Family Law Amendment Bill 2024 - Initial Scrutiny [2024] AUSStaCSBSD 174 (11 September 2024)

1.1 The committee comments on the following bills and, in some instances, seeks a response or further information from the relevant minister.

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Family Law Amendment Bill 2024^[1]

Purpose	This bill seeks to amend the Family Law Act 1975 and make consequential amendments to the Evidence Act 1995, Federal Circuit and Family Court of Australia Act 2021, Federal Proceedings (Costs) Act 1981, Child Support (Registration and Collection) Act 1988 and Child Support (Assessment) Act 1989. Schedule 1 seeks to amend the property framework in the Family Law Act 1975 to codify aspects of the common law and ensure the economic effects of family violence are considered in property and spousal maintenance proceedings. Schedule 2 seeks to provide a regulatory framework for Children’s Contact Services. Schedule 3 seeks to improve case management in family law proceedings by, amongst other matters: permitting the family law courts to determine if an exemption to the mandatory family dispute resolution requirements applies; safeguarding against the misuse of sensitive information in family law proceedings; and amending Commonwealth Information Order powers and expanding the category of persons about which violence information must be provided to the family law courts in child related proceedings. Schedule 4 seeks to insert definitions of ‘litigation guardian’ and ‘manager of the affairs of a party’, remake costs provisions, and require superannuation trustees to review actuarial formulas used to value superannuation interests to ensure courts have access to accurate and reasonable valuations. Schedule 5 provides for review of the operation of the bill and tabling of a report of the review in the Parliament.
Portfolio	Attorney-General
Introduced	House of Representatives on 22 August 2024
Bill status	Before the House of Representatives

Immunity from civil liability^[2]

1.2 The bill provides that no action, suit or proceeding would lie against the Commonwealth or its officers in relation to any act done, or omitted to be done, in good faith in the performance or exercise of, or the purported performance or exercise, of a function, power or authority conferred by the Accreditation Rules.^[3]

1.3 This therefore removes any common law right to bring an action to enforce legal rights (for example, a claim of defamation), unless it can be demonstrated that lack of good faith is shown. The committee notes that in the context of judicial review, bad faith is said to imply the lack of an honest or genuine attempt to undertake a task. Proving that a person has not engaged in good faith will therefore involve personal attack on the honesty of a decision-maker. As such the courts have taken the position that bad faith can only be shown in very limited circumstances.

1.4 The committee expects that if a bill seeks to provide immunity from civil liability, particularly where such immunity could affect individual rights, this should be soundly justified.

It is considered reasonable and appropriate to indemnify officers of the Commonwealth against actions for negligence arising from a good faith policy decision as to a person or entity’s compliance with the Accreditation Rules, made in the performance of their duties and based on information provided by that person or entity.

Section 10AA is not intended to provide immunity for bad faith or unreasonable actions taken in purported performance of a function or duty or exercise of power.^[4]

1.6 While the committee acknowledges the explanation in relation to individual officers, the committee is concerned that the explanatory memorandum does not address why it is necessary and appropriate for the Commonwealth as a whole to be provided with civil immunity in relation to actions taken or powers conferred under the Accreditation Rules. This is a broad immunity and in this instance, the committee expects that a sound justification should be provided. Further, the committee expects that the explanatory memorandum should address whether any alternate remedies are available for persons prevented from bringing a civil suit.

Privacy^[5]

1.8 The bill makes provision for the protection of certain safety-related information held by entrusted persons who are children’s contact services (CCS) practitioners or businesses.^[6] Safety information would be information that relates to the risks of harm to a child or a member of a child’s family, or to the identification and management of such risks in relation to the provision of children’s contact services.

1.9 The bill sets out a range of exceptions as to when an entrusted person would be able to disclose safety information, including (but not limited to):

1.10 The committee welcomes these privacy protections for safety information. In relation to these matters the explanatory memorandum states:

The restriction on disclosure is important for many reasons including the safety of the parties, the integrity of any family law proceedings, and the best interests of the children. In the context of privacy and reputation, these provisions are important as they satisfy obligations laid out in the ICCPR and the CRC, by ensuring that individuals utilising CCS are able to do so without concern that their privacy or reputation will be illegally or arbitrarily compromised. It also creates a protective mechanism, where separated parties may trust that information provided to the CCS, for the purpose of service provision, cannot be accessed by another party from whom the original party is seeking to have that information withheld, particularly where they have concerns that sharing this information may introduce risks to their safety or ability to live freely within the community.

The section contains necessary exceptions which allow for use or disclosure of safety information in circumstances where the entrusted person is required to comply with a Commonwealth, state or territory law or where there are serious and imminent risks to persons or property. The entrusted person may also use or disclose safety information to assist an ICL to represent a child’s interests, or if the relevant party provided consent for the disclosure.

In the interests of ensuring all measures are reasonable, necessary and proportionate, new paragraphs 10KE(8)(d) and (e) which relate to threats against property rather than persons, require specific mention. The permitted general situations under section 16A of the Privacy Act include a condition that allows for the collection, use and disclosure of personal information if it is necessary to lessen or prevent a serious threat to the life, health or safety of any individual, or to public health or safety.^[10]

1.11 However, while noting the generally positive nature of these protections, there is potential for this highly sensitive information to be shared for a number of purposes as set out on the face of the legislation. While these circumstances are generally (and appropriately) limited to situations in which the disclosure is for the prevention of harm, whether the disclosure is necessary relies on the perception or assessment of the children’s contact services worker as to the level of risk of harm or violence that may exist in the circumstances. As such, the committee expects that the explanatory memorandum would set out relevant information as to how such an assessment would be made, such as whether the individuals making this assessment would have relevant skills, training or experience. This is especially pertinent in relation to provisions in the bill which relate to an assessment of whether the child is at risk of psychological harm.^[11]

1.12 An ‘entrusted person’ (who is able to disclose such information) is defined as a CCS practitioner or business or their director or someone employed or engaged to perform work (whether paid or unpaid) for a CCS business.^[12] CCS practitioners and CCS businesses are those that are accredited to provide children’s contact services. These are defined as services that facilitate contact between a child and a member of their family with whom they are not living, and are provided where members of the family may not be able to safely manage such contact. They are provided either on a professional basis, a commercial basis, or as a charitable enterprise.^[13] Such services will need to be accredited under the Accreditation Rules. As such, a relatively broad class of persons would be authorised to disclose confidential safety information, including volunteers who work with children’s contact services. Further, the committee notes that the CCS industry has until now been unregulated and the requirements for accreditation will be set out in delegated legislation, which makes it more difficult for the committee to assess the appropriateness of these provisions.

1.13 Further, while the bill sets out the permitted disclosures of the information, it does not clarify who the information should be disclosed to in the relevant contexts, nor whether any limit exists as to the persons or bodies that the information may be disclosed to. In addition, it is unclear whether persons or bodies who are the recipients of disclosed information would themselves have a duty to disclose that information, and if so, to whom. Again, this level of information would have been helpful if included in the explanatory memorandum.

Reversal of the evidential burden of proof
Strict liability offences^[14]

1.15 The bill imposes a range of offences in relation to a failure for children’s contact services to be accredited as per the Accreditation Rules, or for employees of CCS organisations failing to hold accreditation. For example, an individual would commit an offence if they provide a children’s contact service, and the Accreditation Rules provide for accreditation of CCS practitioners, and the individual is not a CCS practitioner.^[15] The offence would carry a penalty of 50 penalty units and would be subject to strict liability.

1.16 Under general principles of the common law, fault is required to be proven before a person can be found guilty of a criminal offence. This ensures that criminal liability is imposed only on persons who are sufficiently aware of what they are doing and the consequences it may have. When a bill states that an offence is one of strict liability, this removes the requirement for the prosecution to prove the defendant's fault. In such cases, an offence will be made out if it can be proven that the defendant engaged in certain conduct, without the prosecution having to prove that the defendant had the intention to engage in the relevant conduct or was reckless or negligent while doing so. As the imposition of strict liability undermines fundamental common law principles, the committee expects the explanatory memorandum to provide a clear justification for any imposition of strict liability, including outlining whether the approach is consistent with the Guide to Framing Commonwealth Offences (the Guide).^[16] The committee notes in particular that the Guide states that the application of strict liability is only considered appropriate where the offence is not punishable by imprisonment and only punishable by a fine of up to 60 penalty units for an individual.^[17]

1.17 In this instance the committee welcomes that the penalty amount falls beneath the threshold of 60 penalty units set out in the Guide. Further, due to the nature of the offences the committee accepts that strict liability is likely to be appropriate in this context. However, the explanatory memorandum should have set out further information as to how the elements of each of the offences are suitable for the imposition of strict liability with reference to the guidance set out in the Attorney-General’s Guide.

1.18 Further, the bill provides offence-specific defences for these offences which reverse the evidential burden of proof.^[18] The defences require that the defendant provide evidence about their mistaken but reasonable belief about certain matters relevant to the offence.

1.19 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, interfere with this common law right.

1.20 The committee notes that the Guide to Framing Commonwealth Offences 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:

1.21 The committee reiterates its consistent scrutiny view that adherence to these principles would assist to keep to a minimum the number of provisions that impose a burden of proof on a defendant, and that any such reversal of the evidential burden of proof should be justified with reference to the principles in the Guide.

1.22 In this instance there is no justification provided as to whether these matters are peculiarly within the knowledge of a defendant nor whether they would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. Again, the committee notes that it is likely appropriate for the evidential burden of proof to be reversed in these defences where the defendant needs to provide evidence of their state of mind. However, the explanatory memorandum should have provided detailed justification against the principles in the Guide in order for the committee and the Senate to best assess the appropriateness of these measures.

1.23 The committee requests that an addendum to the explanatory memorandum containing a justification of these strict liability and reverse burden provisions 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.^[20]

1.24 The committee draws to the attention of senators and leaves to the Senate as a whole the appropriateness of the imposition of strict liability for certain offences^[21] and the reversal of the evidential burden of proof for certain defences.^[22]

^[1] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Family Law Amendment Bill 2024, Scrutiny Digest 11 of 2024; [2024] AUSStaCSBSD 174.

^[2] Schedule 2, item 14, proposed section 10AA of the Family Law Act 1975. The committee draws senator’s attention to this provision pursuant to Senate standing order 23(1)(a)(i).

^[3] Proposed section 10AA. The Accreditation Rules are prescribed by the regulations as empowered by section 10A of the Family Law Act 1975.

^[5] Schedule 2, item 15, proposed section 10KE. The committee draws senators’ attention to this provision pursuant to Senate standing order 23(1)(a)(i).

^[6] Children’s contact services are third-party providers who provide children of separated parents with a safe place to maintain contact with both parents or other family members where it would have otherwise been unmanageable without assistance.

^[12] Schedule 2, item 1, definition of ‘entrusted person’ and item 15, proposed subsection 10KE(2).

^[14] Schedule 2, item 15, proposed subsections 10KH(1) – (9). The committee draws senators’ attention to these provisions pursuant to Senate standing order 23(1)(a)(i).

^[21] See Schedule 2, item 15, proposed subsections 10KH(1),(2),(3),(5),(6) and (8).

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