David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

This Bill responds to uncertainty about the legal status of de facto property and maintenance orders which were made by the Family Court of Australia and the Federal Magistrates Court in the absence of a Proclamation permitting the exercise of jurisdiction under the Family Law Act 1975.

It will apply to orders that have been made by those courts between 1 March 2009 and 10 February 2012 in New South Wales, Victoria, Queensland, Tasmania, Australian Capital Territory, Northern Territory and Norfolk Island and between 1 July 2010 and 10 February 2012 in South Australia.

Orders in relation to marriage and children are not affected. Likewise, de facto property and maintenance orders made in Western Australia are not affected as Western Australia has not referred its powers in these areas to the Commonwealth.

The Bill will also clarify the status of orders that have been made by the Family Court of Australia on appeals from Family Law Magistrates in Western Australia. These orders have been made between 1 July 2006 and 20 October 2011 in the absence of a similar Proclamation permitting the exercise of jurisdiction to hear these appeals.

Proclamations have since been made to ensure that there is no doubt about the validity of orders made by the federal family courts from 11 February 2012 for de facto property matters and from 21 October 2011for appeals from Family Law Magistrates in Western Australia.

The Bill will provide clarity to the status of orders that have been made prior to the respective Proclamations being made. This will be done by creating new statutory rights and liabilities that mirror the rights and liabilities that would have been created if Proclamations had been made at the time the respective jurisdiction was originally conferred.

The new rights and liabilities created by the Bill are exercisable and enforceable, and are to be regarded as always having been exercisable and enforceable, in exactly the same way as if the orders had been validly made.

This means that anything done or not done in reliance on the new statutory rights and liabilities will be taken to be valid.

The Bill explicitly recognises that individuals had and have the right to appeal against, or to seek review of an affected order and the right to vary affected orders in later court proceedings.

The provisions of the Bill do protect the outcomes of proceedings which have been completed where a court has set aside or declared an earlier order to be invalid or to have been made beyond power. To that end, it respects that this process, usually by way of an appeal, will have addressed defects in orders and will not supplant the rights and liabilities which would have flowed from their original order over those that currently exist. Where individuals have invested the time and gone to the expense of appealing their orders, this must be respected.

The measures in this Bill will ensure that all persons who may have been affected by the absence of a Proclamation have no uncertainty about the legal status of what they had thought to be valid orders of the court. This Bill will prevent affected individuals from having to go back to court to seek new orders or appeal existing ones.

Repeal subsections 40(1) and (2) of the Family Law Act

Finally, the concerns relating to the validity of these orders were caused by the absence of a rare type of Proclamation required under section 40 of the Family Law Act.

The original requirement for a Proclamation under section 40 of the Family Law Act was to allow for the ‘phasing in’ of the jurisdiction of the Family Court in 1976.

As the Family Court is now well-established, subsections 40(1) and (2) of the Family Law Act no longer serve any purpose.

To avoid future oversights, the Bill will repeal subsections 40(1) and (2), which will remove any need for this rare type of Proclamation in the future.

The Bill substitutes a new subsection 40(1) which provides for the making of regulations to restrict the exercise of jurisdiction conferred on the Family Court in appropriate circumstances. The most obvious of these is in relation to the State Family Court in Western Australia. That court has been invested with federal jurisdiction and the subsection 40(2) Proclamations have been used to restrict, by not providing for, the Family Court to exercise original jurisdiction in that State.

The Government intends to maintain that status quo and will use the regulation making power to ensure no unintended consequences flow from repealing subsections 40(1) and (2) in their current form.

Departmental Processes

The need for this legislation arises from administrative oversights by the Attorney-General’s Department when the two areas of jurisdiction were originally conferred on the family courts. The Department should have briefed the Attorney General of the time of the need to advise the Governor-General to make a Proclamation under section 40 of the Family Law Act 1975. In both instances, being 2006 and again in 2009, this was not done.

Thus, in addition to amending the legislation to prevent a similar oversight occurring again, the Attorney-General has asked the Department’s Secretary to conduct an audit of the processes within the Department that ensure that all legislative requirements are met. The Attorney-General is determined to make sure that a similar oversight does not happen again, as small administrative errors like this one can have significant repercussions for the individuals they affect.

Conclusion

The swift passage of the bill will give back legal certainty to all those people who may have been adversely affected by the absence of this type of Proclamation.

I commend the Bill.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

The opposition supports the Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012, but there is a second reading amendment which I understand is being circulated in the chamber, which I will read:

… but the Senate notes and condemns the incompetence of the Government in:

(a) failing for almost three years to proclaim the relevant provisions of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, thereby needlessly permitting invalid orders to be made by the federal family courts and throwing the financial affairs of thousands of Australians into confusion;

(b) failing to act promptly to correct the problem after it was first brought to its attention; and

(c) failing to immediately bring remedial legislation before this Parliament".

Let me explain what this is about. In 2008, the Family Law Act was amended by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act, with the support of the Liberal and National parties. The most important aspect of that bill was to vest in the federal family courts—that is, the Family Court of Australia and the Federal Magistrates Court, which in the exercise of its family law jurisdiction in fact deals with most family law matters in Australia today—jurisdiction in relation to de facto as well as matrimonial dissolutions. In relation to de facto couples, both opposite-sex and same-sex de facto couples would, in the event of a termination of their relationship, thereafter have their affairs dealt with by the Family Court or the Federal Magistrates Court. So the distinction for jurisdictional purposes—and, I emphasise, only for jurisdictional purposes—between married couples and de facto couples was eliminated.

It is more than three years since that bill was passed into law and received the royal assent at the end of 2008, but, as is commonplace in legislation of this kind, provision was made for the bill to come into operation on a date to be fixed by proclamation. The Family Court and the Federal Magistrates Court, from the beginning of 2009, proceeded to deal with their new jurisdiction. In the more than three years since, thousands and thousands and thousands of de facto couples, whether opposite-sex couples or same-sex couples, have gone before those courts when, sadly, their relationships have come to an end, and those courts have made orders in respect of, among other things, the property of the de facto couples. Obviously, because they are de facto couples, no order need be made for the dissolution of a marriage—that goes without saying—but this jurisdiction is important because, in a practical sense, it is important in relation to property disputes in particular and also in relation to care of and responsibility for infants in the relationship. At the end of last year, a Family Court judge in Melbourne discovered that the act had never been proclaimed. It never came into operation as it was meant to do. As a result, the jurisdiction which the Family Court and the Federal Magistrates Court had purported to exercise was jurisdiction that in fact they did not have, because the final step to make the act law and in operation had been overlooked by the government. That is an extraordinary turn of events. The purpose of this act is to retrospectively correct that oversight so that, by force of this act, all orders and decrees of the Family Court and the Federal Magistrates Court in relation to de facto couples which were made on the basis of the erroneous assumption that the jurisdiction of the court had commenced will be validated and the affairs of those people and of third parties who have dealt with them, particularly in relation to their property, will be regularised.

The opposition has no difficulty supporting this bill, just as we supported the bill to retrospectively validate decisions of the Australian Military Court after it was struck down by a decision of the High Court in Lane and Morrison. We have no difficulty at all regarding this as an urgent matter which should be given swift passage through the parliament, which is why it has been listed in this bracket of business. But we do not let the occasion go by without noting three things. First of all, there is the extraordinary systemic incompetence that would allow an act of this importance, affecting so many thousands of Australians in the most personal aspect of their affairs, to go unproclaimed. How incompetent does a government have to be that it forgets to proclaim its own legislation, particularly legislation of this social importance affecting so many people?

We learned not long after the election of Mr Rudd as the Prime Minister that the cabinet office and the Prime Minister's office had become a train wreck of confusion, maladministration, deadlock and paper piling sky-high on the cabinet office desk. One of the consequences of that sheer administrative hopelessness was this bill. And the victims were the thousands upon thousands of Australians whose affairs were thrown into chaos, and whose affairs will be regularised now when this bill before the parliament today is passed.

Secondly, almost as astonishing as the fact that this could have happened in the first place, is the fact that evidently there were no systems in place to make sure there was a fail-safe mechanism to ensure that, if a mistake like this were made, it was swiftly detected. This mistake was never detected. It was detected as a result of a point taken by an individual judge in a random case three years after the fact, at the end of last year. But for the industry of that particular Family Court judge this could have gone on for years on end, and it would not have been tens of thousands people affected; it would have been potentially hundreds of thousands.

It is a salutary lesson that, when we in the Liberal Party accuse the Labor Party of incompetence, it is not just a debating point, it is not just being political; incompetence has its costs. The failure of a government and in particular a government at the highest level, the cabinet office, to have proper systems in place can have very direct consequences for citizens. Those who are responsible for this oversight and, just as much, those who are responsible for the failure to establish oversight systems to immediately identify and correct such an omission, should be ashamed of themselves.

Ultimately ministers have to take responsibility for what happens on their watch. We are yet to hear any minister in this government—whether the former Prime Minister, Mr Rudd, on whose watch the initial mistake was made, or the current Prime Minister, Ms Gillard, on whose watch the oversight was allowed to continue, or the former Attorney-General who had the carriage of the matter, or the new Attorney-General—actually express regret, actually make an apology to the thousands and thousands of innocent people affected by this. One would have thought that as a matter of ordinary decency there would have been an apology, but apology was there none. The third thing that disappoints me as the shadow Attorney-General is that, the moment this was identified, there was no communication directly from the government to the opposition, from the Attorney-General to me, to say, 'We have discovered this terrible oversight. It is an oversight that can be corrected very simply by remedial legislation. We need to move as swiftly as possible in order to regularise the affairs of the tens of thousands of people affected. Will you give it your swift cooperation?' There was no such communication at all. And of course not for a moment would we have failed to cooperate, because we do not want to see Australians who have been before the Family Court or the Federal Magistrates Court damaged or have their affairs left in disorder as a result of the incompetence of the government. So, although we chastise the government for their incompetence, we afford them complete cooperation with the swift passage of the remedial legislation.

You would have expected there would have been such a communication to the opposition in these circumstances but there was none. The matter came to light only after the Australian newspaper got hold of the decision of the Family Court judge who discovered the problem. Senator Feeney, I know it is not your fault—you were not a minister at the time but you answer for the government in the Senate this afternoon—but perhaps you could explain to us why it is that we have had to wait until the final hours of the very last day of the summer parliamentary sitting of 2012 to deal with this. It should have been dealt with on the first day, or certainly the first week, of the 2012 sittings, not on the last day of the first sittings of the parliament for 2012. So, with the remedial legislation having been kept silent from the opposition, the government did not even act with appropriate swiftness to deal with the problem when it was alerted to it. We have had several parliamentary weeks in these sittings until, at last, in the closing hours of the sittings, the government is dealing with the matter.

As I said, the opposition in this place, as we did in the House of Representatives, offer the government swift passage of this bill, and we will not delay the passage of the bill by dividing on the second reading amendment. But I do make the point that for a government to have been so incompetent as to fail to proclaim its own legislation; to have been so doubly incompetent as not to have mechanisms, systems, in place within the cabinet office and higher echelons of the government and the relevant department to ensure that mistakes like this were discovered quickly; to not communicate with the opposition immediately, once the mistake was discovered after three years, and then to drag its heels until the last day of the first sittings for 2012 of the parliament to fix the problem, while all the time tens of thousands of citizens have their affairs in chaos until the remedial legislation is passed, is a standard of performance below that which people are entitled to expect of a government. Incompetence has its costs, but usually it is a political cost. The incompetent ministers suffer the political penalty of chastisement but not always do innocent third parties suffer. On this occasion tens of thousands of Australians have suffered. It is not good enough.

Having made those observations, and having invited the parliamentary secretary to offer an apology on behalf of his government and an explanation as to why it has dragged its feet in this matter, even after the problem was discovered three years down the track, let me conclude by saying that, of course, the opposition supports the bill and hopefully, Mr Parliamentary Secretary, you will not forget to proclaim this one. I move the second reading amendment circulated in the chamber:

At the end of the motion, add 'but the Senate notes and condemns the incompetence of the Government in:

  (a) failing for almost three years to proclaim the relevant provisions of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, thereby needlessly permitting invalid orders to be made by the federal family courts and throwing the financial affairs of thousands of Australians into confusion;

  (b) failing to act promptly to correct the problem after it was first brought to its attention; and

  (c) failing to immediately bring remedial legislation before this Parliament".

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I do not think it will surprise you or the chamber to learn that the government will be opposing the second reading amendment. Let me deal with some of the issues raised by Senator Brandis. I congratulate him on what was a most artful speech but, while he offered us cooperation with the legislation—and I say most earnestly thank you for that cooperation; that is valued and important—it was an artful speech because this is a bill that provides certainty for family court orders with regard to matters following two proclamations in the Family Law Act that were not made, the first of those not having been made in 2006 and the second not having been made in 2009. In both instances this was a departmental oversight, given this is a very rarely required proclamation under the act. But I think the relevant point is that while, in 2009 this was an error for which Labor takes responsibility given that we were in office, in 2006 it was under the Liberal-National government and, if one were simply listening to Senator Brandis's artful speech, one would have concluded that some grotesque error had occurred entirely on the watch of the Labor Party. In fact, let the record make clear that this was a mistake that, while departmental and administrative, has its origins in 2006. This is a pertinent point that I notice was startlingly absent from the speech of Senator Brandis.

While I thank him for his cooperation, I think his speech makes plain just how dreadfully painful cooperation is for those opposite. No opposition and obstruction is obviously their preferred mode. But here the good angels have prevailed, Senator Brandis, and you have assisted us in this important matter for which I thank you. But let us make clear that, notwithstanding the artful speech of Senator Brandis, this is not a matter on which those opposite are entitled to be quite so high and mighty.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question is that the second reading amendment on sheet 7228 as circulated and moved by Senator Brandis be agreed to.

Question negatived.

Original question agreed to.

Bill read a second time.