Civil Law and Justice Legislation Amendment Bill 2017 [2017] AUSStaCSBSD 100 (29 March 2017)

• Civil Law and Justice Legislation Amendment Bill 2017
• Retrospective application 12
• Broad delegation of administrative powers16
• Retrospective application19

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Civil Law and Justice Legislation Amendment Bill 2017

Purpose	This bill seeks to make minor and technical amendments to various pieces of civil justice legislation
Portfolio/Sponsor	Attorney-General
Introduced	22 March 2017

Retrospective application ^[12]

1.12 Item 32 of Schedule 6 seeks to amend subsection 117C(2) of the Family Law Act 1975. The existing provision prohibits parties in certain proceedings from disclosing to the family law courts the fact that an offer of settlement has been made and the terms of any such offer, except when considering a costs order. This amendment would allow the fact that an offer has been made to be disclosed to the courts (but not the terms of the offer). The purpose of that amendment is to 'promote early settlement of matters'.^[13] Item 34 provides that these amendments apply to offers made before, on or after the commencement of the Part. This therefore applies retrospectively.

1.13 The committee has a long-standing scrutiny concern about provisions that have the effect of applying retrospectively, as it challenges a basic value of the rule of law that, in general, laws should only operate prospectively (not retrospectively). The committee has a particular concern if the legislation will, or might, have a detrimental effect on individuals.

1.14 Generally, where proposed legislation will have a retrospective effect the committee expects the explanatory materials should set out the reasons why retrospectivity is sought, and whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected.

1.15 In this instance, the explanatory memorandum argues that it is appropriate to apply this substantive change retrospectively to offers which have been made prior to commencement on the following basis:

Where a matter is currently on foot before the family law courts, it is appropriate to allow the court to consider whether an offer to settle has been made for case management and similar purposes.
It is very unlikely that parties would suffer any detriment as a result of the retrospective application of this amendment. While it would no longer be prohibited to disclose to the court that an offer of settlement has been made, this disclosure is already made (and will continue to be made) in the context of the court's consideration of costs. Importantly, the prohibition on disclosing the terms of the offer to the court is not amended by the Bill and would continue to apply in all cases. This strikes the appropriate balance between encouraging parties to negotiate and reach early settlement of matters on terms that are satisfactory to both parties, and the ability of the court to supervise matters. Further, given that under the existing law, disclosing the existence of an offer to the court does not disqualify the judge from sitting, there is unlikely to be any practical effect on existing cases by removing that requirement in its entirety.^[14]

1.16 The committee notes that this provision was initially proposed in the Family Law Amendment (Financial Agreements and Other Measures) Bill 2015 (which lapsed at the dissolution of Parliament). The committee welcomes the inclusion of this detailed explanation in the explanatory memorandum, which follows a request from the committee in its First Report of 2016 in relation to the earlier bill.^[15]

1.17 The committee notes that the explanatory memorandum explains that it is unlikely that parties would suffer any detriment as a result of applying these provisions retrospectively. However, the committee notes it is difficult to quantify any detriment that might be suffered by a party who may have refused an offer to settle on the basis of the law as it currently stands (i.e. believing that the fact of that offer could not be disclosed to the court).

1.18 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of the retrospective application of this measure.

The committee draws Senators' attention to the provision, as it may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the committee's terms of reference.

Broad delegation of administrative powers^[16]

1.19 Currently section 122A of the Family Law Act 1975 sets out the powers of entry and search for the purposes of arresting a person pursuant to that Act. The existing provision provides for any person to be authorised to exercise these coercive powers. This bill proposes inserting a new section 122A and 122AA to provide 'a more modern framework for arrests, with substantially improved safeguards'.^[17] The committee welcomes the introduction of additional safeguards regarding the exercise of these coercive powers.

1.20 Proposed paragraph 122A(1)(i) sets out who is authorised to make an arrest. In addition to persons such as a Marshal, Deputy Marshal, Sheriff or Deputy Sheriff, police officer or the Australian Border Force Commissioner, the bill provides that the power to arrest another person is conferred on 'an APS employee' in the Department of Immigration and Border Protection.

1.21 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. In relation to the exercise of coercive powers such as the power to arrest another person, use force, and enter and search premises, the committee expects the person authorised to use such powers should have received appropriate training. Where broad delegations are provided for, the committee considers that an explanation of why these are considered necessary should be included in the explanatory memorandum.

1.22 In this instance, the explanatory memorandum explains:

New subsection 122A(1) would explicitly set out the categories of persons, who are authorised by the Act or by a warrant issued under the Act to arrest another person, to whom the section applies. This would limit the persons who may exercise arrest powers to only appropriate people. This reflects the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, which provides that 'arrest powers should only be granted to sworn police officers unless there are exceptional circumstances which clearly justify extending these powers to non-police'.
The list of arresters in new subsection 122A(1) would reflect the list of authorised persons in rule 21.17 of the Family Law Rules and Rule 25B.74 of the Federal Circuit Court Rules, except that it would not provide for 'any other person' to be authorised. To ensure that all the relevant officers would be authorised to exercise arrest powers under the Act, the list would also include the Australian Border Force Commissioner and an APS employee in the Department administered by the Minister administering the Australian Border Force Act 2015. This is intended to cover Australian Border Force officers who may be required to exercise powers of arrest in relation to, for example, a parent attempting to abduct their child overseas. The urgency of ensuring children are not abducted internationally warrants the extension of these powers to officers of the Australian Border Force.^[18]

1.23 The committee is concerned that while it is intended that the reference to 'an APS employee' would only cover Australian Border Force officers who may be required to exercise powers of arrest, there is nothing in the legislation to limit it in this way. There is also nothing in the legislation that requires the relevant APS employee to have appropriate police-like training in order to exercise those powers of arrest, the use of force and search and entry powers.

1.24 The committee requests the Attorney-General's advice as to the appropriateness of enabling any APS employee within the Department of Immigration and Border Protection to exercise coercive powers and whether the bill can be amended to require a certain level of relevant training be undertaken by those APS employees authorised to exercise these coercive powers.

Pending the Attorney-General's reply, the committee draws Senators' attention to the provision, as it may be considered to make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers, in breach of principle 1(a)(ii) of the committee's terms of reference.

Retrospective application^[19]

1.25 Schedule 7 seeks to make a number of amendments to section 8 of the International Arbitration Act 1974 to clarify that a foreign award is binding between the 'parties to the award' rather than between the 'parties to the agreement'.^[20] Item 5 provides that these amendments apply in relation to any arbitral proceedings 'whether commenced before or after this item commences'. The explanatory memorandum simply restates the provision without providing any explanation. Applying the amendments to proceedings which commenced before the commencement of the amending legislation has a retrospective application.

1.26 The committee has a long-standing scrutiny concern about provisions that have the effect of applying retrospectively, as it challenges a basic value of the rule of law that, in general, laws should only operate prospectively (not retrospectively). The committee has a particular concern if the legislation will, or might, have a detrimental effect on individuals.

1.6 Generally, where proposed legislation will have a retrospective effect the committee expects the explanatory materials should set out the reasons why retrospectivity is sought, and whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected.

1.27 The committee therefore seeks the Attorney-General's advice as to why it is proposed to apply the amendments to section 8 of the International Arbitration Act 1974 to arbitral proceedings that commenced before the commencement of this item of the bill and whether it is possible that any party to such proceedings may suffer any detriment due to this retrospective application.

Pending the Attorney-General's reply, the committee draws Senators' attention to the provision, as it may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the committee's terms of reference.

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[12] Schedule 6, item 34.

[13] Explanatory memorandum, p. 43.

[14] Explanatory memorandum, pp 43-44.

[15] Senate Standing Committee for the Scrutiny of Bills, First Report of 2016, pp 18-26, at p. 25.

[16] Schedule 6, item 35, proposed paragraph 122A(1)(i) of the Family Law Act 1975.

[17] Explanatory memorandum, p. 44.

[18] Explanatory memorandum, pp 44-45.

[19] Schedule 7, item 5.

[20] See explanatory memorandum, p. 59.