Christian Porter (Pearce, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I present the explanatory memorandum to this bill and move:

That this bill be now read a second time.

The Civil Law and Justice Legislation Amendment Bill is an omnibus bill which would amend the Acts Interpretation Act 1901, the Archives Act 1983, the Bankruptcy Act 1966, the Domicile Act 1982, the Evidence Act 1995, the Family Law Act 1975, the International Arbitration Act 1974, the Legislation Act 2003, the Marriage Act 1961 and the Sex Discrimination Act 1984. The bill would make minor and technical amendments to modernise, simplify and clarify the legislation, and to repeal redundant provisions. The combined effect of these amendments would improve the efficiency and operation of the civil justice system.

The government aims to make all Commonwealth legislation coherent, readable and accessible to the widest possible audience. To this end, this bill would amend the Acts Interpretation Act and the Legislation Act to clarify the validity of ministerial acts and the management of compilations of legislation on the Federal Register of Legislation.

The government also aims to make Australia's archival record accessible to the broadest range of applicants possible. To this end, amendments to the Archives Act would assist the National Archives of Australia to appropriately manage requests for records from high-volume applicants and make other minor and technical amendments to the act. The proposed amendments would also simplify the interpretation of the Domicile Act by specifying within the act the external territories to which the Domicile Act applies. This would replace an existing specification of those territories in the regulations, and that regulation could then be repealed. The bill would also amend the Evidence Act to align the time frame for the presumed receipt of postal articles with current Australia Post delivery times.

The bill also reflects the government's commitment to maintain its place in the international legal environment by amending the International Arbitration Act to help ensure that Australian arbitral law and practice stay on the global cutting edge, so that Australia continues to gain ground as an attractive arbitration jurisdiction.

Amendments to the Sex Discrimination Act would repeal obsolete provisions. The bill would repeal the combat duties exemption in section 43 of the Sex Discrimination Act that allows discrimination against women in connection with employment, engagement or appointment in Australian Defence Force positions involving combat duties. The exemption is no longer necessary, as the Australian government's policy to remove all gender restrictions from Australian Defence Force combat roles was fully implemented on 1 January 2016. Repealing this provision is consistent with Australia's intention to withdraw its related combat duties reservation to the Convention on the Elimination of all forms of Discrimination Against Women.

Minor and technical amendments contained in the bill would improve the operation of the Family Law Act by clarifying existing laws, simplifying processes and remedying inconsistencies. The bill would make amendments to provide the same rights to de facto and married couples, when instituting maintenance or property proceedings. The bill would also amend the Family Law Act to clarify that the admissibility provisions in the Evidence Act relating to evidence obtained in an improper or illegal manner apply to disclosures of child abuse made to family consultants.

The bill would also amend the Family Law Act to provide new offences of retaining a child overseas without parental consent or a court order, and these new offences would complement the existing international parental child abduction offences which apply when a child is unlawfully removed or taken overseas. The existing international child abduction offences would also be amended to conform to current drafting practice and provide that the prosecution bears the burden of proving that consent or a court order permitting the taking of a child overseas did not exist. Further, the bill would add a new defence of fleeing family violence for these offences. The unauthorised removal or retention of a child overseas would be excused if this was to escape family violence.

The bill would assist the operation of the Family Court of Australia in a number of ways. The bill would amend the Family Law Act procedure for appointing members of the Family Court of Australia Rules Advisory Committee, to be consistent with the process for appointment of a similar committee advising the Chief Judge of the Federal Circuit Court of Australia. Other amendments to the Family Law Act would clarify the range of persons who may perform the powers of the registry managers in the Family Court of Australia and any other court. The Bankruptcy Act would be amended to clarify that the Family Court of Australia has bankruptcy jurisdiction when a trustee applies to have a binding financial agreement set aside under the Family Law Act. The bill would also make amendments to the Bankruptcy Act to ensure the bankruptcy trustee can be represented in family law proceedings relating to property of a discharged bankrupt person which is vested in the trustee.

The bill would also make minor, technical amendments to the Marriage Act. Many of these amendments are aimed at improving the operation of the Marriage Celebrants Program. These measures would enhance administrative efficiency by making improvements to the annual celebrant registration charge process. The bill would also formalise an existing expectation that marriage celebrants comply with any disciplinary measures imposed by the Registrar of Marriage Celebrants and clarify that the Register of Marriage Celebrants is the publicly available list published on the internet.

In addition, the bill would provide that, where state and territory employees are appointed according to their position title to perform functions under the Marriage Act, they may be referred to on the register by their position title rather than their individual name. The bill would also remedy a defect in the legislation to remake provisions in relation to the registrar of overseas marriages that were repealed in 2002.

In conclusion, therefore, the intention of the bill is to make minor and technical amendments to a number of acts to increase access to justice for all Australians by improving the operation and clarity of civil justice legislation. Significantly, the amendments contained within the bill would improve the civil justice system by making it easier for individuals to understand and comply with the law, and I commend the bill to the House.

Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to this | Hansard source

The majority of this bill, the Civil Law and Justice Legislation Amendment Bill 2018, makes a number of minor, technical and uncontroversial amendments to legislation relating to civil justice. The many amendments to existing legislation in this omnibus bill are intended to improve the operation and clarity of civil justice legislation, primarily by modernising, simplifying and clarifying existing provisions and by repealing redundant provisions. Some more substantial changes to existing legislation are also included in this bill, and I will discuss those amendments shortly.

The bill amends the following acts: the Acts Interpretation Act 1901, the Archives Act 1983, the Bankruptcy Act 1966, the Domicile Act 1982, the Evidence Act 1995, the Family Law Act 1975, the International Arbitration Act 1974, the Legislation Act 2003, the Marriage Act 1961 and the Sex Discrimination Act 1984. The bill was carefully scrutinised by the Senate Legal and Constitutional Affairs Legislation Committee, which reported on 10 May 2017. The committee received six submissions, which commented on the proposed changes to five of these acts, and I will discuss those comments in more detail. The committee received no comments on the remainder of the bill, which is not controversial. The committee made several substantive recommendations for improvements to the bill, subject to which the committee recommended that the bill be passed. Labor is pleased that the government is implementing those recommendations of the committee to make improvements to the bill, and Labor is supporting the bill on that basis.

The first recommendation of the committee that the government has implemented relates to the amendments to the Bankruptcy Act. Schedule 3 of the bill would make an amendment to the Bankruptcy Act that would:

… clarify that the Family Court of Australia has bankruptcy jurisdiction when a trustee applies to have a financial agreement set aside under the Family Law Act.

Some submitters raised concerns about these amendments. The Law Council of Australia noted, 'The proposed amendments do not provide jurisdiction to the Family Court in bankruptcy in circumstances where a person has been discharged from bankruptcy, albeit that their estate remains vested in the trustee in bankruptcy.' To remedy this, the Law Council recommended that the definitions of 'bankrupt' and 'bankrupt party to a marriage' be clarified. The committee agreed with the Law Council and recommended that the bill be amended. Labor is pleased that the government has accepted the Law Council's advice and acted on the recommendation of the committee by clarifying that a bankrupt:

… includes a reference to a person:

The second recommendation of the committee that the government has implemented relates to the amendments to the Family Law Act. The bill makes a significant change to Australia's response to international parental child abduction, clarifies the range of persons who may perform the powers of the Registry Managers in the Family Court, or any other court, and improves the consistency of financial and other provisions for de facto and married couples. The bill contains provisions that would create new offences regarding retaining a child outside Australia in the Family Law Act. The explanatory memorandum notes that these provisions would remedy a gap in the existing legislation.

Next, I wish to comment on the aspects of this bill that relate to family violence. The Australian Human Rights Commission raised their concerns that there are circumstances where it would be inappropriate to expose parents or others to criminal sanction for taking, sending or retaining a child outside Australia. For instance, where there is evidence, in some cases, that children are taken or retained abroad by parents fleeing family violence. An analysis of return-and-access applications under The Hague convention revealed that 70 per cent of child abductors were women and that the most common reason for the abduction was fleeing from domestic violence. The committee formed the view that the bill should be amended to include a defence of fleeing from family violence to ensure that the existing and proposed offences of unlawful transfer and retention of children abroad do not apply in circumstances of family violence. Labor is very pleased that the government has accepted this recommendation of the committee. Labor is firmly committed to responding to family violence and to supporting measures that reduce gender inequality. That is why we believe in supporting legislative reform to better deal with family violence, as well as measures to improve the capacity of the judicial system to deal with family violence. This amendment will ensure that victims of family violence who take their children overseas with them to flee their abuser will not be committing an offence.

There was considerable debate over some months between the government and the opposition about the most appropriate form for these new provisions. Most of that debate was quite technical in nature and I will not recite the many iterations of those provisions here, but I note that the final form of the amendments to several of the provisions in this bill dealing with children being taken overseas are acceptable to Labor. There has been quite some time taken between the time at which the Senate committee reported and the eventual production of this bill with appropriate amendments in this House, but it has been time spent on making sure that the provisions are in the most acceptable form possible to achieve the policy aim that the committee noted and that Labor supports.

There are further comments that I wish to make in relation to the arrest powers. The Family Law Act currently provides that a person who is authorised by the court to arrest another person has powers related to the use of reasonable force in making the arrest, and powers of entry and search for the purposes of arresting persons. In its submission to the Senate committee, the Attorney-General's Department noted that the current arrest powers in the Family Law Act are subject to fewer limits than the arrest provisions available to other federal courts, are broader than the arrest powers available to police officers in the Crimes Act 1914, and lack limits and safeguards. The bill authorises additional persons to make arrests under the Family Law Act, including a marshal, deputy marshal, sheriff or deputy sheriff, police officer or the Australian Border Force Commissioner. The bill also provides that the power to arrest another person is conferred on an APS employee in the Department of Immigration and Border Protection.

The scrutiny committee considered this bill and asked whether the bill can be amended to require a certain level of relevant training be undertaken by those APS employees authorised to exercise these coercive powers. The Australian Human Rights Commission also shared the scrutiny committee's concern. On this basis, the committee urged the government to amend the bill to limit the delegation of arrest powers so that they only applied to employees of the Australian Border Force who have received appropriate training. Labor is pleased that the government has proposed amendments to the bill which limit the APS employees authorised to exercise these powers to only employees of the Australian Border Force, in order to ensure that coercive powers are only being delegated to appropriate persons.

Finally, I come to the amendments that this bill would make to the Sex Discrimination Act. The bill repeals section 43 of the Sex Discrimination Act, which exempts discrimination against women in connection with employment, engagement or appointment in Australian Defence Force positions involving combat duties. It is an anachronistic provision. Labor fully supports this change, which removes gender restrictions from combat roles and is an important step towards equal opportunity for women. Labor is pleased to support the bill.

Christian Porter (Pearce, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I thank the honourable member for his contribution to this debate. As has been summarised, the purpose of the Civil Law and Justice Legislation Amendment Bill 2018 is to make minor, technical and uncontroversial amendments to civil justice legislation in order to improve its operation and clarity. The bill compiles minor amendments to civil law and justice legislation. Amendments to the Acts Interpretation Act and the Legislation Act would clarify the validity of ministerial actions and the operation of provisions about the management of compilations prepared for the Federal Register of Legislation. Amendments to the Archives Act would provide the National Archives of Australia with an enhanced ability to appropriately manage high-volume applications requesting access to records and would make other minor technical amendments, including repealing outdated provisions that do not affect the archives' current services or technology advances. The amendments to the Bankruptcy Act would clarify that the Family Court of Australia has bankruptcy jurisdiction when a trustee applies to have a financial agreement set aside under the Family Law Act.

An amendment to the Domicile Act would amend the act so that it applies to territories currently specified in the regulations. An amendment to the Evidence Act would update the presumption about when postal articles sent by prepaid post are received to accord with changes to Australia Post delivery times. Amendments to the Family Law Act would strengthen Australia's response to international parental child abduction, clarify the range of persons who may discharge the powers of registry managers in the Family Court of Australia and improve consistency in the application of provisions for de facto and married couples.

The bill also includes amendments to update arrest, entry and search provisions under the Family Law Act and adds additional safeguards about the exercise of those powers, which have been summarised by the shadow Attorney-General just now. The amended arrest provisions are better tailored to the needs of the Family Court and bring the provisions in line with equivalent regimes exercising arrest powers. The list of arresters under the Family Law Act would clarify those persons who can make arrests. Under the present provision, the court may authorise any person to make an arrest. The proposed list is narrower. It identifies appropriate law enforcement officers and is consistent with the list of authorised persons in the Family Law Rules and the Federal Circuit Court Rules.

It is appropriate that the list of persons who can be authorised as arresters under the Family Law Act continues to include Australian Border Force officers, who will provide support to combat instances of international child abduction. Like other law enforcement officers, Australian Border Force officers are to and do undertake structured and specialised training in arrest powers. The Australian Border Force college provides training, which includes face-to-face training with legal officers on the parameters surrounding the use of the power, discussions with experienced ABF officers who have used these powers in the past, and practical scenario training to assess an officer's understanding of the use of the power in an operational context. Only ABF officers who have received training in relation to arrest, entry and search powers and their limitations would exercise those powers in operating environments.

The bill would also make minor and technical amendments to the Family Law Act to clarify definitions and remove redundant positions. Amendments to the International Arbitration Act would specify the meaning of 'competent court' for the purpose of the model law, clarify procedural requirements for an enforcement of an arbitral award, modernise provisions governing arbitrator's powers to award cost in international commercial arbitrations and clarify the application of confidentiality provisions to arbitrations subject to the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration. Amendments to the Marriage Act would remove outdated concepts and ensure consistency with the Family Law Act in relation to parental consent for the marriage of minors.

Technical amendments of minor policy significance would also be made to improve the operation of the Commonwealth Marriage Celebrants program. The registrar of overseas marriages would also be reinstated, remedying a defect in the existing legislation. An amendment to the Sex Discrimination Act would repeal section 43 of that act to remove the ability for women to be discriminated against in connection with employment, engagement or appointment in ADF positions involving combat duties.

The bill, as has been noted, has had the benefit of the scrutiny of the Senate Legal and Constitutional Affairs Legislation Committee and the Senate Standing Committee for the Scrutiny of Bills. I would like to thank these committees for their consideration of the bill. I note the amendments responding to the issues raised by these committees were passed in the Senate.

In conclusion, this bill will make minor and technical amendments to improve the efficiency and operation of the civil justice system and provide individuals with greater access to justice. I thank the members for their contribution and commend the bill to the House.

Question agreed to.

Bill read a second time.