Details of the Financial Framework (Supplementary Powers) Amendment (Attorney-General's Portfolio Measures No. 1) Regulations 2018

 

Section 1 - Name

 

This section provides that the title of the Regulations is the Financial Framework (Supplementary Powers) Amendment (Attorney-General's Portfolio Measures No. 1) Regulations 2018.

 

Section 2 - Commencement

 

This section provides that the Regulations commence on the day after they are registered on the Federal Register of Legislation. 

 

Section 3 - Authority

 

This section provides that the Regulations are made under the Financial Framework (Supplementary Powers) Act 1997.

 

Section 4 - Schedules

 

This section provides that the Financial Framework (Supplementary Powers) Regulations 1997 are amended as set out in the Schedule to the Regulations.

 

Schedule 1 - Amendments

 

Item 1 - In the appropriate position in Part 2 of Schedule 1AB (table)

 

This item adds a new table item to Part 2 of Schedule 1AB to establish legislative authority for government spending on family law payments to states and territories administered by the Attorney-General's Department.

 

New table item 11 establishes legislative authority for the Government to make payments to states and territories for services under the Family Law Act 1975 (the Family Law Act) and the child support scheme legislation (the Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989).

 

The Family Law Act confers jurisdiction on territory courts and invests jurisdiction in state courts for matters arising under the Act, with certain exceptions.  Similarly, the child support scheme legislation confers jurisdiction on territory courts and invests jurisdiction in state courts for matters arising under the Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989.

 

The Commonwealth has existing agreements with states for two types of services:

*         reimbursements for costs incurred by state courts in exercising federal jurisdiction under the Family Law Act and the child support scheme legislation; and

*         reimbursements for the use of state court facilities by the Family Court of Australia and the Federal Circuit Court of Australia (the family law courts) such as the hiring of court rooms and related security and interpreter costs.

 

These arrangements, which are generally referred to as the Family Law Payments to States (FLPS) scheme, encourage and support state courts to exercise jurisdiction under the Family Law Act and the child support scheme legislation.  This exercise of jurisdiction has benefits for sections of the community, more specifically:

*         separating families, particularly families residing in rural, regional or remote areas where it can be more difficult to access the family law courts; and

*         those affected by family violence and their children who seek the protection of a family violence order from a state or territory court but have a conflicting family law order in place.

 

Prior to the Family Law Act coming into force and the creation of the Family Court of Australia, all maintenance matters were handled by state courts under the provisions of the Matrimonial Causes Act 1959 and relevant state legislation.  Following the introduction of the Family Law Act, some state courts continue to offer processing, serving and enforcing of maintenance orders.  The Commonwealth reimburses the costs of these services.

 

The FLPS scheme also reimburses state courts for the use of their facilities by the family law courts when they circuit to regional areas.  The use of state local court or magistrates court facilities prevents the need for the Commonwealth to incur costs to duplicate these facilities.  There are existing agreements for the use of court facilities in place between the Commonwealth and New South Wales, Western Australia, Victoria and Tasmania. 

 

The amount of payments to a particular state depends on the terms of its agreement with the Commonwealth, for example the number of matters dealt with by state courts during the payment period and the agreed rates for services.  The amount of payments may also be affected indirectly by overall trends in family law matters in Australia, for example the transfer of state-based child support cases to the Department of Human Services.

 

Ongoing funding for the FLPS scheme comes from Program 1.4: Justice Services, which is part of Outcome 1.  Funding of $7.2 million over four years from 2017-18 was allocated for the FLPS scheme in the 2017-18 Budget.  Details are set out in the Portfolio Budget Statements 2017-18, Budget Related Paper No. 1.2, Attorney-General's Portfolio at page 20.

 

In addition, funding of $0.5 million was included in the 2017-18 Mid-Year Economic and Fiscal Outlook under the measure 'Family Law Amendment - implementation pilot' for a period of two years from 2018-19.  Details are set out in the Mid-Year Economic and Fiscal Outlook 2017-18, Appendix A: Policy decisions taken since the 2017-18 Budget at page 137.

 

The objective of the pilot program is to increase the ability of courts in up to three selected states and territories to exercise enhanced family law jurisdiction, reducing the need for parties to engage with multiple courts across the federal family law and state and territory family violence and child protection systems, and to measure the impact of doing so.  The pilot program is subject to the passage of the Family Law Amendment (Family Violence and Other Measures) Bill 2017 introduced into the Senate on 6 December 2017.

 

The legislation, once enacted, would allow children's courts to be prescribed to have parenting jurisdiction, and increase the value of property matters which require both parties' consent to be heard by a court of summary jurisdiction.  Federal jurisdiction is invested in state courts and conferred on territory courts for parenting matters and property matters which arise under Part VII and Part VIII of the Family Law Act, respectively.  

 

 

Decisions about making family law payments to states and territories will be made by a delegate of the Secretary of the department.  These decisions will not be subject to independent review.  State and territory courts are the only possible providers of services under the FLPS scheme, and payments would be governed by the terms of agreements between the Commonwealth and a relevant state or territory.

 

Noting that it is not a comprehensive statement of relevant constitutional considerations, the purpose of the item references the following powers of the Constitution:

*         the power to invest any court of a state with federal jurisdiction (section 77(iii));

*         the Commonwealth express incidental power (section 51(xxxix));

*         the power to grant financial assistance to states (section 96); and

*         the territories power (section 122).

 

Conferral of federal jurisdiction on any court of a state and the express incidental powers

 

Section 77(iii) of the Constitution, read with section 51(xxxix), allows the Commonwealth Parliament to make laws with respect to or incidental to the conferral of federal jurisdiction on any court of a state.  State courts have been invested with federal jurisdiction under the Family Law Act and the child support scheme legislation.  The program will fund the activities of state courts exercising that federal jurisdiction.

 

Grants of financial assistance to states

 

Section 96 of the Constitution allows the Commonwealth Parliament to provide grants of financial assistance to any state on such terms and conditions as the Commonwealth Parliament sees fit.  Funding will be provided to states under the FLPS scheme for the use of state court facilities by the federal family law courts and for the exercise by state courts of federal jurisdiction under certain Commonwealth legislation.

 

Territories power

 

Under section 122 of the Constitution, the Parliament may make laws for the government of territories.  Under the program, funding may be provided to one or more territories in respect of the exercise of federal jurisdiction by territory courts under the Family Law Act and the child support scheme legislation.

 

 

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Financial Framework (Supplementary Powers) Amendment (Attorney-General's Portfolio Measures No. 1) Regulations 2018

 

These Regulations 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.

 

Overview of the Legislative Instrument

 

Section 32B of the Financial Framework (Supplementary Powers) Act 1997 (the FF(SP) Act) authorises the Commonwealth to make, vary and administer arrangements and grants specified in the Financial Framework (Supplementary Powers) Regulations 1997 (the FF(SP) Regulations) and to make, vary and administer arrangements and grants for the purposes of programs specified in the Regulations.  Schedule 1AA and Schedule 1AB to the FF(SP) Regulations specify the arrangements, grants and programs.  The FF(SP) Act applies to Ministers and the accountable authorities of non-corporate Commonwealth entities, as defined under section 12 of the Public Governance, Performance and Accountability Act 2013. 

 

The Regulations amend Schedule 1AB to the FF(SP) Regulations to establish legislative authority for government spending on payments to states and territories for services under the Family Law Act 1975, the Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989.  These payments include:

*         reimbursements for costs incurred by state courts in exercising federal jurisdiction under the above legislation;

*         reimbursements for the use of state court facilities by the Family Court of Australia and the Federal Circuit Court of Australia such as the hiring of court rooms and related security and interpreter costs; and

*         payments under a pilot program to increase the ability of state and territory courts in up to three jurisdictions to exercise enhanced family law jurisdiction, subject to the passage of relevant amendments to the Family Law Act 1975.

 

The reimbursements are part of existing agreements between the Commonwealth and relevant states.  The agreements are administered by the Attorney-General's Department.  The pilot program for state and territory courts to exercise enhanced family law jurisdiction was included in the 2017-18 Mid-Year Economic and Fiscal Outlook.

 

The Attorney-General has responsibility for this matter.

 

Human rights implications

 

The Regulations do not engage any of the applicable rights or freedoms.

 

 

Conclusion

 

These Regulations are compatible with human rights as they do not raise any human rights issues.

 

 

 

 

Senator the Hon Mathias Cormann

Minister for Finance