Family Law Amendment Bill 2023 - Commentary on Ministerial Responses [2023] AUSStaCSBSD 128 (2 August 2023)

• Family Law Amendment Bill 202313
• Undue trespass on personal rights and liberties14
• Significant matters in delegated legislation18

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Family Law Amendment Bill 2023^[13]

Purpose	This bill seeks to amend the Family Law Act 1975, with some consequential amendments to the Federal Circuit and Family Court of Australia Act 2021. These amendments seek to make the family law system safer and simpler for separating families to navigate, and seek to ensure the best interests of children are placed at its centre.
Portfolio	Attorney-General
Introduced	House of Representatives on 29 March 2023
Bill status	Before the Senate

Undue trespass on personal rights and liberties^[14]

2.29 Proposed section 114T provides that proceedings against subsections 114Q(1) or 114R(1) must not be commenced without the written consent of the Director of Public Prosecutions (DPP). This has the effect of limiting private prosecutions to individuals who have received the written consent of the DPP.

2.30 The committee initially scrutinised this bill in Scrutiny Digest 5 of 2023 and requested the minister's advice.^[15] The committee considered the minister's response in Scrutiny Digest 6 of 2023 and requested that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials 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).^[16]

Attorney-General's response^[17]

2.31 The Attorney-General advised that the explanatory materials for this bill will be updated to clarify that the prosecutorial safeguard of written consent from the DPP in relation to the offences contained under proposed subsections 114Q(1) and 114R(1) is required to prevent systems abuse as parties may commence private prosecutions for improper reasons.

Committee comment

2.32 The committee thanks the Attorney-General for this response.

2.33 The committee welcomes the Attorney-General's undertaking to update the explanatory materials to the bill to reflect the advice provided in relation to the offences under proposed subsections 114Q(1) and 114R(1).

2.34 The committee makes no further comment in relation to this issue in light of the advice provided by the Attorney-General.

Significant matters in delegated legislation^[18]

2.35 Proposed section 11K seeks to allow regulations to be made to prescribe standards and requirements for family report writers. Proposed subsection 11K(2) provides for a non-exhaustive list of matters that may be included in regulations, including paragraph 11K(2)(i) which allows for the charging of fees to family report writers for services provided to them in connection with recognition, and maintenance of recognition, of their compliance.

2.36 The committee initially scrutinised this bill in Scrutiny Digest 5 of 2023 and requested the minister's advice.^[19] The committee considered the minister's response in Scrutiny Digest 6 of 2023 and requested the Attorney-General's advice as to whether the bill can be amended to clarify that any fee made in regulations under proposed paragraph 11K(2)(i) must not be such as to amount to taxation.^[20]

Attorney-General's response^[21]

2.37 The Attorney-General advised that it is not necessary to amend the bill to include a provision that clarifies that fees made in regulations under proposed paragraph 11K(2) must not be such as to amount to taxation. The Attorney-General advised that the explanatory materials will be updated to provide greater clarity that any fee imposed on a family report writer must not be such as to amount to taxation.

Committee comment

2.38 The committee thanks the Attorney-General for this response.

2.39 While the committee is of the view that it is preferable to include clarification that fees made in regulations must not be such as to amount to taxation on the face of the bill, the committee nevertheless welcomes the Attorney-General's advice that the explanatory materials to the bill will be updated to provide greater clarity in relation to this issue.

2.40 The committee makes no further comment in relation to this issue in light of the advice provided by the Attorney-General.

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[13] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Family Law Amendment Bill 2023, Scrutiny Digest 8 of 2023; [2023] AUSStaCSBSD 128.

[14] Schedule 6, item 1, proposed sections 114Q, 114R and 114T. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

[15] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 5 of 2023 (10 May 2023) pp. 23–24.

[16] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2023 (14 June 2023) pp. 57–58.

[17] The minister responded to the committee's comments in a letter dated 29 June 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 8 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest.

[18] Schedule 7, item 4, proposed section 11K. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(iv).

[19] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 5 of 2023 (10 May 2023) pp. 24–25.

[20] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 6 of 2023 (14 June 2023) pp. 58–59.

[21] The minister responded to the committee's comments in a letter dated 29 June 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 8 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest.