Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I present government responses to reports of the following committees: the Education and Employment Legislation Committee on its inquiry into the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022, and the Legal and Constitutional Affairs Legislation Committee on its inquiry into the Family Law Amendment (Information Sharing) Bill 2023. In accordance with the usual practice, I seek leave to incorporate these documents in Hansard.

Leave granted.

The documents read as follows—

Australian Government Response to the Senate Standing Committee on Education and Employment report:

Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 [Provisions]

February 2024

Overview

The Australian Government believes in the fundamental right of all people in Australia to feel safe in their homes and in their workplaces. The Fair Work Amendment (Paid Family and Domestic Violence Leave) Act 2022 (Amendment Act) was an important step

towards making sure that no employee is forced to make a choice between earning a wage and protecting the safety of themselves and their family.

The Amendment Act was the first parliamentary action of the Hon Tony Burke MP, Minister for Employment and Workplace Relations. This recognised the need to take quick action towards the Government's goal to end gender-based violence in Australia, set out by the National Plan to End Violence against Women and Children 2022-32.

The Government recognises the importance of ensuring that this leave entitlement operates effectively for employers as well as employees who are experiencing family and domestic violence. This is why the Government has committed to a statutory independent review of the operation of the Amendment Act to commence as soon as is practicable from

February 2024.

Committee Recommendation 1

The committee recommends that the Australian Government commission an independent review of the provisions of the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 (bill) to be undertaken 18 months after the commencement of Schedule 1. The committee further recommends that the review assess the adequacy of support and guidance available to business to assist with implementation of the bill.

Response: Agreed in-principle.

During parliamentary debate, the Government agreed to amendments to the Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 requiring the Minister to commission an independent review of the operation of the paid family and domestic violence leave provisions.

The review must commence as soon as practicable 12 months from the commencement of Schedule 1 of the Amendment Act on 1 February 2023. In accordance with the

Amendment Act, it must consider:

The review must be provided as a written report to the Minister within 3 months of commencement of the review, and be tabled in both Houses of Parliament within 15 sitting days from the report being given to the Minister.

The Government intends that the review will also consider the adequacy of support and guidance available to business to assist with implementation of the legislation, as recommended by the Committee.

Committee Recommendation 2

The committee recommends that the Senate pass the bill.

Response: Agreed.

The Senate passed the legislation on 26 October 2022 and it passed both Houses of

Parliament on 27 October 2022. The Amendment Act received Royal Assent on

9 November 2022.

Coalition Senators' Recommendation 1

The Coalition Senators recommend:

Response: Noted.

In relation to the recommendations around the reporting obligations for employers and perpetrators not being able to access family and domestic violence leave, the Government's position was outlined during parliamentary debate (see Senate Hansard, 26 October 2022, pages 1565 and 1567-68). The Government made clear that the legislation does not impose any reporting obligations on employers and that an employee will only be able to access the leave if they are experiencing family and domestic violence.

As detailed in response to Committee Recommendation 1, the Amendment Act requires an independent review of the operation of the provisions be conducted. This review will provide Government with the opportunity to consider qualitative and quantitative research on the operation of the Amendment Act to understand the impact of the entitlement, including on small businesses and sole traders.

The Government recognises the importance of ensuring small business are equipped to understand and administer the paid family and domestic violence leave entitlement sensitively and lawfully. The Small Business Assistance package announced in the 2022-23 Budget provides $3.4 million over 4 years to deliver a range of holistic supports to help small businesses implement paid family and domestic violence leave. This funding supports:

practicable from 1 February 2024, which will assess support to small business and examine the effectiveness and scope of the legislation.

Measures now in place to support small business implement the leave entitlement include:

entitlement sensitively and lawfully, and competently manage associated issues. The website, www.10dayspaidFDVleave.com, was developed in partnership with small business representatives and family and domestic violence sector experts.

Small business, big impact: how to support employees experiencing family and domestic violence'

Together, these measures ensure small business can access the right advice at the right time to provide support to their employees experiencing family and domestic violence.

Australian Greens Senators' Recommendation 1

That any financial support package provided by the government be contingent on recipient businesses offering paid FDV leave to employees at the earliest possible opportunity.

Response: Noted.

The Government recognises that small businesses may need extra support to implement the entitlement as they often have more limited resources and may not have access to payroll and human resources expertise. To reflect this, the paid family and domestic violence leave entitlement did not commence for employees employed by small businesses until

1 August 2023, 6 months later than the commencement date for employees employed by non-small business employers.

The Small Business Assistance package announced in the 2022-23 Budget provided $3.4 million to provide support measures to small business, as outlined above. This measure does not include delivery of funding directly to small businesses implementing the new leave entitlement, but rather provides support to ensure they have guidance and relevant materials to help them implement the entitlement.

Australian Greens Senators' Recommendation 2

That the 18 month review of the Bill consider the definition of family and domestic violence in the Fair Work Act 2009 in the context of harmonisation initiatives, and consider whether to expand leave entitlements to family, domestic and sexual violence.

Response: Noted.

The review of the amendments made by the Amendment Act will be independent of government and capable of considering the definition of family and domestic violence for the purposes of the leave entitlement, including whether the definition should be revised.

The Government notes that the Fair Work Act 2009 contains a definition of family and domestic violence in subsection 106B(2) that applies for the purposes of the Act, including an employee's entitlement to paid family and domestic violence leave. The Government has committed to progressing a national definition of family and domestic violence that includes coercive control. A national definition of family and domestic violence will help inform a common understanding of family and domestic violence nationally and across jurisdictions.

Progression of a national definition requires a coordinated approach from Commonwealth, state and territory governments and will progress separately to the statutory independent review of the Amendment Act.

Australian Greens Senators' Recommendation 3

That resources developed by the Fair Work Ombudsman to support implementation of the Bill provide clear guidance to employers regarding evidentiary requirements, including:

Response: Noted.

As part of the Small Business Assistance package announced in the 2022-23 Budget, the Government provided the Fair Work Ombudsman with $2.2 million over 4 years to update its workplace relations advice and education tools and resource its advice and education channels.

The Fair Work Ombudsman website, www.fairwork.gov.au/leave/family-and-domestic-violence-leave, has free information and resources available now on evidentiary requirements for the new entitlement. This includes:

The Fair Work Ombudsman also updated its small business 'Employer Guide to Family and Domestic Violence' ahead of the extension of the entitlement to employees of small businesses from 1 August 2023. The guide promotes best practice by helping employers to understand their responsibilities to employees experiencing family or domestic

violence. The guide also includes information on how to support employees experiencing family or domestic violence, manage family and domestic violence issues in the

workplace, and develop a workplace response to family and domestic violence.

The Fair Work Ombudsman has also developed information in multiple languages. Australian Greens Senators' Recommendations 4 and 5

4. That s106B be amended to:

Response: Noted.

See response to Australian Greens recommendation 5 below.

5. That the Bill be amended to provide an entitlement for unpaid FDV leave where employees have exhausted their annual 10 days of paid leave. This could be modelled on the Western Australian Government provisions, or explicitly provide for at least 4 additional days of unpaid leave. Employers may also, at their discretion, provide additional paid FDV leave, in advance or by agreement.

Response: Noted.

Parliament considered elements of these recommendations by way of non-Government amendments moved by the Australian Greens in the Senate (see Senate Hansard, 26 October 2022, pages 1560 and 1665). The amendments were not agreed to by the Senate.

In relation to the proposed amendments to s 106B, the Government recognises the policy concerns underlying the recommendation, but considers the existing language of the provision is sufficiently clear to address them, as set out in the Government's contribution to the parliamentary debate.

The Government's priority for the Amendment Act was to ensure that no-one should have to choose between their pay and safety. The Amendment Act achieves this objective and is world-leading in terms of scope and entitlements for paid family and domestic violence leave. The Amendment Act builds in a requirement for an independent review of the legislation as soon as is practicable 12 months after commencement of the reforms.

The independent review will provide a critical opportunity to consider the effectiveness and scope of the legislation and the impact it has had on people experiencing family and domestic violence.

Australian Greens Senators' Recommendation 6

That the Fair Work Act 2009 (Cth) be amended to include 'experiencing family and domestic violence' and requesting FDV leave as protected characteristics under s.35(1) [sic].

That the 18 month review examine any evidence of gender discrimination resulting from the Bill and consider whether family and domestic violence should be a protected attribute under the Sex Discrimination Act 1984 (Cth).

Response: Noted.

The Government notes that an employee's access to paid family and domestic violence leave is already protected under the Fair Work Act 2009. The general protections provision in section 340 of the Fair Work Act 2009 prohibits a person taking adverse action against another person because they have a workplace right, whether or not they seek to exercise this right. A person has a workplace right if they are entitled to a benefit under a workplace law, which includes the new paid family and domestic violence leave entitlement.

The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Closing Loopholes Act) passed Parliament on 7 December 2023. The Closing Loopholes Act amended the Fair Work Act 2009 to strengthen existing workplace protections against discrimination for employees who have been, or continue to be, subjected to family and domestic violence, including by:

Fair Work Act 2009

Fair Work Act 2009

Fair Work Act 2009

While the Sex Discrimination Act 1984 does not directly prohibit discrimination on the grounds of someone experiencing family and domestic violence, the Government notes the work of the Australian Human Rights Commission in conciliating human rights and discrimination complaints and promoting Australians' rights and freedoms. The Government also notes the current work of the Parliamentary Joint Committee on Human Rights, which is considering Australia's human rights and anti-discrimination framework.

Australian Greens Senators' Recommendation 7

That the Government ensure that the Bill is part of a broad suite of reforms to implement the new National Plan to End Violence Against Women and Children. At a minimum, this should include:

[27]

Response: Partially agree.

Ending violence against women and children is a national priority. Paid family and domestic violence leave joins the range of tools available to address violence against women and children. The Government acknowledges the resistance and resilience of victim-survivors of family and domestic violence and is committed to providing the national leadership and investment needed to address family and domestic violence.

This is demonstrated through the Government's investment of $2.3 billion to support the implementation of the National Plan to End Violence against Women and Children 2022- 2032 since October 2022. This investment will guide efforts and actions over the next decade towards the vision of ending gender-based violence in one generation.

Building on the $1.7 billion in the October 2022-23 Budget, the Government has invested a further $589.3 million in the 2023-24 Budget to support the National Plan including:

31 January 2025, which will provide much needed support for individuals leaving violent relationships

Key measures in the October 2022-23 Budget included:

The Government invested $72.6 million over 2020-21 to 2024-25 in the program.

Housing

The Government is supporting the delivery of more social and affordable housing through its $10 billion Housing Australia Future Fund (HAFF). The HAFF will fund 30,000 new social and affordable housing properties. 4,000 of those social housing dwellings will be allocated for women and children experiencing family and domestic violence and older women at risk of homelessness. In addition to other acute housing needs, the HAFF will also fund $100 million in the first 5 years for crisis and transitional housing options for women and children experiencing family and domestic violence and older women who are at risk of homelessness.

The Government has funded the Keeping Women Safe in their Homes (KWSITH) program since 2015-16. In the October 2022-23 Budget, a further $41.7 million was allocated to continue KWSITH to 2026-27. The KWSITH program supports women and their children to stay in their own home, or a home of their choice, where it is safe and appropriate to do so, through a range of safety responses such as risk assessments, safety planning, home security audits and upgrades. The KWSITH program supports greater housing stability by providing women with an alternative to homeless shelters and emergency accommodation, and reduces some strain on emergency accommodation providers.

National Partnership on Family, Domestic and Sexual Violence Responses (FDSV National Partnership)

Investment of $159.0 million over 2 years announced in the 2023-24 Budget builds on the $270.7 million provided over 2 years from 2021-22 under the FDSV National Partnership, and the $169.4 million committed in the October 2022-23 Budget for 500 workers and innovative perpetrator response initiatives. Under the FDSV National Partnership, funding is conditional on contributions from states, in recognition that responding to violence is a shared responsibility of all Australian governments and that states have primary

responsibility for frontline services, and to ensure that critical services are able to meet demand. States are responsible for distributing the funding under the FDSV National Partnership to services based on needs in their jurisdictions.

Social security

The National Plan notes that Australia's social security system supports victims and survivors to not only leave a violent relationship, but also to establish a life free from violence. Examples of support include the Crisis Payment, Rent Assistance, and higher single rates of social security payments. The Government has committed to review the adequacy of income support payments at each Budget.

Services Australia provides assistance and support to victim-survivors guided by the Agency's Family and Domestic Violence Strategy. To reinforce this commitment, a range of strategies have been implemented to ensure the safety of customers and their families, including providing staff with regular training and guidance materials to help identify when customers may be experiencing violence. Training and guidance materials are regularly reviewed to ensure they are up to date and appropriate.

Child Support

As part of the 2023-24 Budget, the Government has committed $5.1 million to implement the Government's response to key Child Support recommendations made by the Joint Select Committee on Australia's Family Law System including:

Income support payments

As part of the 2023-24 Budget, the Government delivered a $14.6 billion cost of living package, which includes the following measures which increased income support payments:

The new rates commenced on 20 September 2023, further indexation of eligible payment rates also took place as usual on 20 September 2023.

Escaping Violence Payment (EVP)

Economic abuse involves control, exploitation or sabotage of finances which affects a person's ability to obtain, use, or maintain economic resources, threatening their economic security and potential for independence. The EVP trial provides support packages of up to $5,000 to eligible individuals to establish a home free from violence. The EVP trial reduces the financial barriers for individuals experiencing violence to leave an abusive relationship. An extension of the trial until the end of January 2025 was announced in the 2023-24 Budget. The trial is being independently evaluated and this will provide the Government with an evidence base to consider the future of the program.

Right to request flexible working arrangements

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 has strengthened the right to request flexible working arrangements in the National Employment Standards. These amendments commenced on 6 June 2023.

The right to request flexible working arrangements has been expanded to employees who are pregnant as well as situations where an employee, or a member of their immediate family or household, experiences family and domestic violence. This amendment aligns the coverage of family violence with the entitlement to paid family and domestic violence leave in the National Employment Standards.

The amendments make the right to request flexible working arrangements an enforceable right and allow the Fair Work Commission to deal with disputes about requests, including by arbitration. However, arbitration is a last resort and the Commission must attempt conciliation or mediation before arbitration unless there are exceptional circumstances.

Employers may only refuse a request on reasonable business grounds.

There is also a fair and transparent process for responding to requests for flexible working arrangements, based on the Commission's model term for flexible working arrangements in modern awards.

Australian Government response to the Senate Legal and Constitutional Affairs Legislation Committee report: Family Law Amendment (Information Sharing) Bill 2023 [Provisions]

OCTOBER 2023

On 29 March 2023, the Government introduced the Family Law Amendment (Information Sharing) Bill 2023 (the Bill) into the House of Representatives. The Bill passed both Houses of Parliament on 19 October 2023.

The Bill would amend the Family Law Act 1975 (Cth) (the Act) to enhance the ability of the Federal Circuit and Family Court of Australia, and the Family Court of Western Australia (the federal family law courts), to obtain family violence, child abuse and neglect risk information from State and Territory police, child protection and firearms agencies. In amending the Act, the Bill gives effect to key aspects of the National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems (National Framework).

On 11 May 2023, the Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee (the Committee) for inquiry. The Committee tabled their report into the Bill on 14 June 2023. The Committee made two substantive recommendations, and recommended that subject to these, the Senate pass the Bill.

The Government would like to thank the Committee for its examination of the Bill. The Government has accepted each of the substantive recommendations from the Committee and remains committed to enhancing information sharing between the federal family law system, and State and Territory child protection and family violence systems.

Recommendation 1

The committee recommends that the Attorney-General's Department commits to developing regulations in support of proposed Subdivision DA of Division 8 of Part VII of the Family Law Act 1975 in consultation with relevant stakeholders.

Response: Agreed

The Government is committed to ensuring the legislative provisions which support the establishment of enhanced information sharing are developed in consultation with key stakeholders. The National Framework, and the Bill which implements key aspects of the National Framework, were both developed in close consultation with affected State and Territory agencies, the federal family law courts, and peak national bodies representing women's and children's safety, the legal assistance sector, and the legal profession.

Initial consultation on the National Framework and the Bill was then used in developing the initial drafting of the Information Sharing Safeguards to be included in amendments to the Family Law Regulations 1984 (the Regulations). The explanatory memorandum to the Bill sets out the proposed minimum standards to be included in the Regulations.

The Attorney-General's Department subsequently conducted a targeted exposure draft consultation process on the proposed Family Law Amendment (Information Sharing) Regulations 2023 between 14 September 2023 and 11 October 2023. Consistent with consultations on the Bill, this targeted process included affected State and Territory agencies, the federal family law courts, and peak national bodies representing women's and children's safety, the legal assistance sector, and the legal profession.

Recommendation 2

The committee recommends that the Family Law Amendment (Information Sharing) Bill 2023 is amended to include a review of the operation of the Act no later than three years after its enactment and in conjunction with a review of the Family Law Amendment Bill 2023.

Response: Agreed

The Government agrees to Recommendation 2 of the Committee. The Bill as passed on 19 October 2023 included a Government amendment which provides that the Minister must commission a second review of provisions, and supporting amendments to the Regulations, as soon as practicable after 3 years following commencement of the Bill's provisions.

The Committee's recommendation the secondary review be conducted in conjunction with a review of the Family Law Amendment Bill 2023 will be addressed as part of the Government's response to the Committee's Inquiry into that Bill.