustee in Bankruptcy & Galanis and Anor [2017] FamCAFC 20. In that case, the Full Court
found that the wording of paragraph (cb) of the definition of 'matrimonial cause' in
subsection 4(1) of the Family Law Act 1975 (the Act) meant that the court did not have
jurisdiction to hear an application brought by a bankruptcy trustee relating to property vested
with them once the party to a marriage or de facto relationship became a discharged bankrupt.
3. Currently, subsequent to the Family Court's decision, the Act only provides
jurisdiction for the Family Court of Australia to allow bankruptcy trustees to initiate and join
proceedings involving the property of a bankrupt when the person is an undischarged
bankrupt.
4. It is inconsistent for there to be a gap in the family law courts' jurisdiction when the
court could exercise jurisdiction over that property in all other relevant circumstances.
5. This issue also arises in a de facto financial cause due to the similar wording found in
paragraph (c) of the definition of de facto financial cause in subsection 4(1) of the Act.
6. These amendments would ensure jurisdiction under the Act for such cases involving
trustees, regardless of whether the person was the party to a marriage or a de facto
relationship.
7. Amendment 1 would insert a definition of bankruptcy in subsection 4(1) of the Act.
This definition would direct users of the legislation to proposed subsection 4(6), but would
not otherwise provide definitional guidance.
8. Amendment 2 would, for the purposes of the proposed definition of bankrupt in
subsection 4(1), provide that a reference to a bankrupt, where that party is a party to a
marriage or de facto relationship, includes a reference to a person:
who has been discharged from bankruptcy; and
whose property remains vested in the bankruptcy trustee under the
Bankruptcy Act 1966.
9. This is intended to ensure that in cases where a person is a discharged bankrupt, but
the relevant property is still vested in the bankruptcy trustee, the court can join the
bankruptcy trustee as a party to the proceedings or hear applications made by the trustee.
10. The purpose of including the clause 'being a party to a marriage or de facto
relationship' is to identify that subsection 4(6) only applies where the term 'bankrupt' refers
6
to a person in the context of that person as a party to a relationship. It does not apply, for
example, for the purposes of subsection 26L(2), as that provision relates to the termination of
a Judicial Registrar should the Registrar become a bankrupt, not to a party to a relationship.
Provisions where subsection 4(6) would not apply include:
subsection 26L(2)
paragraph 38K(2)(a)
section 79H
subsection 90SQ(1)
subsection 114LB(2), and
subsection 115(6B).
11. The provision that the term bankrupt applies to a discharged bankrupt whose property
remains vested in the bankruptcy trustee is intended to ensure that the new definition of
bankrupt does not include all persons who have ever been bankrupt. For example, it is not
intended that anyone who has ever been a bankrupt should be required to give notice of
proceedings to the trustee under subsection 79G(1) and subsection 90SP(1) of the Act.
12. It should be noted that subsection 4(6) is inclusive of the ordinary definition of
bankrupt. It is not intended that it would be interpreted to limit the definition of bankrupt.
13. Amendment 2 would also insert a note after proposed subsection 4(6), to note that the
Act might refer to a 'bankrupt' or a 'bankrupt party'. This is intended to ensure the reader
understands that proposed subsection 4(6) would apply in either case.
14. Amendment 2 would also insert an application clause that would provide that
proposed subsection 4(6) applies to proceedings that commence before, on, or after the
commencement of the provision. A bankruptcy trustee should be able to join proceedings that
have already commenced to ensure consistency in decisions relating to family law
proceedings dealing with property vested in a trustee. To exclude trustees would significantly
diminish their powers to properly administer the estate of a bankrupt (whether or not the
bankrupt is discharged) in accordance with trustee obligations under bankruptcy law.
Amendment 3: Removal of family consultant measure
15. Amendment 3 would omit items 19 and 20 from Schedule 6 to the Bill. These
amendments were intended to limit the family law courts to only appoint family consultants
to supervise final parenting orders in exceptional circumstances. By omitting these items, the
status quo, that the family law courts can appoint family consultants to supervise final
parenting orders at their discretion, is maintained.
16. In the submission of Chief Justice Diana Bryant AO QC of the Family Court of
Australia to the Senate Standing Committee on Legal and Constitutional Affairs report on the
Bill, the Chief Justice indicated that although she had previously agreed to the amendments
that would impose the exceptional circumstance criteria, subsequent circumstances had led
her to reconsider that position, and that those circumstances had persuaded her to no longer
7
support the amendment. In deference to the Chief Justice, this amendment would omit that
measure from the Bill.
Amendments 4 and 5: Making arrests
17. Together, the amendments related to making arrests are intended to implement the
recommendation at paragraph 2.15 of Scrutiny Digest No.5 of 2017 and implement, in part,
recommendation 4 of the Report. Paragraph 2.15 of Scrutiny Digest No.5 of 2017
recommended that proposed paragraph 122A(1)(i) be amended to ensure that the power to
use reasonable force and the powers of entry and search in proposed sections 122A and
122AA be confined to ABF officers rather than all APS employees in the Department of
Immigration and Border Protection. Recommendation 4 of the Report recommended that the
Bill be amended to limit arrest powers and use of force so that they apply only to employees
of the Australian Border Force that have received appropriate training. These amendments
(amendments 4 and 5) would, consistent with those recommendations, narrow the potential
arresters who can be authorised to use powers under proposed sections 122A and 122AA.
18. As currently drafted, proposed paragraph 122A(1)(i) would allow any person who is
an APS employee in the Department administered by the Minister administering the
Australian Border Force Act 2015 (ABF Act) to be authorised as an arrester. Under the
present Administrative Arrangement Orders, this would mean that any employee of the
Department of Immigration and Border Protection (DIBP) could be authorised for the
purposes of sections 122A and 122AA. Proposed paragraph 122A(1)(h) provides that the
Australian Border Force Commissioner (the Commissioner) can be authorised as an arrester
for the purposes of sections 122A and 122AA.
19. Amendment 4 would omit proposed paragraph 122A(1)(h) of the Bill. The intention
of providing ABF officers with powers under 122A and 122AA is to ensure that relevant
officers can utilise those powers where necessary at the border. It is unlikely that the
Commissioner would be personally involved in exercising arrest powers, so there is no need
for those powers to vest in the Commissioner.
20. The Commissioner also has broad delegation powers under section 25 of the ABF
Act. These include the power under subsection 25(1) to delegate, in writing, any of the
Commissioner's functions or powers under a law of the Commonwealth to certain specified
persons. This list of persons is broader that the list of arresters under section 122A. While
specific powers can be deliberately excluded from the list of delegable powers (see, for
example, subsection 25(2) of the ABF Act), because there is no strong policy rationale for the
Commissioner to be included as person who can be authorised, the amendment would instead
omit the Commissioner from the list of arresters.
21. Amendment 5 would add 'and who is in the Australian Border Force (within the
meaning of that Act)' to the end of paragraph 122A(1)(i). This wording is similar to wording
used to identify officers of the Australian Border Force in the ABF Act (see, for example,
paragraph 25(1)(b) of that Act). As a result of this amendment, the only officers of DIBP who
could be authorised arresters for the purpose of section 122A and 122AA would be those who
were members of the Australian Border Force.
22. Recommendation 4 of the Report and paragraph 2.15 of Scrutiny Digest No.5 of 2017
further recommended that the powers in sections 122A and 122AA should only be available
to ABF officers when those officers have received appropriate training. Consistent with
8
existing arrest powers that are available to ABF officers in the ABF Act, the Migration
Act 1958 and the Customs Act 1901, ensuring that an ABF officer has sufficient training is a
responsibility that is most appropriately handled as an administrative matter.
23. Additionally, legislatively requiring specific training requirements for an ABF officer
to be authorised as an arrester for the purposes of sections 122A and 122AA would be
inconsistent with the requirements on other arresters specified in paragraphs 122A(1)(a)-(g),
as no such training requirement applies to those groups.
Amendments 6-11: Fleeing family violence
24. Amendments 6-11 are intended to address recommendation 2 of the Report. Together,
they introduce new defences of fleeing from family violence that would apply to the existing
and proposed offences related to international parental child abduction. Specifically, the
offences that the new defences would apply to are:
existing 65Y
proposed 65YA
existing 65Z, and
proposed 65ZAA.
In each of these cases, the defence and related amendments are substantially similar.
25. The proposed defence of fleeing from family violence is modelled on the defence of
self-defence under section 10.4 of the Criminal Code. Similar to self-defence, the proposed
defence includes both a subjective and an objective element.
26. The defence would be satisfied if it was reasonable to have carried out the conduct
constituting one of the offences (of removing or retaining a child overseas) (the objective
element) in response to the defendant's own perceptions that it was necessary to take the
action they did to prevent family violence (the subjective element).
27. Amendment 6 would add a defence of fleeing family violence that would apply to the
existing offence under section 65Y of unlawfully taking or sending a child from Australia to
a place outside Australia in cases where certain parenting orders have been made.
28. Amendment 7 is a technical amendment consequential to the proposed insertion of
new subsection 65YA(2) by amendment 8. Amendment 7 assigns a subsection number to the
existing text of section 65ZYA to accommodate the insertion of the new subsection by
amendment 8.
29. Amendment 8 would add a defence of fleeing family violence that would apply to the
proposed offence under proposed section 65YA of unlawfully retaining a child outside
Australia in cases where certain parenting orders have been made.
30. Amendment 9 would add a defence of fleeing family violence that would apply to the
existing offence under section 65Z of unlawfully taking or sending a child from Australia to a
place outside Australia in cases where proceedings for parenting orders are pending.
9
31. Amendment 10 is a technical amendment consequential to the proposed insertion of
new subsection 65ZAA(2) by amendment 10. Amendment 10 assigns a subsection number to
the existing text of section 65ZAA to accommodate the insertion of the new subsection by
amendment 11.
32. Amendment 11 would add a defence of fleeing family violence that would apply to
the proposed offence under proposed section 65ZAA of unlawfully retaining a child outside
Australia in cases where proceedings for parenting orders are pending.
Amendment 12--Expiry and lapsing of legislation
33. Amendment 12 would amend the heading of subsection 15T(7) of the Legislation
Act 2003 to remove references to the 'lapse or expiry' of an Act or instrument. This is a
technical amendment to better reflect the proposed amendment to the text of
paragraph 15T(7)(a) by item 5 of Schedule 8 to the Bill. The amendment is not intended to
have an effect beyond that amendment.
10
Index]
[Search]
[Download]
[Bill]
[Help]