Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]

FAMILY LAW AMENDMENT REGULATION 2012 (NO. 2) (SLI NO 50 OF 2012)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2012 No. 50

 

Subject -          Family Law Act 1975

 

Family Law Amendment Regulation 2012 (No. 2)

 

 

Subsection 40(1) of the Family Law Act 1975 provides that regulations may restrict the exercise of jurisdiction of the Family Court of Australia under the Family Law Act in specified States or Territories from time to time. 

 

Schedule 2 of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 substituted subsection 40(1) and repealed subsection 40(2) of the Family Law Act.  This removed the requirement that a Proclamation must be made to fix a date as the date on and after which the jurisdiction of the Family Court of Australia under the Family Law Act may be exercised in respect of all proceedings, in specified States and Territories.  This creates a default position that the Family Court of Australia can exercise all jurisdiction validly conferred on it under the Family Law Act. 

 

The Regulation provides that certain jurisdiction of the Family Court of Australia under the Family Law Act must not be exercised in a number of States and Territories, maintaining the status quo in terms of where the Family Court of Australia can exercise its jurisdiction under the Family Law Act.

 

The Regulation restricts the Family Court of Australia from exercising jurisdiction under paragraph 31(1)(c) of the Family Law Act, which concerns the jurisdiction matters arising under law of a territory (other than Northern Territory) including adoption of children.  The Family Court of Australia has never been able to exercise this jurisdiction and the Regulation continues to restrict the exercise of this jurisdiction in all States or Territories.

 

The Regulation also restricts the Family Court of Australia from exercising a large proportion of the jurisdiction conferred on it under the Family Law Act in Western Australia, the Cocos (Keeling) Islands and Christmas Island.  The Proclamations under the repealed subsection 40(2) limited the exercise of the Family Court of Australia's jurisdiction in Western Australia as there is a State Family Court which is invested with federal jurisdiction under the Family Law Act.  That is, the Family Court of Australia has limited jurisdiction in Western Australia and can only exercise appeal jurisdiction conferred by section 93A with respect to appeals under subsections 94(1) and 94AAA(1A) of the Family Law Act.  The Regulation will maintain this restriction. 

 

The Cocos (Keeling) Islands and Christmas Island are included in the Regulation as the Family Court of Western Australia exercises original jurisdiction in relation to family law matters in those territories.  The exercise of this jurisdiction is by virtue of section 41 of the Family Law Act, sections 8A, 15AAB, 15AAC(2) of the Cocos (Keeling) Islands Act 1955, and sections 8A, 14B and 14C(2) of the Christmas Island Act 1958. 

 

By virtue of section 40A of the Family Law Act, the restrictions in the Regulation will also limit the exercise jurisdiction under the Family Law Act by the Federal Magistrates Court.  Section 40A provides that the Federal Magistrates Court must not exercise jurisdiction in a particular State or Territory if the Family Court of Australia is not capable of also exercising this jurisdiction.

 

The Regulation does not impact on the exercise of jurisdiction not subject to Proclamations under the repealed subsection 40(2).  Subsection 40(8) of the Family Law Act provides that section 40 does not apply in relation to jurisdiction conferred under Part VII, or in relation to jurisdiction conferred on a federal court or court of a Territory or invested in a court of a State by regulations made for the purpose of section 111C.  Therefore, these jurisdictions remain unaffected by the Regulation.

 

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

 

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.  The Family Court of Australia and the Family Court of Western Australia have been consulted on the Regulation.

 

Details of the Regulation are as follows:

 

Section 1 -- Name of regulation

 

Section 1 provides the title of the Regulation.

 

Section 2 -- Commencement

 

Section 2 provides the commencement of the Regulation.  The Regulation commences on 21 April 2012.

 

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 inserts a new Regulation 39BB, which provides that certain jurisdiction of the Family Court of Australia under the Family Law Act must not be exercised in specified States and Territories.  The Regulation ensures that the Family Court of Australia can continue to exercise the same jurisdiction it could exercise prior to the commencement of Schedule 2.  The exercise of jurisdiction under the Family Law Act is that same as that enabled by Proclamations made under the repealed subsection 40(1) and (2).

 

Sub-regulation 39BB(1) provides that the Family Court of Australia cannot exercise jurisdiction under paragraph 31(1)(c) of the Family Law Act.  Paragraph 31(1)(c) enables the Family Court of Australia to exercise much the same broad powers over family law as can be exercised by a state Family Court possessing both state and federal jurisdiction.  The Family Court of Australia has never been able to exercise this jurisdiction in any State or Territory as it was never subject to a Proclamation under the repealed subsection 40(2).  The Regulation maintains this restriction. 

 

Sub-regulation 39BB(2) restricts the Family Court of Australia from exercising the listed jurisdiction under the Family Law Act in Western Australia.  There is no change to existing arrangements which provide for the Family Court of Western Australia to exercise original jurisdiction under the Family Law Act in Western Australia, rather than the Family Court of Australia or Federal Magistrates Court. 

 

Sub-regulation 39BB(2) also extends to the Cocos (Keeling) Islands and Christmas Island.  The Family Court of Western Australia exercises original jurisdiction in relation to family law matters in those territories by virtue of section 41 of the Family Law Act, sections 8A, 15AAB, 15AAC(2) of the Cocos (Keeling) Islands Act 1955, and sections 8A, 14B and 14C(2) of the Christmas Island Act 1958.  The Family Court of Australia exercises the same appellate jurisdiction these territories as it exercises with respect o matter heard by the Family Court of Western Australia (sub-paragraph 94(1)(b)(i) of the Family Law Act).  Therefore, references to the Cocos (Keeling) Islands and Christmas Island are included in 39BB(2) to continue to allow only the Family Court of Western Australia to exercise original jurisdiction under the Family Law Act in relation to those territories. 

 

Sub-regulation 39BB(3) qualifies that the restriction under paragraphs (g) and (h) in sub-regulation 39BB(2) is only in relation to appeals under subsection 94(1AA) and subsection 94AAA(1) of the Act.  The use of the word 'however' is consistent with current drafting practice to make the qualification to sub-regulation 39BB(2).  The effect of sub-regulation 39BB(3) enables the Family Court of Australia to continue to exercise the jurisdiction to hear appeals from the State Family Court under subsections 94(1) and 94AAA(1A) of the Family Law Act, as conferred by section 93A.  The Family Court of Australia could, prior to the commencement of Schedule 2 of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012, exercise these jurisdictions as these were the subject of Proclamations made under the repealed subsection 40(2). 

 

 

 

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. 2)

This Regulation 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 Regulation

The purpose of the Regulation is to restrict the Family Court of Australia from exercising certain jurisdiction under the Family Law Act 1975 (Cth) in specified States and Territories. 

The need for the Regulation follows amendments which were made to the Family Law Act by the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 which removed the requirement for a Proclamation to be made to fix a date on and after which the Family Court of Australia can exercise its jurisdiction in specified States and Territories.  While the original requirement for a Proclamation was to allow for the 'phasing in' of the Family Court of Australia's jurisdiction in 1976, it is has also been used as a tool to restrict the Family Court of Australia from exercising jurisdiction in certain States and Territories.  This has been most notable in Western Australia, where current arrangements provide for the State Family Court to exercise federal jurisdiction arising under the Family Law Act, rather than the Family Court of Australia. 

To ensure that there is no alteration to the status quo in terms of where the Family Court of Australia can and should exercise jurisdiction, the Regulation restricts the Family Court of Australia's exercise of jurisdiction in appropriate circumstances.  In particular, the Regulation ensures that there is no change to existing arrangements in Western Australia, the Cocos (Keeling) Island and Christmas Island, where the jurisdiction of the Family Court of Australia has been limited to the jurisdiction to hear appeals from the Western Australian State Family Court under subsections 94(1) and 94AAA(1A) of the Family Law Act, as conferred by section 93A. 

The Regulation also restricts the Family Court of Australia from exercising jurisdiction under paragraph 31(1)(c) of the Family Law Act, which relates to matters arising under a law of a territory (other than Northern Territory) including, but not limited to, matters concerning the adoption of children.  This jurisdiction has never been exercised by the Family Court of Australia, as a Proclamation has never been made to set the date from which the Family Court of Australia can exercise this jurisdiction.  The Regulation will therefore continue to restrict the Family Court of Australia from exercising this jurisdiction in all States and Territories.

Human rights implications

The Regulation engages but does not limit the right to a fair trial. 

The right to a fair trial is protected in Article 14 of the International Covenant on Civil and Political Rights (ICCPR).  Article 14 is aimed at ensuring the proper administration of justice, which includes the right to equality before the courts and tribunals and the right to a fair and public hearing by a competent, independent and impartial tribunal established by law.

The right to a fair trial will not be prejudiced by the Regulation.  The Regulation ensures that the Family Court of Australia can continue to exercise the same jurisdiction it could exercise prior to the commencement of Schedule 2 of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012.  The exercise of jurisdiction under the Family Law Act is that same as that enabled by Proclamations made under the repealed subsection 40(1) and (2).  This will ensure that laws continue to be applied consistently and that, where relevant, persons continue to have access to Federal, State and Territory law.

Conclusion

The Regulation is compatible with human rights. 

 

 

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback