Jenny McAllister (NSW, Australian Labor Party, Minister for Emergency Management) Share this | Link to this | Hansard source

I move:

That these bills be read a second time.

I seek leave to have the second reading speeches incorporated into Hansard.

Leave granted.

The speeches read as follows—

ADMINISTRATIVE REVIEW TRIBUNAL (MISCELLANEOUS MEASURES) BILL 2024

The Administrative Review Tribunal (Miscellaneous Measures) Bill 2024 supports the establishment of the new Administrative Review Tribunal, created by the Administrative Review Tribunal Act 2024 (ART Act).

The ART Act received Royal Assent on 3 June 2024 and will commence on 14 October 2024. Two additional Acts, containing consequential and transitional amendments to 248 Commonwealth Acts, have also received Royal Assent. The ART legislative package gives effect to the Government's commitment to a establish a new federal administrative review body that is user-focused, efficient, accessible, independent and fair.

This Bill completes the establishment of the Tribunal and ensures that existing legislation interacts effectively with it. It amends 52 Commonwealth Acts (including the ART Act). These amendments, which are largely procedural and technical, will:

The Bill is necessary, and could only be introduced following the passage of the ART Act due to the volume and complexity of interactions between the ART Act and other pieces of Commonwealth legislation—particularly those already before the parliament when the ART package was introduced. While there are transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 that ensure out-of-date references to the AAT in other legislation do not impede its effective operation, it is highly desirable to update those references to ensure legislation is as accessible as possible for Tribunal users.

The Bill demonstrates the Government's ongoing commitment to improvement of the federal system of administrative review.

Amendments to the ART Act

The Bill makes a number of minor changes to the ART Act to improve user experience and ensure the Act's intended operation is clear.

For example, the Bill amends the ART Act to exclude the period between 24 December and 14 January from the calculation of the 28-day period from which a party can appeal a decision of the Tribunal to the Federal Court of Australia. This addresses practical difficulties and disadvantages to parties seeking to make an appeal over the holiday period—when many legal assistance providers and law firms have limited staff and capacity to assist. This time period aligns with existing practice within the Federal Courts, and is consistent with the reform's object to improve access to justice.

The Bill also clarifies that where an applicant is no longer able to continue with an application for review of a decision for reasons such as death, bankruptcy or liquidation, another person may only apply to continue the proceeding if they would have been able to apply for review of the substantive decision. This will ensure that the ART Act does not conflict with other legislative provisions relating to who has standing to apply to the Tribunal for review.

To ensure that persons exercising powers and functions in the Tribunal's Intelligence and Security jurisdictional area are of an appropriate level of seniority and experience, the Bill makes amendments to ensure that these functions can only be exercised by the Tribunal as constituted.

The Bill amends the ART Act to ensure that amendments to the AAT Act in legislation introduced, and passed, after the ART legislative package was introduced are given effect. The Bill includes amendments to ensure that decisions of the National Archives of Australia relating to access to certain national security records are reviewed in the Tribunal's Intelligence and Security jurisdictional area. This ensures that the amendments in the Intelligence Services Legislation Amendment Bill 2023 are reflected in the new Tribunal.

Amendments to other legislation

In addition to these amendments to the ART Act, the Bill amends other laws to support the effective operation of the Tribunal, consistent with the overarching objective of harmonising the federal system of administrative review.

Consistency of timeframes to apply for review of a deemed decision

The Bill removes specific provisions of other legislation providing 28-day timeframes to apply to the Tribunal for review of decisions that have been deemed to be made under the terms of those Acts. There is currently inconsistency as to when this 28-day period begins and ends across these different Acts. This Bill harmonises timeframes to apply to the Tribunal for review of these decisions by applying the standard timeframes in the ART Act and related rules to these decisions (which cannot be less than 28 days after the decision is deemed to have been made). The amendments ensure consistency for users and reduce unnecessary administrative burden for the Tribunal.

Consistency of timeframes to apply for review of debt decisions

The Bill amends legislation in the Social Services portfolio to remove the three-month time limit to apply for both internal and Tribunal review of ABSTUDY or Assistance for Isolated Children debt decisions. This time limit is anomalous, as there is no time limit to apply for reviews of debt decisions in relation to other social security payments. By removing the time limit from the ABSTUDY and Assistance for Isolated Children debt decisions, the Bill removes a potential barrier for individuals seeking review of government decisions.

Removing the ability to alter a decision once referred to the GAP

Some Commonwealth legislation removes limitations on decision-makers varying or substituting a decision while the decision is before the Tribunal for review.

This Bill makes amendments to ensure that once an application has been referred to the guidance and appeals panel, the decision under review cannot be varied or substituted without the Tribunal's visibility. This does not prevent a decision-maker from substituting a more favourable decision to the applicant, provided this is done in accordance with the ART Act.

These amendments address concerns, informed by the Robodebt Royal Commission, that decision-makers might seek to alter or substitute a decision under review in order to avoid a systemic issue or error coming under scrutiny by the Tribunal.

Clarifying requirements to make a valid application for review of a Migration decision

The Bill amends the Migration Act 1958 to remove ambiguity about the requirements to make a valid application for review of a migration or protection decision, and how the Tribunal may deal with applications that do not meet minimum requirements. This amendment clarifies that an application is not valid, and therefore does not enliven the Tribunal's jurisdiction, unless it is properly made. An application will only be properly made if it includes the prescribed information, is made by a person with standing to apply and is made within the prescribed period. For reviewable migration matters, any prescribed fee must be paid for an application to be properly made.

These amendments do not change the existing requirements. But they ensure that applicants can easily identify, on the face of the legislation, what they are required to do to make a valid application. Clarity on these matters is essential to support the administration of the complex visa framework with the appropriate degree of transparency, certainty and consistency.

Immunity for nominated Tribunal members

The Bill amends the Crimes Act 1914 to provide Tribunal members nominated to issue Post-Entry and Delayed Notification Search Warrants, with the same immunity and protections as Tribunal members who are nominated to exercise other similar functions under the Crimes Act. Given the extraordinary nature of these warrants, it is critical that nominated Tribunal members exercise these functions independently and without fear of personal liability.

Conclusion

This Bill completes the package of reforms that establishes the new Administrative Review Tribunal. It makes reference changes to Bills and Acts that were introduced to or passed the Parliament since the ART legislative package was introduced.

It also makes technical amendments that support the intended operation of the ART Act and harmonises, streamlines and enhances the operation of a range of legislative provisions.

The Bill reflects the ongoing commitment of this Government to reforming Australia's system of administrative review. It simplifies the process for applicants and promotes a more efficient, accessible and cohesive Tribunal.

FAMILY LAW AMENDMENT BILL 2024

The Family Law Amendment Bill 2024 builds on landmark reforms to Australia's family law system in 2023. Together, these important reforms demonstrate the Government's ongoing commitment to ensuring that the Australian family law system is safer, more accessible, simpler to use, and delivers justice and equity for all Australian families.

Recent inquiries, including the 2019 Australian Law Reform Commission inquiry and the 2021 Parliamentary Joint Select Committee inquiry, have highlighted ongoing challenges in the family law system. It is complex and confusing. It fails to respond effectively to family violence.

This Bill makes a range of amendments to the Family Law Act 1975 to address recommendations from these recent family law inquiries.

Where the family law reforms of 2023 focused principally on safety and clarity in parenting orders, the key amendments in this Bill make resolving property and financial aspects of relationship breakdown safer and simpler for separating families.

Importantly, the Bill implements improvements to the legal frameworks underpinning property settlements and spousal maintenance matters, including to specifically recognise the economic impact of family violence on the wealth and welfare of Australian families. The Bill also makes the family law system safer and simpler by including amendments to enhance the operation of Children's Contact Services, clarifying various aspects of family law, safeguarding sensitive information in family law proceedings, including the interests of family pets, and supporting the effective operation of the Federal Circuit and Family Court of Australia.

Codifying the property decision-making framework

The Bill makes significant changes to Parts VIII and Part VIIIAB of the Family Law Act, which relate to property and financial proceedings for married and de facto couples, respectively. The effective operation of these Parts of the Family Law Act is critical to ensuring financial arrangements following relationship breakdown are resolved safely, and on just and equitable terms.

The Bill will codify the steps in the decision-making framework for property settlements, making the law clearer and more accessible for users of the Family Law Act. The Family Law Act does not currently identify the steps a court undertakes before making a property settlement order. This can be an obstacle to separating couples seeking to negotiate their own settlement, because they may not understand what the court considers in reaching an outcome. The law relating to property settlement must be clear and easy to understand for all users of the system.

The Government has consulted with the public and with key family law stakeholders. In response, this Bill will amend the Family Law Act to ensure it operates in a way that assists separating couples to better understand and more easily and safely navigate the division of their property, both within and outside the court system.

Recognising the economic impact of family violence

The Bill will ensure the economic impact of family violence on the wealth and welfare of Australian families is considered in property settlements where relevant. The Government considers that all forms of family violence are unacceptable and is committed to addressing the economic consequences of family violence on separated families. Family violence is a critical and far-reaching issue in the community. Women are victims of family violence from a current of former partner at significantly higher rates than men. First Nations women, in particular, are disproportionately impacted by family violence. They are 33 times more likely to be hospitalised due to violence than non-Indigenous women and six times more likely to die as a result of family violence.

Women are also more likely to experience financial difficulties after separation and face a higher risk of poverty than men. This is particularly the case where there is family violence involved, with research indicating that victims of family violence struggle to achieve a fair division of property under the Family Law Act, and may suffer long-term financial disadvantage. For any children involved, in addition to the trauma of exposure to family violence, they may also then face financial insecurity and housing instability as a result of an inequitable outcome for their primary carer in a property settlement.

The Family Law Act does not currently identify family violence as a relevant matter for the court to consider in a property settlement. This has been left to common law principles in case law, which are difficult to find, understand and keep up with. There has been a high evidentiary threshold for establishing the relevance and impact of the violence, and limited evidence that the principles result in a meaningful adjustment to the distribution of property in a victim-survivor's favour.

The Bill makes amendments to explicitly allow the court to consider the effect of family violence on the parties' ability to contribute to the property pool of a relationship, and to consider the effect of family violence on their future needs. This may be considered by the court along with a range of other factors to inform its decision about dividing property and finances. The effect of family violence can also be considered by the court in determining an application for spousal maintenance.

This Bill sends a strong message to the community that property settlement outcomes should recognise the effect of family violence on individuals, and on the wealth and welfare of the family, where this is relevant. It makes clear to the family law courts, and parties negotiating outside of court, that the economic consequences of family violence are relevant to resolving property and financial aspects of relationship breakdown.

Codifying the duty of financial disclosure into the Act

The Bill will encourage separating couples to understand and comply with their financial disclosure obligations, supporting fair outcomes in property divisions by ensuring all relevant financial information is shared.

The Bill will introduce a duty of disclosure for property and financial matters into the Family Law Act. While the duty currently exists in Court Rules, the ALRC recommended that the duty to disclose be elevated from the Rules and codified in the Family Law Act, to support the transparent disclosure of separating couples' financial circumstances.

This will encourage increased awareness of, and compliance with, the duty of disclosure and promote the early resolution of disputes by ensuring separated couples' financial information is disclosed at the earliest opportunity.

Creating a regulatory framework for Children's Contact Services

This Bill will also amend the Family Law Act to provide a regulatory framework for Children's Contact Services, providing additional safety, reassurance and predictability for families as they navigate the sometimes-uncertain time following separation. This measure will enable Regulations to be made that encourage the provision of child focussed and high-quality contact services for children whose families are unable to safely manage contact arrangements on their own.

Less adversarial trial in property and other non-child-related proceedings

The Bill will make the less adversarial trial approach available in property and other non-child-related proceedings. The less adversarial trial enables the court to actively manage the conduct of the proceedings, including directing how and on what issues evidence is brought forward and dealt with. Extending this beyond child-focussed proceedings will support parties to raise family violence risks in property and other proceedings, ensuring they are safe and these issues are managed effectively throughout the proceedings. It will also support those seeking to raise the economic effect of family violence as a factor relevant to determining their property or spousal maintenance matter to bring forward evidence of family violence and its effects.

Pets

Pets hold an important and unique place in many Australian families. In fact, in 2022, 69% of Australian households had amounting to 28.7 million animals across 6.9 million households.

Families have strong emotional attachments to their pets yet pets are treated like any other type of property under the Family Law Act. This can be a source of confusion and angst for separating Australian families, particularly in circumstances where there is family violence.

The Bill proposes amendments that will apply particular considerations to pets—defined as 'companion animals'—in determining the ownership of the pet as part of a property settlement. This will allow a court to make orders giving ownership of a pet to one party following a relationship breakdown. In making such an order, the court will be able to consider factors such as any history of family violence during the relationship, the extent to which each party has cared for the animal, any history of cruelty to the pet by a party, and the relationships of a party or a child with the pet. This will help recognise pets as a unique type of property that deserves special considerations.

Protected Confidences

The Bill will provide the courts with the ability to prevent records and other evidence generated from a child or party's engagement with health and specialist domestic and family violence services from being viewed by the other party or used as evidence, where the harm in doing so outweighs the need for the evidence.

While these records will often contain information relevant to proceedings, the experience of having private medical records or counselling notes made available to the other party is traumatic and distressing for many litigants. Seeking to have sensitive information disclosed and adduced in family law proceedings is also a method that can be employed by perpetrators to exploit legal systems to continue to their abuse an ex-partner.

Providing a safeguard against unnecessary access to this sensitive information is critical to reducing harm to families and children, and to ensuring that people can feel safe to engage with therapeutic and support services. This measure advances the efforts made in this Bill to combat family violence and supports families to safely access the family law system.

Amendments that will simplify and clarify the Family Law Act

Finally, the Bill makes a range of amendments that will clarify and simplify how the Family Law Act will operate. A consistent theme throughout the measures in this Bill is to aid usability of the Family Law Act for family law system users, including parties, self-represented litigants, legal advisers and the courts. These measures continue that theme, and include:

These important clarifications implement a range of ALRC and JSC recommendations and respond to feedback from the family law sector.

Finally, the Bill provides for a statutory review of the reforms made to the Family Law Act three-years after these amendments commence. This is important to ensure the reforms operate effectively, and prioritise the safe and fair resolution of family law property matters.

Conclusion

In closing, the Bill is a further significant step towards a safer, more accessible, just and fair, family law system, especially for separating families seeking to divide their property or resolve their finances. It builds on the Government's landmark reforms of 2023, which primarily focused on ensuring the safety and best interests of children in parenting matters. The Government has listened, and responded, to broad-ranging feedback from the public, from users of the family law system, and from the detailed reviews into the family law system. In proposing these measures, the Government thanks all who have contributed to relevant inquiries and the consultation process on this Bill.

This Bill is a clear demonstration that the Government remains committed to ensuring that the family law system is safe, just, equitable and easy-to-access for Australian families.

Ordered that further consideration of the second reading of these bills be adjourned to 18 November 2024, in accordance with standing order 111.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.