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2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
CIVIL LAW AND JUSTICE LEGISLATION AMENDMENT BILL 2017
SUPPLEMENTARY EXPLANATORY MEMORANDUM RELATING TO
AMENDMENT SHEET GJ134 AS REVISED
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, the Honourable Christian Porter MP)
AMENDMENTS TO THE CIVIL LAW AND JUSTICE LEGISLATION
AMENDMENT BILL 2017
(Government)
GENERAL OUTLINE
1. The purpose of the Civil Law and Justice Legislation Amendment Bill ('the Bill') is
to make minor and technical amendments to civil justice legislation.
2. 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 Legal and
Constitutional Affairs Legislation Committee in their report on the Bill, and
ensure all of the international child abduction offences are drafted consistent with the
Guide to Framing Commonwealth Criminal Offences; that the exception of fleeing
family violence applies to all of such offences; to confirm that subsequent written
consent (authenticated as prescribed) could regularise the status of the child overseas,
thereby removing the possibility of a criminal charge of retaining a child outside
Australia where parents have subsequently agreed that the child can remain overseas.
FINANCIAL IMPACT
3. There is nil financial impact associated with the Bill or these amendments.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Civil Law and Justice Legislation Amendment Bill 2017
4. 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
5. 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 prohibition on retrospective criminal laws under Article 15 of the ICCPR
the right of every child to such measures of protection as are required by their status
as a minor, on the part of their 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
6. 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
7. 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.
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Amendments 4 and 5: Making arrests
8. 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.
9. To the extent that this amendment engages such rights, such 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, 10, 14: Ensuring consistency with the Guide to Framing Commonwealth
Criminal Offences:
10. These amendments amend sections 65Y, s65Z, 65ZA and s65ZB of the Family Law
Act to be consistent with the Guide to Framing Commonwealth Criminal Offences,
Infringement Notices and Enforcement Powers. The main amendment removes the exception
to the offence where there is consent or a court order, and inserts this as an element of the
offence. The result being that the prosecution would need to prove that there was a lack of
consent or court orders, rather than the defendant. This amendment is consistent with the
right to a fair trial under Article 14 of the ICCPR.
Amendments 6, 9, 10, 11 and 13: Exception of fleeing family violence
11. These amendments also add the new exception of fleeing from family violence to
sections 65Y, 65YA, 65Z, 65ZAA of the Family Law Act. These amendments enhance
protections for women and children who are, or may be, subject to family violence and abuse.
The rights for child/ren are contained in Article 24 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 protection 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.'
12. 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.
13. In particular:
Article 2 urges parties to CEDAW to work towards eradicating discrimination against
women required by CEDAW, including by introducing new laws or policies,
changing existing discriminatory laws and providing sanctions for discrimination
where appropriate.
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.
14. Discrimination against women includes gender-based violence - that is, violence
directed against a woman because she is a woman or that affects women disproportionately.
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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.
15. 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.
Amendment 7: Fleeing family violence
16. This amendment is a technical amendment to insert subsection (1) into proposed
section 65YA of the Family Law Act so that the fleeing from family violence exception
would become subsection (2). It does not engage any international obligations.
Amendments 8 and 12: Consent or compliance with a court order
17. These amendments confirm that subsequent written consent (authenticated as
prescribed) or court orders can regularise a child's status overseas, preventing the possibility
of criminal charges. These amendments confirm that plans can change after the child/ren
departs Australia. Provided that arrangements are authorised - by subsequent court orders or
written consent (authenticated as prescribed) - the actions will not be subject to the offence
provision. These proposed amendments engage the right to not be subject to arbitrary arrest
or detention under Article 9 of the ICCPR.
Amendment 15: Application provisions
18. This amendment will allow amended provisions at sections 65Y and 65Z of the
Family Law Act to apply to the taking or sending of a child from Australia after the
commencement of the Division. This means that both the proposed offences and the defences
available under the proposed amended provisions will only apply to children taken or sent
from Australia after commencement. Therefore this amendment engages positively with the
prohibition on retrospective criminal laws under to Article 15 of the ICCPR. The existing
criminal offences under existing sections 65Y and 65Z of the Family Law Act will continue
to apply to children taken or sent from Australia prior to the commencement of the Division.
Amendment 16: Saving of regulations
19. This proposed amendment is a savings provision that would protect regulation 13 of
the Family Law Regulations 1984, which was made for the purposes of a number of
provisions that will be amended by this Bill. This will mean that authorised arrangements, for
which consent has been authenticated in writing as required by regulation 13, will not be
subject to the new, and amended, offence provisions.
20. This ensures that parents have a means of securing consent to protect behaviour that
would otherwise constitute the commission of an offence. This proposed amendment engages
the right to not be subject to arbitrary arrest or detention under Article 9 of the ICCPR.
Amendment 17: Expiry and lapsing of legislation
21. This is a technical amendment with no substantive effect. It does not engage any
human rights.
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NOTES ON AMENDMENTS
Schedule 6 -- Amendment of the Family Law Act 1975
Amendments 1 and 2: Schedule 6, item 1, page 14 (before line 7)
22. Together, the amendments related to bankruptcy (amendments 1 and 2) are intended
to implement recommendation 1 of the Senate Legal and Constitutional Affairs Legislation
Committee (the Committee) report on the Bill (the Report).
23. 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
30. 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.
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31. 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
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).
32. 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.
33. 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.
34. Amendment 2 would also insert a note after proposed subsection 4(6), to clarify 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.
35. 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: Schedule 6, items 19 and 20, page 18 (lines 5 to 12)
36. Amendment 3 would omit items 19 and 20 from Schedule 6 to the Bill. These
amendments were intended to limit the ability of the family law courts to appoint family
consultants to supervise compliance with final parenting orders, to when there are 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.
37. In her submission to the Committee inquiry on the Bill, the then Chief Justice of the
Family Court of Australia, the Hon Diana Bryant AO QC, advised that although she had
requested this amendment that would impose the exceptional circumstance criteria,
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subsequent circumstances had led her to reconsider that position, and that those
circumstances had persuaded her to no longer support the amendment. In deference to the
former Chief Justice, this amendment would omit that measure from the Bill.
Amendments 4 and 5: Schedule 6, item 35, page 20 (lines 21 and 24)
38. 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.
39. 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 then Department of Immigration and Border
Protection (now the Department of Home Affairs). 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.
40. 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
Administrative Arrangement Orders, this would have meant that any employee of the
Department of Home Affairs could be authorised for the purposes of sections 122A and
122AA, and proposed paragraph 122A(1)(h) further provides that the ABF Commissioner
(the Commissioner) can be authorised as an arrester for the purposes of sections 122A and
122AA.
41. Amendment 4 would omit proposed paragraph 122A(1)(h). 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.
42. 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 and thereby remove the need for an
amendment to the ABF Act to prevent the delegation of such a power.
43. 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 ABF in the ABF Act (see, for example, paragraph 25(1)(b) of
the ABF Act). As a result of this amendment, the only officers of the Department of Home
8
Affairs who could be authorised arresters for the purpose of section 122A and 122AA would
be those who are members of the ABF.
44. 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
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.
45. 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 analagous requirement applies to those groups.
Amendment 6: Schedule 6, item 44, page 24 (lines 9 to 12)
46. The amendment would repeal existing 65Y of the Family Law Act and substitute
section 65Y to make it consistent with the new proposed offences of retaining a child
overseas at proposed sections 65YA and 65ZAA.
47. The amendment would remove the offence-specific defence that requires the
defendant to bear the evidential burden of proof that the removal of the child was done in
accordance with an order of a court or with the written consent of the other party/ies. Under
proposed substituted section 65Y, the prosecution would bear the burden of proof, i.e. to
prove that there is order of a court or written consent permitting the child to be taken or sent
overseas.
48. The details of the amendment are as follows:
First, the amendment would omit and substitute the heading to section 65Y. This
amendment is consequential to the insertion of section 65YA by Item 45 of
Schedule 6 of the Bill. The current title of section 65Y is "Obligations if certain
parenting orders have been made". After the insertion of section 65YA, the
current title would be misleading as section 65YA will also contain obligations
that apply if certain parenting orders have been made.
The new title substituted by this amendment would be "Obligations if certain
parenting orders have been made: taking or sending a child outside Australia".
This more specific title better clarifies the purpose and effect of section 65Y.
Second, the amendment would provide that a person commits an offence where:
o a parenting order to which Subdivision E of Division 6 of Part VII of the
Act applies is in force in relation to the child, and
o the child is taken or sent from Australia to a place outside Australia, by, on
behalf of, or at the request of, a party to the proceedings in which the
parenting order was made without the consent in writing (authenticated as
prescribed) of each person in whose favour the parenting order was made or
in accordance with the order of a court.
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Regulation 13 of the Family Law Regulations 1984 sets out the requirements for
the authentication of consent in writing for existing offence provisions in the Act
relating to international parental child abduction. The regulation requires that a
consent in writing must be authenticated by a person mentioned in section 8 of
the Statutory Declarations Act 1959 endorsing on the consent a statement that:
o the person is satisfied about the identity of the person signing the consent;
and
o the consent was signed in the person's presence.
It is intended that, following the enactment of these amendments, regulation 13
would also be amended to refer to the new subparagraph 65Y(c)(i).
Third, the amendment would also insert a note to substituted section 65Y stating
that the ancillary offence provisions of the Criminal Code, including section 11.1
(attempt), apply in relation to the offence in substituted section 65Y. 'Ancillary
offence' is a defined term in the dictionary of the Criminal Code, and the specific
mention of the offence of attempt is not intended to exclude the application of any
other ancillary offence.
Fourth, the penalty for the offence is equivalent to existing section 65Y and is
3 years' imprisonment.
Fifth, the amendment would insert a new defence of fleeing family violence. This
is intended to address recommendation 2 of the Report.
The proposed defence of fleeing 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.
The defence would be satisfied if it was reasonable to have carried out the
conduct constituting the offence of removing 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).
Amendment 7: Schedule 6, item 45, page 24 (line 17)
49. 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.
Amendment 8: Schedule 6, item 45, page 25 (lines 1 to 4)
50. Amendment 8 would make small changes to the wording of proposed
paragraph 65YA(c) that would provide that further consent can be given, authenticated in
writing (pursuant to regulation 13 of the Family Law Regulations 1984), or a further order of
the court made, to authorise the retention of the child overseas. Under the provisions, an
offence will not be committed if written consent (authenticated as prescribed) is given, or an
order of a court made, subsequently to the child/ren being taken from Australia.
10
51. As noted above, regulation 13 of the Family Law Regulations 1984 sets out the
requirements for the authentication of consent in writing for existing offence provisions in the
Act relating to international parental child abduction.
52. It is intended that, following the enactment of these amendments, regulation 13 would
also be amended to refer to the new paragraph 65YA(b)(i).
Amendment 9: Schedule 6, item 45, page 25 (after line 13)
53. Amendment 9 would add a defence of fleeing family violence that would apply to the
proposed offence, in proposed section 65YA, of unlawfully retaining a child outside Australia
in cases where certain parenting orders have been made. This is intended to address
recommendation 2 of the Report.
54. The proposed defence of fleeing 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.
55. The defence would be satisfied if it was reasonable to have carried out the conduct
constituting the offence of removing 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).
Amendment 10: Schedule 6, item 46, page 25 (lines 14 to 18)
56. The amendment would repeal existing section 65Z and substitute a new section 65Z
to make it consistent with the new proposed offences of retaining a child overseas at
proposed sections 65YA and 65ZAA.
57. Similar to amendment 6 referred to above, amendment 10 would also remove the
offence-specific defence that requires the defendant to bear the evidential burden of proof
that the removal of the child was done in accordance with an order of a court or with the
written consent of the other party/ies. Under proposed substituted section 65Z the prosecution
would bear the burden of proof to prove that there is no court order or written consent
permitting the child to be taken or sent overseas.
58. The details of the amendment are as follows:
First, the amendment would omit and substitute the heading to section 65Z. This
amendment is consequential to the insertion of section 65ZAA by Item 47 of
Schedule 6 of the Bill. The current title of section 65Z is "Obligations if
proceedings for the making of certain parenting orders are pending". After the
insertion of section 65ZAA, the current title would be misleading as
section 65ZAA will also contain obligations that apply if certain parenting orders
are pending.
The new title substituted by this amendment would be "Obligations if
proceedings for the making of certain parenting orders are pending: taking or
sending a child outside Australia". This more specific title better clarifies the
purpose and effect of section 65Z.
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Second, the amendment would provide that a person commits an offence where:
o Part VII proceedings for the making, in relation to a child, of a parenting
order to which this Subdivision applies are pending, and
o the child has is taken or sent from Australia to a place outside Australia, by,
on behalf of , or at the request of a person who is a party to the Part
VII proceedings, and
o the child has been taken or sent from Australia to a place outside Australia
without the consent in writing (authenticated as prescribed) of each person
to the Part VII proceedings or in accordance with an order of a court made
after the institution of the Part VII proceedings.
As noted above, regulation 13 of the Family Law Regulations 1984 sets out the
requirements for the authentication of consent in writing for existing offence
provisions in the Act relating to international parental child abduction.
It is intended that, following the enactment of these amendments, regulation 13
would also be amended to refer to the new subparagraph 65Z(c)(i).
Third, the amendment would also insert a note to substituted section 65Z stating
that the ancillary offence provisions of the Criminal Code, including section 11.1
(attempt), apply in relation to the offence in substituted section 65Z. 'Ancillary
offence' is a defined term in the dictionary of the Criminal Code, and the specific
mention of the offence of attempt is not intended to exclude the application of any
other ancillary offence.
Fourth, the penalty for the offence is equivalent to existing section 65Z and is
3 years' imprisonment.
Fifth, the amendment would add a defence of fleeing family violence. This is also
intended to address recommendation 2 of the Report.
The proposed defence of fleeing 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.
The defence would be satisfied if it was reasonable to have carried out the
conduct constituting the offence of removing 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).
Amendment 11: Schedule 6, item 47, page 25 (line 24)
59. Amendment 11 is a technical amendment consequential to the proposed insertion of
new subsection 65ZAA(2) by amendment 13. Amendment 10 assigns a subsection number to
the existing text of section 65ZAA to accommodate the insertion of the new subsection by
amendment 13.
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Amendment 12: Schedule 6, item 47, page 26 (lines 4 to 7)
60. Amendment 12 would make small changes to the wording of proposed
paragraph 65ZAA(c) offence that would permit further consent to be given, authenticated in
writing (pursuant to regulation 13 of the Family Law Regulations 1984), or further order of a
court made, to authorise the retention of the child overseas. Under the provisions, an offence
will not be committed if written consent (authenticated as prescribed) is given, or an order of
a court made, subsequently to the child/ren being taken from Australia.
61. As noted above, regulation 13 of the Family Law Regulations 1984 sets out the
requirements for the authentication of consent in writing for existing offence provisions in the
Act relating to international parental child abduction.
62. It is intended that, following the enactment of these amendments, regulation 13 would
also be amended to refer to the new subparagraph 65ZAA(b)(i).
Amendment 13: Schedule 6, item 47, page 26 (after line 14)
63. Amendment 13 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 court orders are pending. This is also intended to
address recommendation 2 of the Report.
64. The proposed defence of fleeing 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.
65. The defence would be satisfied if it was reasonable to have carried out the conduct
constituting the offence of removing 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).
Amendment 14: Schedule 6, page 26, (after line 14)
66. Similar to amendments 6 and 10 referred to above, new items 47A and 47B of
Schedule 6 would reframe the offences at section 65ZA and 65ZB of the Act and remove the
offence-specific defence that requires the defendant to bear the evidential burden of proof
that the removal of the child was done in accordance with an order of a court or with the
written consent of the other party/ies. Under proposed substituted subsections 65ZA(1) and
65ZB(1) the prosecution would bear the burden of proving that there is no authority
permitting the child to be taken or sent overseas.
67. The reframed sections 65ZA and 65ZB would continue to include the offence-specific
defence of 'reasonable excuse' in subsections 65ZA(2) and 65ZB(2). Therefore a person
would not commit an offence against subsection 65ZA or 65ZB if the person can show that
they had a reasonable excuse for taking or sending the child overseas.
68. The note to subsection 65ZA(2) and 65ZB(2) would indicate that the person bears the
evidential burden in relation to this matter (see subsection 13.3(3) of the Criminal Code).
69. The penalties for the offences at substituted subsections 65ZA(1) and 65ZB(1) are
equivalent to existing subsections 65ZA(2) and 65ZB(2), and are both 60 penalty units.
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70. New item 47C of Schedule 6 is a technical amendment consequential to the proposed
repeal and substitution of subsections 65ZA(2) and 65ZB(2) for subsections 65ZA(1) and
65ZB(1) by new items 47A and 47B of Schedule 6, respectively.
Amendment 15: Schedule 6, item 52, page 27 (lines 7 and 8)
71. Amendment 15 is a technical amendment and would omit the reference to sections
65Y and 65Z from the application provisions. This means that the proposed sections 65Y and
65Z only apply to a child taken or sent from Australia on or after the commencement of the
Division, or to a child taken or sent from Australia before the commencement of the Division,
if the period specified in the consent or order in accordance with which the child was taken or
sent ended after that commencement or was extended so that it ended after that
commencement.
Amendment 16: Schedule 6, page 27 (after line 8) after item 52
72. Amendment 16 would insert a savings provision. This amendment would ensure
regulation 13 of the Family Law Regulations 1984, which was made for the purposes of
existing offences under the Act, is protected and would continue to apply to the new and
amended offence provisions. The amendment would ensure that authorised arrangements, for
which consent has been authenticated in writing, as required by the regulation, would not be
subject to the new, and amended, offence provisions. It also ensures that parents have a
means of securing consent to protect behaviour that would otherwise constitute the
commission of an offence.
Schedule 8--Amendments of the Legislation Act 2003
Amendment 17: Schedule 8, page 38 (after line 17)
73. Amendment 17 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.
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