Family Law Amendment (Parenting Management Hearings) Bill 2017 - Commentary on Ministerial Responses [2018] AUSStaCSBSD 81 (21 March 2018)

• Family Law Amendment (Parenting Management Hearings) Bill 2017
• No-invalidity clauses156
• Reversal of evidential burden of proof160

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Family Law Amendment (Parenting Management Hearings) Bill 2017

Purpose	This bill seeks to amend the Family Law Act 1975 to establish a new forum for resolving less complex family law disputes
Portfolio	Attorney-General
Introduced	Senate on 6 December 2017
Bill status	Before the Senate

2.406 The committee dealt with this bill in Scrutiny Digest No. 1 of 2018. The Attorney-General responded to the committee's comments in a letter dated 6 March 2018. Set out below are extracts from the committee's initial scrutiny of the bill and the Attorney-General's response followed by the committee's comments on the response. A copy of the letter is available on the committee's website.^[155]

No-invalidity clauses^[156]

Initial scrutiny – extract

2.407 Proposed section 11LG seeks to require parties to a parenting management hearing to inform the Parenting Management Hearings Panel (the Panel) of particular matters relating to family violence orders, child care arrangements under child welfare laws, notices, investigations and reports. The proposed section also enables persons who are not parties to a hearing to inform the Panel of those matters. The explanatory memorandum states that proposed section 11LG is necessary to ensure that the Panel 'is aware of such orders, care arrangements, notifications and investigations' to ensure that it appropriately dismisses matters under new sections 11NA and 11NB, which require the panel to dismiss an application in relation to a child if the child is under the care of a person under a child welfare law, and that 'it does not inadvertently make an order inconsistent with a family violence order'.^[157]

2.408 However, proposed subsection 11LG(8) provides that a failure to inform the Panel of a matter covered by section 11LG does not affect the validity of any determination made by the Panel.

2.409 In addition, proposed section 11PB provides that the Panel must give reasons for a parenting determination, either orally or in writing, and enables parties to a parenting management hearing to request a statement of reasons from the Panel. Proposed section 11PC requires the Panel (by request or otherwise) to explain the consequences of a parenting determination to affected parties. The explanatory memorandum states that these provisions are to ensure all parties understand why the Panel has made a determination, and the consequences that flow from the determination.^[158] However, proposed subsections 11PB(8) and 11PC(7) provide that a failure to comply with the requirements of proposed sections 11PB and 11PC does not affect the validity of a parenting determination.

2.410 A legislative provision that indicates that an act done or decision made in breach of a particular statutory requirement or other administrative law norm does not result in the invalidity of that act or decision, may be described as a 'no-invalidity' clause. There are significant scrutiny concerns with no-invalidity clauses, as these clauses may limit the practical efficacy of judicial review to provide a remedy for legal errors. For example, as the conclusion that a decision is not invalid means that the decision-maker had the power (i.e. jurisdiction) to make it, review of the decision on the grounds of jurisdictional error is unlikely to be available. Consequently, some of judicial review's standard remedies will not be available. The committee therefore expects a sound justification for the use of a no-invalidity clause to be provided in the explanatory memorandum.

2.411 In relation to proposed subsections 11LG(8), 11PB(8) and 11PC(7), the explanatory memorandum states that the inclusion of no-invalidity clauses are appropriate to 'prevent technical defects after the Panel has already considered the matter.'^[159] However, it is not apparent to the committee that a failure to comply with proposed section 11LG or 11PB or 11PC can aptly be described as merely technical in nature. For example, a failure to notify the Panel of a matter contemplated by proposed section 11LG could lead to substantial inconsistency between a parenting determination and other protection orders (e.g. a family violence order), and could impact on the quality of parenting determinations more generally.

2.412 Further (in relation to proposed subsections 11PB(8) and 11PC(7)), enforceable obligations to provide reasons for and to explain the consequences of a particular decision (in this case, a decision to make a parenting determination) promotes good administrative practice, guards against arbitrariness, and increases public confidence in the exercise of administrative power. There is a strong argument that a failure to provide reasons for, or the consequences of, making or a parenting determination could compromise a person's right to a fair hearing. Given the importance of Panel determinations to interested parties and affected children, it is unclear to the committee why a determination should be accepted as valid where the Panel has failed to provide reasons for making it, or failed to explain the consequences of the determination for affected parties.

2.413 The committee seeks the Attorney-General's detailed justification for including no-invalidity clauses in proposed subsections 11LG(8), 11PB(8) and 11PC(7) of the bill, which mean that a failure to inform the Panel of relevant matters, or a failure by the Panel to provide reasons for, or explain the consequences of, making a parenting determination, will not invalidate a parenting determination.

Attorney-General's response

2.414 The Attorney-General advised:

Obligation to inform the Panel of certain matters
Section 11LG of the PMH Bill requires parties to a PMH to inform the Panel of particular matters relating to family violence orders, care arrangements for a child under child welfare laws, and notifications to and investigations by state or territory agencies. The provision is intended to encourage parties to make full and frank disclosures to the Panel about these issues, as these matters will be relevant to the Panel in making a determination in the best interests of the child. Subsection 11LG(8) provides that failure to inform the Panel of one of these matters does not affect the validity of a determination made by the Panel.
Section 11LG of the PMH Bill is a modelled on the following provisions in the Family Law Act 1975:

• Section 60CF-informing court of relevant family violence orders

• Section 60CH-informing court of care arrangements under child welfare laws, and

• Section 60CI-informing court of notifications to, and investigations by, prescribed State or Territory agencies).

Each of these sections in the Family Law Act provides that 'failure to inform the court of the matter does not affect the validity of any order made by the court'.
I consider the inclusion of the no-invalidity clause in subsection 11LG(8) is justified.
The no-invalidity clause is necessary to ensure that a party's non-compliance with the obligation cannot of itself be used to invalidate a determination. This is particularly important in the context of parenting disputes, where it may be tactically advantageous for one party not to inform the Panel (or a court) about the existence of a prior order, notification or arrangement in relation to the child. For example, the Panel may be notified about a family violence order by Party A; Party B does not notify the Panel about this family violence order; the Panel may then make a determination giving appropriate consideration to the existence of the family violence order. Without subsection 11LG(8), it would be open to Party B to rely on his or her own non-compliance with section 11LG to argue that the determination is invalid, notwithstanding the Panel had been informed about the family violence order by Party A.
Under the PMH Bill, the Panel would have broad information gathering powers and would be able to gather information in range of ways. Paragraph 11LD(1)(c), section 11M and section 11MK of the PMH Bill would ensure that the Panel is able to obtain all relevant information prior to making a parenting determination in relation to a child.
The no-invalidity clause in subsection 11LG(8) does not restrict the availability of judicial review of a Panel determination in relation to the Panel's obligation to consider all relevant considerations when making a determination. Rather, the restriction only applies to prevent the availability of judicial review on the grounds of jurisdictional error solely in relation to non-compliance with the requirement to inform the Panel of certain matters.
The legislative framework in the Bill clearly provides that when deciding whether to make a particular parenting determination the Panel must regard the best interest of the child as the paramount consideration (section 11P). Section 11JB sets out the matters the Panel must consider in determining the child's best interests. A primary consideration is 'the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence'. Additional considerations, to the extent that they are relevant to a particular application, include: 'any family violence involving the child or a member of the child's family,' and 'if a family violence order applies, or has applied, to the child or a member of the child's family- any relevant inferences that can be drawn from that order.'
Additionally, section 11PA expressly requires the Panel to consider family violence when making a parenting determination. Should the Panel make a determination that is inconsistent with an existing state and territory order, the existing state and territory order would prevail (due to the operation of section 11PH). State and territory courts will have the power to adjust a parenting determination to ensure consistency with a subsequent family violence order (section 68R).
This legislative framework ensures that the Panel is able to undertake its own investigations to obtain information relevant to a particular application, and is not solely reliant on parties complying with their obligations under section 11LG. The Panel is required to consider family violence and prioritise the safety of the child in making any parenting determination.
For the above reasons, I consider that inclusion of the no-invalidity clause in subsection 11LG(8), is justified and that the section appropriately places an obligation on parties to disclose relevant information, whilst ensuring that non-compliance with the requirement is not used tactically to invalidate otherwise sound determinations.
Duties of the Panel when making determinations
Section 11PC of the Bill sets out the duties of the Panel when making determinations, including that the Panel must set out particulars of the obligations created by a determination and consequences arising from a breach of a determination. If a party is not represented by a legal practitioner, the Panel must explain to each person about the availability of programs, and location and recovery orders.
Subsection 11PC(8) provides that a failure by the Panel to comply with a requirement to set out and explain certain matters in, or in connection with, the making of a determination does not affect the validity of the determination. This provision is modelled on, and equivalent to, section 65DA of the Family Law Act which provides, in the context of orders made by the family law courts, a failure by the court to comply with equivalent requirements under that section does not affect the validity of a parenting order.
I consider that the no-invalidity clause is justified in this context for the following reasons.
The objective of proposed section 11PC is to ensure that parties are aware of their obligations and, therefore, are more likely to comply. In this sense, it is a preventive measure directed at improving rates of compliance. The no-invalidity clause recognises that failure to comply with the requirements of section 11PC does not go to the substance of the determination itself. The determination must have been made in accordance with the decision-making framework provided for in the Bill, and the process for making the determination must have been procedurally fair.
Further, in the context of contraventions of parenting orders, section 70NAE of the Family Law Act sets out the meaning of 'reasonable excuse', and includes where a person has contravened an order 'because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it' and the court is satisfied that the person should be excused in respect of the contravention. The PMH Bill would amend section 70NAE to ensure that that section also applies in the context of parenting determinations (Schedule 1, Part 1, item 69 of the PMH Bill). This would ensure that any misunderstanding of a party as to the obligations a parenting determination creates, and the consequences that may follow if he or she contravenes the determination, can be appropriately taken into account in the context of any contravention proceedings.

For the above reasons, I consider that non-compliance with section 11PC is not of such a nature to justify a sound determination being invalid, and that the no-invalidity clause in subsection 11PC(8) is justified.
How parenting determinations are made
Sections 11PB of the PMH Bill sets out the requirements for how a parenting determination is to be made. Subsections 11PB(1) and (2) provide that a parenting determination may be made orally or in writing; and that the Panel must give a written copy of the determination to each party within 28 days. Subsection 11PB(3) provides that the Panel must give each party a statement notifying parties that they may request written reasons and that they have a right to appeal the determination to the Federal Circuit Court.
Subsections 11PB(4), (6) and (7) provide for the provision of reasons for determinations made by the Panel. Subsection 11PB(5) provides that if the Panel does not give written reasons for a parenting determination, the Panel must give each party a notice stating that the parties to the hearing may request written reasons. Subsection 11PB(8) provides that a failure by the Panel to comply with the section does not affect the validity of the determination.
Formal notification by the Panel to a party about their ability to request written reasons and their appeal rights following a determination is important. However, the Panel's non-compliance with the notification requirements in subsections 11PB(3) and (5) would not go to the substance of the determination itself. It would not be in a child's best interests to allow a party to argue that a determination made in accordance with the relevant statutory decision-making framework, and following a full and fair hearing process, is invalid because the Panel did not provide formal notice about the right to obtain written reasons and to appeal. For this reason, I consider that the no-invalidity clause is justified.
Having had regard to the Committee's concerns about the additional scope of the no-invalidity clause I am giving further consideration to the operation of subsection 11PB(8).

Committee comment

2.415 The committee thanks the Attorney-General for this response. With respect to the no-invalidity clause in proposed subsection 11LG(8), the committee notes the Attorney-General's advice that proposed subsection 11LG(8) is necessary to ensure that noncompliance with obligations in section 11LG cannot of itself be used to invalidate a determination, and that this is particularly important in parenting disputes—where it may be tactically advantageous for a party not to inform the Panel (or a court) about an order, notification or arrangement in relation to a child.

2.416 The committee also notes the Attorney's advice that the Panel would have broad information-gathering powers, and that the bill would ensure that the Panel is able to obtain all relevant information prior to making a parenting determination.

2.417 The committee also notes the Attorney's advice that that the bill would require the Panel to regard the best interests of the child as the paramount consideration, and that proposed section 11PA expressly requires that the Panel consider family violence when making a determination. The committee further notes the Attorney's advice that proposed section 11PH provides that if a determination is inconsistent with a State or Territory family violence order, the order would prevail, and that State and Territory courts would have the power to adjust parenting determinations to ensure consistency with subsequent family violence orders.

2.418 With respect to the no-invalidity clause in proposed subsection 11PC(7), the committee notes the Attorney's advice that proposed section 11PC is intended to improve rates of compliance by ensuring that parties are aware of their obligations. The committee notes the Attorney's advice that proposed subsection 11PC(7) recognises that a failure to comply with the requirements of proposed section 11PC does not go to the substance of a determination, that the determination must have been made in accordance with the decision-making framework in the bill, and that the process for making the determination must have been procedurally fair.

2.419 The committee further notes the Attorney's advice that the bill would amend section 70NAE of the Family Law Act 1975 to ensure that any misunderstanding by a party as to the obligations a parenting management determination creates, and the consequences that may follow a contravention of such a determination, can be appropriately taken into account in the context of any contravention proceedings.

2.420 Finally, with respect to the no-invalidity clause in proposed subsection 11PB(8), the committee notes the Attorney-General's view that the provision is also justified. The committee notes the Attorney's advice that the Panel's non-compliance with proposed section 11PB (that is, the Panel's failure to give reasons) does not go to the substance of the determination itself. The committee further notes the Attorney's advice that it would not be in a child's best interests to argue that a determination is invalid because the Panel failed to provide notice about the right to obtain reasons and to appeal—despite the determination being made in accordance with the statutory decision-making framework and following a full and fair hearing.

2.421 While noting the Attorney's advice regarding the no-invalidity clauses proposed by the bill, the committee remains concerned that the obligations to which those clauses relate (for example, to provide reasons for and to explain the consequences of a parenting determination) do not appear to be enforceable. In this regard, the committee reiterates its views (outlined in initial comments) that enforceable obligations to provide reasons for and to explain the consequences of a particular decision promote good administrative practice, guard against arbitrariness, and increase public confidence in the exercise of administrative power. A failure to provide reasons for, or the consequences of, making a parenting determination could compromise a person's right to a fair hearing.

2.422 The committee requests that the key information provided by the minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.423 In relation to the provision of reasons, the committee welcomes the Attorney-General's indication that formal notification to a party about their ability to request written reasons and their appeal rights is important and that, as a result, the Attorney-General is giving further consideration to the operation of the no-invalidity clause in subsection 11PB(8). The committee would welcome any amendment to this provision which recognises the importance of the provision of reasons.

2.424 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of including no-invalidity clauses in the bill which mean that the obligations to which those clauses relate (for example, to provide reasons for and to explain the consequences of a parenting determination) do not appear to be enforceable.

Reversal of evidential burden of proof^[160]

2.425 Proposed subsections 11PP(2), 11PQ(2), 11PR(2) and 11PS(2) create a number of offences relating to removing a child to whom a parenting management determination relates from Australia. Proposed subsections 11PP(3), 11PQ(3), 11PR(4) and 11PS(4) provide exceptions (offence-specific defences) to those offences, providing that the offences do not apply where the child leaves Australia with the consent of the parties to a parenting management hearing, in accordance with a parenting management determination or in accordance with a court order. Proposed subsections 11PP(4) and 11PQ(4)^[161] provide additional exceptions to the offences in proposed subsections 11PP(2) and 11PQ(2), providing that a person is not prohibited from taking a child outside Australia where the person reasonably believes that to do so is necessary to prevent family violence.

2.426 Proposed subsections 11PPA(2) and 11PQA(2) create offences relating to retaining a child outside Australia. Proposed subsections 11PPA(3) and 11PQA(3) provide exceptions (offence-specific defences) to those offences, providing that the offences do not apply where the person reasonably believes that to retain a child outside Australia is necessary to prevent family violence.^[162]

2.427 Finally, proposed subsections 11RA(1) and (3) create offences relating to publishing accounts or lists of parenting management hearings. Proposed subsection 11RA(4) provides an exception (offence-specific defence) to those offences, providing that the offences do not apply where specified documents are communicated to particular entities, or where the publication of a specified document is authorised by the Panel.

2.428 Subsection 13.3(3) of the Criminal Code Act 1995 provides that a defendant who wishes to rely on any exception, excuse, qualification or justification bears an evidential burden in relation to that matter.

2.429 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof require a defendant to disprove, or to raise evidence to disprove, one or more elements of an offence, interferes with this common law right.

2.430 While in each of the instances identified above the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified. The committee notes that, in relation to proposed subsections 11PP(4), 11PPA(3), 11PQ(4), 11PQA(3), 11PR(2) and 11PS(2), the explanatory memorandum does not justify the reversal of the evidential burden of proof, merely restating the effect of the relevant provisions.

2.431 In relation to proposed subsections 11PP(3) and 11PQ(3), the explanatory memorandum states that the reversal of the burden of proof is appropriate, 'as the facts in relation to how the person was 'authorised' to take or send the child to a place outside of Australia would be peculiarly within the knowledge of [the defendant].'^[163] The explanatory memorandum suggests that the defendant may, for example, be able to show an email communication with the other parent whereby the other parent gave them permission to take the child for an overseas holiday.^[164]

2.432 Regarding proposed subsection 11RA(4), the explanatory memorandum states:

It is appropriate for the burden of proof to be placed on the [defendant] as the facts in relation to why the person has published an identifying account of a hearing, would be peculiarly within the knowledge of that person, for example, to show that they were directed by a Panel member to do so.^[165]

2.433 The committee notes that the Guide to Framing Commonwealth Offences^[166] provides that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence) where:

• it is peculiarly within the knowledge of the defendant; and

• it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.^[167]

2.434 With regard to proposed subsections 11PP(3) and 11PQ(3), it is not apparent to the committee that a whether a person is permitted to take a child outside of Australia is a matter that is peculiarly within the defendant's knowledge, or that it would be significantly more costly for the prosecution to establish the matter. Moreover, the exceptions set out in proposed paragraphs 11PP(3)(b) and (c), and 11PQ(3)(b) and (c), rely on whether a parenting determination or court order has been issued. These appear to be matters of which the Panel or a relevant court would be particularly apprised, and would not appear to be matters peculiarly within the defendant's knowledge.

2.435 Similarly, it is not apparent to the committee that the matters set out in proposed subsection 11RA(4), which provide that the offences do not apply where specified documents are communicated to particular entities, or where the publication of a specified document is authorised by the Parenting Management Hearings Panel, are peculiarly within the knowledge of the defendant. The matters set out in that subsection appear to be primarily factual. For example, whether the Panel had issued a direction (contemplated by proposed paragraph 11RA(4)(e)) would appear to be a matter of which the Panel would be particularly apprised.

2.436 As the explanatory materials do not address, or do not adequately address, these issues, the committee requests the Attorney-General's advice as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in these instances. The committee's consideration of the appropriateness of a provision which reverses the burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.^[168]

Attorney-General's response

2.437 The Attorney-General advised:

I will address the Committee's concerns in three categories.
Removal of child from Australia offences
Sections 11PP, 11PQ, 11PR and 11PS of the Bill would create offences for wrongfully removing a child from Australia where a parenting determination has been made or an application is pending. These provisions replicate sections 65Y, 65Z, 65ZA and 65ZB of the Family Law Act, which make it an offence to wrongfully remove a child from Australia where a parenting order is in force or is pending.
As noted by the Committee, subsections 11PP(3), 11PQ(3), 11PR(4) and 11PS(4) of the PMH Bill provide for an exception to the offence of unlawfully removing a child, if the removal of the child was in accordance with a parenting determination; a court order; the written agreement of each party to the Parenting Management Hearing (sections 11PP and 11PQ); or the child leaves in the company, or with the written consent of, the person who made the statutory declaration (under sections 11PR and 11PS).
I am giving further consideration to these provisions; specifically, whether changes could be made to align the drafting of these provisions with the principles set out in the Guide to Framing Commonwealth Offences. The potential impact of such changes on the elements of the offences, and the evidentiary burden, is being considered.
Fleeing family violence exceptions
I note that subsections 11PP(4) and 11PQ(4), and sections 11PPA and 11PQA, are contained in Schedule 2 to the Bill and would take effect subject to the passage of the Civil Law and Justice Legislation Amendment Bill 2017.
Subsections 11PP(4) and 11PQ(4) would provide a defence of 'fleeing family violence' to the offences of removing a child unlawfully from Australia in proposed sections 11PP and 11 PQ of Schedule 1 of the Bill.
Sections 11PPA and 11PQA would replicate proposed sections 65YA and 65ZAA of the Civil Law and Justice Legislation Amendment Bill 2017. These provisions would make it an offence for a person to retain a child outside Australia otherwise than in accordance with the written consent of the other parties, or an order of a court and provide a defence of 'fleeing family violence' (consistent with the defences proposed in subsections 11PP(4) and 11PQ(4)).
These provisions of the Civil Law and Justice Legislation Amendment Bill 2017 have been the subject of significant consideration, including by the Family Law Council who recommended that the defence of' fleeing family violence' be included.^[169] The Senate Standing Committee on Legal and Constitutional Affairs, in its final report on the Civil Law and Justice Legislation Amendment Bill 2017 (10 May 2017), recommended:
"...that the Bill be amended to amend the Family Law Act 1975 to include a defence of 'fleeing from family violence' to ensure that the existing and proposed offences of unlawful removal and retention of children abroad do not apply in circumstances of family violence."
I am of the strong view that victims of family violence should not be further harmed or disadvantaged through exposure to a criminal sanction. The defence of fleeing family violence would help to protect against this, by ensuring that the existing offences in sections 65Y and 65Z of the Family Law Act, and the proposed offences of unlawfully retaining a child (proposed sections 65Y A and 65ZAA, put forward in the Civil Law and Justice Legislation Amendment Bill) do not apply in circumstances of family violence.
I consider it appropriate that the fleeing family violence defence is available for the equivalent offences in the PMH Bill 2017.
Importantly, the proposed defence will only be able to be relied on where the removal or retention of a child in breach of the offence provisions was reasonable and done in response to the defendant's perception that it was necessary to prevent family violence.
As the Committee has highlighted, at common law, it is ordinarily the duty of the prosecution to prove all elements of the offence, which is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof require a defendant to disprove, or to raise evidence to disprove, one or more elements of the offence and this interferes with the common law right.
While this is an important principle, I do not consider that this particular defence in the context of the international parental child abduction offences would interfere with the defendant's right to be presumed innocent unless proven guilty. The Parliamentary Joint Committee on Human Rights has noted that offences that reverse the burden of proof are likely to be 'compatible with the presumption of innocence where they are... reasonable, necessary and proportionate in pursuit of a legitimate objective'.^[170]
I consider that the reversal of the evidentiary burden, as provided for in subsections 11PP(4), 11PQ(4), 11PPA(3) and 11PQA(3), is reasonable and proportionate.
A specific defence of fleeing family violence is necessary because the circumstances are not sufficiently addressed by the general defences in the Commonwealth Criminal Code. The defence of self-defence in section 10.4 of the Commonwealth Criminal Code has shown to have practical impediments for defendants who have experienced family violence.^[171] The defence needs to be applied in a way that recognises the nature and dynamics of family violence which may include non-physical violence and coercive and controlling behaviour over a period of time.
To ensure that the 'fleeing family violence' defence is applied only in appropriate cases, the proposed defence includes both a subjective and objective element. The defence would be satisfied if it is reasonable to carry out the conduct constituting an offence (of removing or retaining a child overseas) (the objective element) in response to the defendant's own perceptions that it was necessary to take the action to prevent family violence (the subjective element).
Similar to self-defence, the new defence would include conduct which may constitute a reasonable response to an honest but unreasonable misapprehension of the relevant circumstances. The more unreasonable the perception, however, the more likely it is that a trier of fact will determine that this perception was not subjectively held at the time of the alleged offending. This allows the defence to apply in cases where a person believes that a serious threat may exist, but does not have the opportunity to accurately assess this threat before taking action.
The objective element would ensure that the defence is limited to situations where fleeing the country or retaining the child out of the country is a reasonable response to the feared family violence. This would likely limit the defence to scenarios that involve more serious and direct forms of family violence. The defence does not require that family violence or threats of family violence have previously occurred, although evidence of actual family violence would likely make both elements easier to prove.
Clearly the matter of whether the defendant 'believes' that the retention of the child is necessary to prevent family violence will be peculiarly within their knowledge, and it is difficult to envisage how the prosecution would be able to more readily show that the defendant did not have this belief.
For the above reasons, I consider that the reversal of the evidential burden in respect of the 'fleeing family violence' defence provided for in subsections 11PP(4), 11PQ(4), 11PPA(3) and 11PQA(3) is appropriate.
Restriction on publication of parenting management hearings offence
Section 11RA of the PMH Bill is modelled on section 121 of the Family Law Act and creates two offences for publishing identifying accounts of a parenting management hearing and publishing identifying lists of the hearings. Section 11RA restricts the publication of any accounts of Panel proceedings, or parts of any proceedings, that identify the parties or others involved in the case. The restriction applies to publication, or other dissemination, to the public or a section of the public, and can apply to disclosures online as well as through the media. A breach of section 11RA is an offence punishable by imprisonment of up to one year.
Subsection 11RA(4) sets out the circumstances in which the general prohibition does not apply. This mirrors the defences in subsection 121(9) of the Family Law Act which was introduced in 1983.
As the Committee has noted, an accused person bears the evidential burden in relation to proving that one of the circumstances applies, and this reverses the criminal law principle that the prosecution should ordinarily prove every element of the offence.
While the Committee is of the view that the range of circumstances which can be relied on as a defence appear to be primarily factual, I consider that the offence-specific defence is justified on the basis that an accused person is in the best position to discharge the burden of proof and would be readily able to do this.
The nature of the offence set out in section 121 (and mirrored in section 11RA) has been the subject of some commentary. A report by Professor Richard Chisholm on how experts' reports can be better shared between the federal family law system and the State and Territory child protection systems contained an analysis of section 121 which may assist the Committee:^[172]
The essential purpose of s.121 is to prevent the media from publishing to the public material that identify parties in family court proceedings. The substance of the section is the creation of a criminal offence: to publish or disseminate to the public or to a section of the public an account of proceedings that identifies a party or other person involved in a case.^[173]
There are numerous exceptions and elaborations. But resort to them is unnecessary unless there is a publication or dissemination of the kind specified, namely 'to the public or to a section of the public'. The case law indicates clearly that it would not include providing documents or copies of documents to a child protection officer or other person from that sector.^[174] Such people are clearly not a 'section of the public' : the communication - 'dissemination' to use the language of s.121 - is directed to individuals selected because they have a professional interest in it.^[175]
Nevertheless, presumably to put the matter beyond doubt, the section spells out that providing documents to courts and other responsible agencies is not an offence. It specifically exempts the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings.^[176] And there are other such exemptions, for example communications to legal aid. But these detailed exemptions should not distract from the basic point, namely that none of these communications would constitute an offence anyway, because they are not communications to the public or a section of the public.
I consider that it is appropriate for the evidential burden to remain on the accused person in this context. If the prosecution successfully establishes that the accused's dissemination of information is 'to the public or a section of the public', then the defendant would be in a better position to point to the evidence that the sharing of information was authorised by, for example, the need to share information with authorities of States and Territories that have responsibilities relating to the welfare of children (paragraph 11RA(4)(b)) or communication of any document to a body that is responsible for disciplining members of the legal profession in a State or Territory (subparagraph 11RA(4)(c)(i)). Given the number of defences that are available (eight in total) it would also be difficult and costly for the prosecution to prove the non-existence of a particular authorisation.
Further, I also note that subsection 11RA(5) of the PMH Bill provides that proceedings for an offence against subsections (1) or (3) must not be commenced except by, or with the written consent of, the Director of Public Prosecutions. This is consistent with subsection 121(8) of the Family Law Act which also requires the written consent of the Director of Public Prosecutions to commence proceedings for an offence relating to publishing information about court proceedings under the Act. This is an important safeguard in addition to the Prosecution Policy of the Commonwealth which requires that a prosecution only be pursued where there is sufficient evidence to prosecute the case, and the prosecution would be in the public interest.

Committee comment

2.438 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that, with respect to the exceptions to the 'removal of child from Australia offences' (in proposed subsections 11PP(3), 11PQ(3), 11PR(4) and 11PS(4)), the Attorney is giving further consideration to the provisions—and specifically whether changes could be made to align the provisions with the principles set out in the Guide to Framing Commonwealth Offences.

2.439 With respect to the 'fleeing family violence defences' (in proposed subsections 11PP(4), 11PQ(4), 11PPA(3) and 11PQA3(3)), the committee notes the Attorney-General's advice that the defences may be relied upon where the removal of the child or the retention of the child outside Australia was reasonable and done in response to the defendant's perception that it was necessary to remove the child to prevent family violence. The committee also notes the Attorney's advice that the matter of whether the defendant believes that retaining a child outside Australia is necessary to prevent family violence will be peculiarly within the defendant's knowledge, and the Attorney's views that it is difficult to envisage how the prosecution could more readily show that the defendant did not have this belief.

2.440 Finally, with respect to the defences relating to the publication of parenting management hearings (in proposed subsection 11RA(4)), the committee notes the Attorney-General's view that the offence-specific defence is justified on the basis that the accused person is in the 'best position' to discharge the burden of proof and would be readily able to do this. The committee further notes the Attorney's advice that, given the number of defences that are available under proposed subsection 11RA(4), it would also be difficult and costly for the prosecution to prove the non-existence of a particular authorisation.

2.441 The committee welcomes the Attorney-General's indication that he proposes to give further consideration to the framing of the defences in proposed subsections 1PP(3), 11PQ(3), 11PR(4) and 11PS(4). The committee further acknowledges that the defences in proposed subsections 11PP(4), 11PQ(4), 11PPA(3) and 11PQA3(3) (the 'fleeing family violence exceptions') appear to turn on whether the defendant believed that to take or to retain a child outside Australia is necessary to prevent family violence. In this regard, the committee acknowledges that the defendant's belief about a particular set of circumstances is likely to be peculiarly within the defendant's knowledge.

2.442 However, with respect to the defences in proposed subsection 11RA(4) (relating to the publication of parenting management hearings), it remains unclear to the committee that the matters to which those defences relate would be peculiarly within the defendant's knowledge. The committee reiterates its initial view that the matters in that subsection (for example, whether the Panel has issued a direction) appear to be primarily factual, and could be matters of which persons other than the defendant (e.g. the Panel) would be particularly apprised.

2.443 In this regard, the committee further notes that the Guide to Framing Commonwealth Offences provides that a matter should only be included in an offence-specific defence where it is peculiarly within the defendant's knowledge and it would be significantly more difficult for the prosecution to disprove than for the defendant to establish the matter. The committee emphasises that a defendant being in the 'best position' to discharge the burden of proof in relation to a matter does not equate to the matter being peculiarly within the defendant's knowledge.

2.444 The committee requests that the key information provided by the minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.445 With respect to the defences in proposed subsection 11RA(4), the committee draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof in that subsection.

2.446 In light of the information provided by the Attorney-General, the committee makes no further comment on the other exceptions proposed by the bill.

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[155] See correspondence relating to Scrutiny Digest No. 3 of 2018 available at: www.aph.gov.au/senate_scrutiny_digest

[156] Schedule 1, item 22, proposed subsections 11LG(8), 11PB(8) and 11PC(7) The committee draws Senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

[157] Explanatory memorandum, p. 53.

[158] Explanatory memorandum, p. 73.

[159] Explanatory memorandum, pp. 53, 73-74.

[160] Schedule 1, item 22, proposed subsections 11PP(3), 11PQ(3), 11PR(4), 11PS(4), 11RA(4). Schedule 2, item 6, proposed subsection 11PP(4); item 7, proposed subsection 11PPA(3); item 9, proposed subsection 11PQ(4); and item 10, proposed subsection 11PQA(4). The committee draws Senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[161] Proposed subsections 11PP(4) and 11PQ(4) are contingent on the commencement of relevant provisions of the Civil Law and Justice Legislation Amendment Act 2017, and will only take effect after the commencement of that Act.

[162] Proposed sections 11PPA and 11PQA are contingent on the commencement of relevant provisions of the Civil Law and Justice Legislation Amendment Bill 2017, and will only take effect after the commencement of that bill.

[163] Explanatory memorandum, p. 80.

[164] Explanatory memorandum, pp. 79-81.

[165] Explanatory memorandum, p. 90.

[166] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 50-52.

[167] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 50.

[168] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 50-52.

[169] Letters of advice to the Hon Robert McClelland MP, International Parental Child Abduction, 14 March 2011 and 5 August 2011.

[170] Parliamentary Joint Committee on Human Rights, ' Offence Provisions, Civil Penalties and Human Rights ' (Guidance Note No 2, Parliament of Australia, 2014) 2.

[171] ALRC and NSWLRC, Family Violence-A National Le!!al Response {ALRC Report 11 4), chapter 14 (in the context of the application of the general defence of self-defence to victims of family violence who kill their partners and are charged with homicide), November 2010. See also: Victorian Law Reform Commission, Defences to homicide: final report, October 2004, pp. 61–64 at [3.8]–[3.14]

[172] Information-Sharing in Family Law & Child Protection: Enhancing Collaboration: A report Professor Richard Chisholm AM, published by the Attorney-General's Department, March 2013, p. 32.

[173] Section 121(1). Section 121(2) creates a similar offence, relating to court lists, but involves the words about a section of the public.

[174] See Marriage of Tingley ( 1984) IO Fam LR 707; FLC 91-588 (the transmission of documents to the Attorney-General or departmental officers is not a communication to the public or to a section of the public); Marriage of Bateman and Pallerso11 ( 198 1) [1981] FamCA 101; 7 Fam LR 33; FLC 91-057; Marriage of P & ?(1985) [1985] FamCA 10; 9 Fam LR 1100 at 1113; FLC 91 - 605; Marriage of Toric [1981] FamCA 29; (1981) 7 Fam LR 370;FLC 91-046.

[175] Of course those people, too, are bound by s.121; but again, using the documents in the course of their work would not seem to involve disseminating them to a section of the public.

[176] Section 121(9)(a).