Family Law Amendment Bill 2023 [2023] AUSStaCSBSD 74 (10 May 2023)

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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 will make the family law system safer and simpler for separating families to navigate, and ensure the best interests of children are placed at its centre.
Portfolio	Attorney-General
Introduced	House of Representatives on 29 March 2023

Reversal of the evidential burden of proof^[39]

1.78 Item 6 of Schedule 6 to the bill seeks to insert proposed Part XIVB into the Family Law Act 1975 (the Act) which aims to simplify and clarify the scope and operation of the restrictions on the public communicating identifiable information that relates to family law proceedings.

1.79 Proposed subsection 114Q(1) provides that it is an offence for a person to communicate to the public an account of family law proceedings and the account identifies certain people involved in the proceedings. 'Communicate' means communicate by any means, including by publication in a book, newspaper, magazine or other written publication; broadcast by radio or television; public exhibition; broadcast or publication or other communication by means of the internet.^[40] Proposed subsection 114Q(2) provides an exception (offence-specific defence) to this offence, stating that the offence does not apply if the communication of an account of family law proceedings was in accordance with a direction of a court or otherwise approved by a court.

1.80 Similarly, proposed subsection 114R(1) provides that it is an offence for a person to communicate to the public a list of proceedings that are to be dealt with under the Act that identifies the parties to the proceedings by reference to their names. Proposed subsection 114R(2) provides that this offence does not apply if the communication is the publication by the court, officer or tribunal of a list of proceedings which that court, officer or tribunal is dealing with, or if the communication was in accordance with a direction of a court or the applicable Rules of Court.

1.81 Both offences would be punishable by up to one year imprisonment. A defendant would bear the evidential burden of proof in relation to the defences listed above.

1.82 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 and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.

1.83 The committee expects any such reversal of the evidential burden of proof to be justified and for the explanatory memorandum to address whether the approach taken is consistent with the Guide to Framing Commonwealth Offences, which states that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence) where:

1.84 The explanatory memorandum does not justify why the matters in proposed subsections 114Q(2) and 114R(2) have been included as a defence, with the consequence that the defendant bears the evidential burden of proof. It simply restates the provisions and refers to the principle codified in subsection 13.3(3) of the Criminal Code.^[42] Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter. While the Criminal Code provides that it is the defendant who bears the evidential burden when relying on a defence, this is not in itself a justification for including the matter as a defence rather than being specified as an element of the offence. If the matter were included as an element of the offence, the defendant would not bear the evidential burden.

1.85 In this case, it is not apparent that the relevant matters would be peculiarly within the defendant's knowledge, or that it would be more difficult or costly for the prosecution to establish the matters than for the defendant to establish them. For example, it appears that whether a court has published a list of proceedings or whether a communication was in accordance with the applicable Rules of Court, would be matters that are readily ascertainable by the prosecution. It is therefore not clear why these matters are included as defences rather than as elements of the offence.

1.86 As the explanatory materials do not adequately address this issue, the committee requests the Attorney-General's detailed justification as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in relation to an offence under proposed subsections 114Q(2) and 114R(2). 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.^[43]

1.87 The committee suggests that it may be appropriate for the bill to be amended to provide that these matters are specified as elements of the offence. The committee also requests the Attorney-General's advice in relation to this matter.

Undue trespass on personal rights and liberties^[44]

1.88 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).^[45] This has the effect of limiting private prosecutions to individuals who have received the written consent of the DPP.

1.90 The committee considers that restricting the ability of an individual to initiate a private prosecution on their own volition risks unduly trespassing personal rights and liberties and expects this to be justified in the explanatory materials. In this case, the explanatory memorandum explains that proposed section 114T 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'.^[47]

1.91 While the committee considers that it may be justifiable to restrict private prosecutions in some circumstances, it is not clear to the committee what proposed section 114T is intended to safeguard against. If the concern is that an individual may bring a case with little evidence, the committee notes that this may more appropriately be dealt with by the courts and, further, that the DPP has the power to intervene in a private prosecution where there is insufficient evidence to justify the prosecution. It is therefore unclear to the committee why it is considered necessary and appropriate to rely on the DPP to provide consent to commence a proceeding under subsections 114Q(1) and 114R(1).

1.92 In light of the above, the committee requests the Attorney-General's detailed advice as to why it is considered necessary and appropriate to restrict the commencement of proceedings under subsections 114Q(1) and 114R(1) by requiring the written consent of the Director of Public Prosecutions.

Significant matters in delegated legislation^[48]

1.93 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.

1.94 The committee considers that it is for the Parliament, rather than the makers of delegated legislation, to set rates of tax. At a minimum, some guidance in relation to the amount of a fee that may be imposed in delegated legislation should be included in the enabling Act. Where a bill leaves the setting of the rate of a fee to delegated legislation, the committee expects the explanatory memorandum to the bill to address why it is appropriate to do so. Further, if there is no limit on the amount of the fee that may be imposed, the explanatory memorandum should include why it would not be appropriate to include such a limitation on the face of the bill. The committee also expects that the bill will include a provision clarifying that the fee must not be such as to amount to taxation.

1.95 In this instance, the explanatory memorandum explains that any fees set in regulations under proposed paragraph 11K(2)(i) would reflect the services provided to family report writers to recognise their compliance with prescribed standards and requirements. The regulations would not establish fees to recover other costs associated with the general administration of a regulatory scheme.^[49]

1.96 While acknowledging the explanation in the explanatory memorandum, the committee expects that, at a minimum, the bill should include a provision stating that the fee must not be such as to amount to taxation.

1.97 In light of the above, the committee requests 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.

[38] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Family Law Amendment Bill 2023, Scrutiny Digest 5 of 2023; [2023] AUSStaCSBSD 74.

[39] Schedule 6, item 6, proposed subsections 114Q(2) and 114R(2). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).

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

[46] Commonwealth Director of Public Prosecutions, Prosecution Policy of the Commonwealth – Guidelines for the making of decisions in the prosecution process (August 2014) p. 11.

[48] Schedule 7, item 4, proposed paragraph 11K(2)(i). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(v).

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests