Commonwealth Numbered Regulations - Explanatory Statements

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FAMILY LAW AMENDMENT REGULATION 2012 (NO. 1) (SLI NO 9 OF 2012)

EXPLANATORY STATEMENT

Select Legislative Instrument 2012 No. 9

Issued by Authority of the Attorney-General

Family Law Act 1975

Family Law Amendment Regulation 2012 (No. 1)

Subsection 125(1) of the Family Law Act 1975 (the Family Law Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Family Law Act, prescribing all matters required or permitted by the Family Law Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Family Law Act.

The purpose of the Regulation is to amend the Family Law Regulations 1984 (the Principal Regulations) to ensure that the Family Law Act applies to South Australian family violence orders following the commencement of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the SA Act) and to recognise the Queensland relationships register following commencement of the Civil Partnerships Act 2011 (QLD) (the QLD Act).

In particular, the Regulation:

*                amends the list of legislation prescribed for South Australia for the purposes of the definition of 'family violence order' in the Family Law Act following the commencement of the SA Act which replaces the repealed Domestic Violence Act 1994 (SA).  Orders restraining family or personal violence may only be made by the authority of the SA Act;

*                amends the list of legislation prescribed for the purposes of section 114AB of the Family Law Act following the commencement of the SA Act which replaces the repealed Domestic Violence Act 1994 (SA); and the commencement of the Statutes Amendment (Children's Protection) Act 2009 (SA) which repeals those sections of the Summary Procedure Act 1921 (SA) which provide for personal violence restraining orders.  Orders restraining family or personal violence may only be made by the authority of the SA Act;

*                prescribes laws in Queensland providing for the registration of relationships, and certain kinds of relationships registered under those laws, for the purpose of the definition of 'de facto relationship' in the Family Law Act;

*                prescribes laws in Queensland providing for the registration of relationships, to enable de facto couples who have registered their relationship under those laws to satisfy the requirements for invoking the jurisdiction of the Family Court for making a property settlement or maintenance order under the Family Law Act.

The Family Law Act specifies no conditions that need to be satisfied before the power to make the Regulation may be exercised.

The Queensland Government and the South Australian Government were consulted on the Regulation.  No further consultation was considered necessary because the Regulation preserves the existing substantive effect of the Principal Regulations.

Sections 1 to 3 and items 3 and 4 of the Regulation relating to the SA Act commence the day after the Regulation is registered.  Items 1 and 2 of the Regulation, relating to the QLD Act, commence on the commencement of the QLD Act.

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Details of the Regulation is as follows:

Section 1 -- Name of regulation

Section 1 provides that the title of the Regulation is the Family Law Amendment Regulation 2012 (No. 1).

Section 2 -- Commencement

Section 2 provides the commencement of the Regulation.  Sections 1 to 3 and items [3] and [4] of Schedule 1 commence on the day after the Regulation is registered.  Items [1] and [2] of Schedule 1 commence on the commencement of the Civil Partnerships Act 2011 (QLD).

Section 3 -- Amendment of Family Law Regulations 1984

Section 3 provides that the Family Law Regulations 1984 are amended as set out in Schedule 1.

Schedule 1 -- Amendments

Item [1] - Regulation 12BC, table, after item 2

Item 1 inserts new item 2A in the table under regulation 12BC that prescribes the Civil Partnerships Act 2011 (QLD) and the kind of registered relationship (a relationship as a couple between 2 adults who meet the eligibility criteria mentioned in section 5 of that Act for entry into a civil partnership) for the purposes of paragraph 4AA(2)(g) of the Family Law Act 1975.

The location of new item 2A is due to current drafting policy which lists Australian jurisdictions in descending order of population.

Item [2] - Regulation 15AB, table, after item 2

Item 2 inserts new item 2A in the table under regulation 15AB that prescribes the Civil Partnerships Act 2011 (QLD) for the purposes of paragraph 90SB(d) of the Family Law Act 1975.

The location of new item 2A is due to current drafting policy which lists Australian jurisdictions in descending order of population.

Item [3] - Paragraph 19 (e)

Item 3 substitutes paragraph 19(e) to prescribe the Intervention Orders (Prevention of Abuse) Act 2009 (SA) for the purposes of section 114AB of the Family Law Act 1975, as a consequence of the repeal of the Domestic Violence Act 1994 (SA).

Item [4] - Schedule 8

Item 4 substitutes Schedule 8.  The list under Schedule 8 prescribes State and Territory legislation for the purposes of section 114AB of the Family Law Act 1975.  This item amends the legislation prescribed for South Australia following the commencement of the Intervention Orders (Prevention of Abuse) Act 2009 (SA), on 9 December 2011.

The Intervention Orders (Prevention of Abuse) Act 2009 (SA) replaces the Domestic Violence Act 1994 (SA) (repealed) and the Summary Procedure Act 1921 (SA) (the Statutes Amendment (Children's Protection) Act 2009 (SA) repeals those sections of the Summary Procedure Act 1921 (SA) which provide for personal violence restraining orders).  Orders restraining family or personal violence may only be made by the authority of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).

The items in the table under Schedule 8 have been reordered in line with current drafting policy which lists Australian jurisdictions in descending order of population.


STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Family Law Amendment Regulation 2012 (No. 1)

This Legislative Instrument is 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

The Regulation amends the legislation prescribed for South Australia in regulation 19 and Schedule 8 of the Family Law Regulations 1984 (the Principal Regulations) following the commencement of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).  This will ensure that the Family Law Act 1975 (the Family Law Act) applies to South Australian family violence orders.

The Regulation also amends regulations 12BC and 15AB of the Principal Regulations to recognise the new Relationships Register in Queensland following the commencement of the Civil Partnerships Act 2011 (QLD).  This will ensure that the registration of de facto couples under the Queensland relationship registration scheme is recognised as conclusive evidence that two people are in a 'de facto relationship' for the purposes of the Family Law Act.

Human Rights Implications

The amendments to prescribe the Intervention Orders (Prevention of Abuse) Act 2009 (SA) does not affect any human rights as it is a technical change to reflect the current law in South Australia.

However, the Regulation does engage the following human rights

Respect for the family and equality and non-discrimination

Recognising relationships registered under a prescribed scheme of relationship recognition engages articles 23 and 26 of the International Covenant on Civil and Political Rights (ICCPR).  Article 23 guarantees the right to respect for family.  Article 26 guarantees the right to equal protection of the law without discrimination.

The United Nations Human Rights Committee has made it clear that the definition of family is not confined by the concept of marriage.  If countries recognise other arrangements that may constitute a family, those arrangements must be protected under article 23 of the ICCPR.

De facto couples registered under a relationship recognition scheme are recognised as conclusive evidence that two people are in a 'de facto relationship' for the purposes of the Family Law Act.

By ensuring that same-sex couples are recognised and have the same entitlements as opposite-sex de facto couples for the purposes of the Family Law Act, the Regulation protects the right to respect for family and the right to non-discrimination.

Conclusion

The Regulation is compatible with human rights because it advances the protection of human rights.

 

 

The Hon Nicola Roxon MP

Attorney-General

 


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