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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
2.1 This chapter considers the responses of ministers to matters previously raised by the committee.
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Purpose
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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.
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Portfolio
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Attorney-General
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Introduced
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House of Representatives on 22 August 2024
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Bill status
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Before the Senate
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2.2 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.[205]
2.3 In Scrutiny Digest 11 of 2024 the committee requested the Attorney-General’s advice as to remedies available to individuals whose legal rights have been limited to where lack of good faith is shown and the necessity and appropriateness of granting the whole Commonwealth immunity in this context.[206]
2.4 In relation to available legal remedies, the Attorney-General advised that the decisions to be made under the scheme will be set out in the Accreditation Rules, with the government intending that decisions affecting the rights of a party will be subject merits review and judicial review. Other legal mechanisms that may be available to parties include claims in tort, complaints to the Australian Human Rights Commission, or the Compensation for Detriment Caused by Defective Administration Scheme (CDDA).
2.5 Further, the Attorney-General noted that where the government or government officer has acted in bad faith, immunity provisions do not apply.
2.6 In response to the committee’s query on the Commonwealth, as a whole, being granted immunity to civil liability, the Attorney-General provided three justifications:
• firstly, if the Commonwealth was not granted immunity it could be held accountable for the actions of its officers, even for actions done in good faith;
• secondly, as protection against taxpayer money being used to settle claims or damages arising out of lawful and good faith actions taken by government officers;
• finally, to prevent a situation where, if the Commonwealth were subject to lawsuits for every action or decision taken in good faith by its officers, the operation of essential public services would suffer due to constant litigation.
2.7 The Attorney-General cited legal cases which supported the precedent of the Commonwealth as an immune entity, including Northern Territory v Mengel (1995) 185 CLR 307 and Commonwealth v Connell (1988) 5 NSWLR 218.
2.8 The committee notes the advice that decisions to be made under the scheme and their accompanying review mechanisms will be set out in the Accreditation Rules, and that claims in tort and other remedies are available to affected parties. The committee also welcomes the advice that compensation may be available via the CDDA. However, this does not resolve the committee’s concerns in relation to the remedies that are available to affected persons where a decision has been made against their interests in purported good faith.
2.9 In relation to the vicarious liability of the Commonwealth, the committee’s view is that it is appropriate for the Commonwealth to be liable for actions taken by its officers who are carrying out functions and making decisions on behalf of the Commonwealth, especially where those decisions may negatively affect individuals. While noting the advice that actions in tort are open to affected parties, the committee considers it is unclear how this would work in practice given the officers and the Commonwealth will have immunity from civil action. Further, the committee does not accept that the impact on public revenue should outweigh an individual’s right to seek remedies for adverse actions.
2.10 In light of the above, the committee draws to the attention of senators and leaves to the Senate as a whole the appropriateness of the bill providing that no action, suit or proceeding would lie against the Commonwealth or its officers in relation to any act done under the bill and its legislative instruments.
2.11 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.[209] 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.
2.12 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):
• if the disclosure is reasonably necessary for the purpose of complying with law;[210]
• where consent of the information communicated by an individual is provided, dependant on the individual’s age;[211] and
• where the entrusted person reasonably believes that disclosure is necessary for the protection of a child from risk of harm, to prevent threat to life or health of a person or to prevent the commission of violence.[212]
2.13 In Scrutiny Digest 11 of 2024 the committee requested the Attorney-General’s advice as to:
• whether children’s contact services workers (including volunteers) would have the appropriate skills and experience to assess when protected information must be disclosed, and what training would they be provided with in order to be able to make a fully informed assessment of when it is appropriate to disclose personal information;
• what safeguards are in place to protect privacy and what oversight mechanisms would apply once the information was disclosed; and
• examples of to whom it is intended the information will be disclosed, including how the person or body to whom the information is disclosed will handle the information, and whether further detail could be provided on the face of the bill.[213]
2.14 In relation to Children’s Contact Services workers (CCS workers), the Attorney-General advised that minimum requirements for skills, training or other attributes to maintain a CCS worker’s ability to supervise or interact with children would be included in the Accreditation Rules.
2.15 Further, the Attorney-General advised that the burden lies on service providers to ensure that ‘entrusted persons’[215] possess the appropriate skills, experiences, and training to assess when protected information must be disclosed. The Attorney-General provided examples of how service providers may upskill staff for roles within a Children’s Contact Service such as long-term tertiary qualifications, training modules, staff training, induction programs or ongoing professional development.
2.16 In relation to safeguards and oversight mechanisms relating to disclosed personal information, the Attorney-General drew the committee’s attention to proposed section 10KE of the bill which sets out the definitions of ‘entrusted persons’ as well as the responsibilities attributed to that class of individual.
2.17 The Attorney-General noted that ‘the exact operational measures’ for implementing the provisions was the responsibility of service providers, who would be required to comply with guidelines found in the Accreditation Rules, made after the bill’s passage through Parliament. In terms of oversight mechanisms, the Attorney-General advised that that a ‘comprehensive accreditation framework will be developed in consultation with the sector and key stakeholders’, and that providers will remain subject to penalty under section 10KG.
2.18 In providing examples to the committee in relation to whom personal information could be disclosed, the Attorney-General listed ‘police, courts, or court-appointed officials, such as Independent Children’s Lawyers.’ The Attorney-General noted in addition that specific provisions may require other legal obligations for notifying child protection authorities. However, besides these examples, information is only able to be disclosed with consent from the affected party or by authorised personnel within the organisation, as necessary to deliver children’s contact services.
2.19 The Attorney-General also noted that the provision did not oblige a CCS to share information outside of any legal obligations.
2.20 The committee thanks the Attorney-General for this response. The committee is concerned with the advice that most, if not all, of the conditions for skills, training or attributes which will qualify a CCS worker to engage with children is being left delegated legislation. The committee reiterates its long-standing scrutiny position that significant matters should be included in primary legislation unless a sound justification for the use of delegated legislation is provided.
2.21 Noting that CCS workers, including volunteers, would be disclosing safety 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, the committee is of the opinion that the requirements for an individual to be qualified in this setting should be set out in primary legislation. In addition, the committee notes that the Attorney-General’s response does not include a justification for why these requirements will be set out in delegated legislation.
2.22 The committee does not consider it appropriate in this context for the ‘onus’ of ensuring entrusted persons for service providers are appropriately qualified to rest on service providers. These matters are more appropriate for parliamentary consideration and should be set out in legislation to ensure that a consistent standard is applied by all CCS providers.
2.23 In relation to the Attorney-General’s advice on safeguards and oversight mechanisms for privacy and information disclosure, the committee notes the privacy protections in proposed section 10KE and reiterates its consistent scrutiny concern in leaving significant matters such as privacy protections for child and family information to the Accreditation Rules.
2.24 Finally, the committee welcomes the Attorney-General’s examples of classes of persons to whom information is intended for disclosure. The committee also welcomes the confirmation that the provision does not oblige information sharing beyond what is legally required. It is, however, unclear to the committee whether the classes of specified recipients are specified in legislation or merely more generally intended recipients. The committee’s preferred position is that such matters should be set out in legislation.
2.25 In light of the above, the committee draws to the attention of senators and leaves to the Senate as a whole the appropriateness of proposed section 10KE regarding issues of privacy and significant matters in delegated legislation.
2.26 The committee requests 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.[216]
2.27 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.[218] The offence would carry a penalty of 50 penalty units and would be subject to strict liability. Further, the bill provides offence-specific defences for these offences which reverse the evidential burden of proof.[219] The defences require that the defendant provide evidence about their mistaken but reasonable belief about certain matters relevant to the offence.
2.28 In Scrutiny Digest 11 of 2024 the committee requested an addendum to the explanatory memorandum containing a justification for the strict liability and reversed burden provisions within the bill and left the matter as a whole to the Senate for consideration.[220]
2.29 The Attorney-General advised that the requested addendum would be provided as soon as possible, and noted this would happen following consultation with the Parliamentary Joint Committee on Human Rights, should that committee also suggest amendments to the explanatory memorandum.
2.30 The committee welcomes the Attorney-General’s undertaking to provide an addendum to the explanatory memorandum.
[203] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Family Law Amendment Bill 2024, Scrutiny Digest 13 of 2024; [2024] AUSStaCSBSD 206.
[204] 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).
[205] Proposed section 10AA. The Accreditation Rules are prescribed by the regulations as empowered by section 10A of the Family Law Act 1975.
[206] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 11 of 2024 (11 September 2024) pp. 2–4.
[207] The minister responded to the committee’s comments in a letter dated 23 September 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 13 of 2024).
[208] Schedule 2, item 15, proposed section 10KE. The committee draws senators’ attention to this provision pursuant to Senate standing order 23(1)(a)(i).
[209] 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.
[210] Schedule 2, item 15, proposed subsection 10KE(4).
[211] Schedule 2, item 15, proposed subsection 10KE(7).
[212] Schedule 2, item 15, proposed subsection 10KE(8).
[213] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 11 of 2024 (11 September 2024) pp. 2–4.
[214] The minister responded to the committee’s comments in a letter dated 23 September 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 13 of 2024).
[215] Schedule 2, item 1, definition of ‘entrusted person’ and item 15, proposed subsection 10KE(2).
[216] See Acts Interpretation Act 1901, section 15AB.
[217] Schedule 2, item 15, proposed subsection 10KH(1) – (9). The committee draws senators’ attention to these provisions pursuant to Senate standing order 23(1)(a)(i).
[218] Schedule 2, item 15, proposed subsection 10KH(1).
[219] Schedule 2, item 15, proposed subsections 10KH(4),(7) and (9).
[220] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 11 of 2024 (11 September 2024) pp. 7–9.
[221] The minister responded to the committee’s comments in a letter dated 23 September 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 13 of 2024).
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URL: http://www.austlii.edu.au/au/other/AUSStaCSBSD/2024/206.html