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Wednesday, 20 August 2003
Page: 14160

Senator ALSTON (Minister for Communications, Information Technology and the Arts) (4:27 PM) —I table a revised explanatory memorandum relating to the Family Law Amendment Bill 2003 and move:

That these bills be now read a second time.

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

Leave granted.

The speeches read as follows—


Respect for the law and its institutions is at the heart of any civilized community.

The Commonwealth has a duty to the Australian people and nation to ensure that its laws are upheld, in this case when unlawful industrial action threatens business performance, international competitiveness, and jobs. It also has a duty to protect the integrity of the Australian Industrial Relations Commission and its procedures.

On 19 December 2002, I announced that the Commonwealth would take a much more active role in instigating legal action and pursuing penalties against people and organisations that fail to comply with Federal Court or Industrial Relations Commission orders. The Government will make full use of existing laws to seek penalties where there is strong evidence that a person or organisation has defied orders and it is in the public interest to take the legal action.

When I made this announcement I foreshadowed that the Government would amend the Workplace Relations Act to clarify the scope of the prohibition against contempt of the Commission and update the penalties for that offence.

The Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003 does this.

Section 299 of the Workplace Relations Act creates offences that prohibit conduct in relation to the Commission. For example, there are offences of interrupting proceedings or using words calculated to improperly influence members of the Commission and witnesses.

Paragraph 299(1)(e) of the Workplace Relations Act is currently a kind of “catch-all” provision for all other contempt-like behaviour relating to the Commission. It makes it an offence to do any act or thing in relation to the Commission that would amount to contempt of court if the Commission were a court. Contempt of court arises under common law. It enables a court to punish those who interfere with its proceedings or with the administration of justice. Common law contempt does not apply to proceedings of commissions or tribunals, so these bodies are often protected by statutory provisions, sometimes referred to as “deemed contempt” provisions. Paragraph 299(1)(e) is a deemed contempt provision, because it applies to the Commission the whole of common law contempt as it operates with respect to courts.

However, the common law is continuously evolving court-made law and can be difficult to state with precision. The report of the Australian Law Reform Commission on the law of contempt in Australia noted the difficulty in transplanting the technical notion of contempt from its judicial context to the administrative context of commissions, and the failure to clearly identify the conduct that can result in an offence being committed. The report recommended that such provisions be replaced by specific statutory offences that identify contemptuous conduct.

This bill will stipulate the behaviours which will amount to contempt of the Commission, clarifying for all parties what constitutes the offences and identifying the necessary mental and physical elements.

I now turn to the specific provisions of the bill.

The bill provides for three new offences that codify certain forms of contempt. The maximum penalty for each of these offences is 12 months' imprisonment or a pecuniary penalty of $6,600 for a natural person, and $33,000 for a body corporate.

The first codification offence is engaging in conduct which contravenes an order of the Commission. At common law, this is sometimes called “disobedience contempt”. It recognises the importance of compliance with the Commission's orders. Commission orders must be taken seriously and clear sanctions must be available when there is a failure to comply with those orders.

The second codification offence is publishing a false allegation of misconduct affecting the Commission. This is drawn from scandalising at common law. Maintaining confidence in the Commission must be balanced with freedom of expression and open justice. The bill achieves this by requiring the allegation to be false, and the publication to adversely affect public confidence in the Commission as a whole.

The third codification offence is inducing another person to give false evidence. This is a component of interference with proceedings at common law.

The fourth offence in this bill is giving false evidence, which has been included to protect the integrity of the Commission and its proceedings. This offence is a form of perjury, rather than common law contempt, and has been included for completeness.

Other offences in the Crimes Act 1900 and the Criminal Code will also continue to apply to conduct in relation to the Commission—for example, using dishonest means to influence officials performing public duties, interference with witnesses and destruction of evidence. The bill uses legislative notes to enhance accessibility to these existing offences.

The bill also updates other penalties provided in Part XI of the Workplace Relations Act to bring them into line with the penalty levels proposed for the new proposed offences in section 299 and penalties that apply to similar provisions elsewhere. Many of these penalties have not been revised in this way since the 1970s and 1980s so an update is timely.

The bill will promote respect for the rule of law and better protect the integrity of the Commission.



The Family Law Amendment Bill 2003 is a part of the Howard Government's ongoing reform of the family law system as highlighted in the 2001 election promises.

The reforms are consistent with the recommendations of the recent report of the Family Law Pathways Advisory Group Pathways to the Future for Families experiencing separation (the Pathways Report). They aim to simplify and better integrate the family law system and keep people out of court wherever possible in order to minimise the emotional and financial costs associated with separation and divorce.

The Government recognises the extraordinary stress that is placed on people experiencing relationship difficulties and is committed to improving the assistance given to those persons whose relationships are experiencing difficulties to resolve those difficulties.

The bill will help separating couples achieve greater financial equity and certainty. Many of the amendments relating to property and financial agreements are complementary to the recent changes to superannuation and family law.

Of major significance are provisions in Schedule 6 of the bill that will allow the court to make orders binding third parties to give effect to property settlement proceedings under the Act. These provisions will apply to all creditors of the parties to the marriage whether they are family, friends or financial institutions. In limited circumstances, where it is considered necessary, the court will be able to alter the terms of a contract between the parties to a marriage and a creditor. For example the court could adjust the proportion of debt that each party of a marriage owes a creditor or order that liability for a debt belongs to just one of the parties. The changes do not affect the underlying substantive rights of creditors and provide creditors with procedural rights.

A number of the amendments in this bill clarify or refine changes to the Family Law Act that were made by the Family Law Amendment Act 1996 and Family Law Amendment Act 2000. This process of continuous improvement ensures that the experience of those using the provisions is taken into account and that operational issues are addressed in a timely manner.

Schedule 5 of the bill contains a number of amendments to the operation of Financial Agreements. Financial Agreements were introduced by the Family Law Amendment Act 2000 as an important method of allowing parties to resolve property matters after separation without resorting to litigation. Agreements allow people to have greater control and choice over their own affairs in the event of marital breakdown. This is consistent with the recommendations of the Pathways report. The changes to the provisions in Schedule 5 will improve there workability.

In particular, the legal profession has raised concerns with the difficulties in the current certification provisions that require both parties to seek independent legal advice about the implications of the agreement including the financial aspects of the agreement. The amendments will remove the reference to the provision of financial advice by a legal practitioner for the purposes of this certification.

Schedule 4 of the bill will address an area of significant public concern, the enforcement of parenting orders. The three stage parenting compliance regime for enforcement of parenting orders introduced in the Family Law Amendment Act 2000, as recommended by the Family Law Council in its 1998 report on Child Contact Orders, will be amended to improve flexibility for clients, the court and program providers.

A greater range of orders will be available to the court at Stage 2 of the enforcement regime to allow the Court flexibility in how to best address non compliance with orders. These changes are consistent with recommendations of the Pathways report to ensure that the family law system works in a more coordinated way so that separating families are directed to services which best meet their needs.

Referrals to a post separation parenting program will now be to a program provider rather than to a particular program. These changes will address concerns both about the difficulty judicial officers have in satisfying the current requirement to specify a specific program and the problems that program providers experience in providing an exhaustive and current list of all of their programs for the purpose of the publication under section 70NIB.

Schedule 1 of this bill repeals the requirement to register a parenting plan. Parenting plans were introduced by the Family Law Amendment Act 1996 in order to encourage parents who separate to consider carefully the needs of their children and to put in place workable parenting arrangements that promote the best interests of their children. I remain committed to this objective.

However, the Government recognises that registration of parenting plans made them inflexible as circumstances change and specifically as needs of children change as they grow up. Only a very small number of plans have ever been registered. The preferred way to ensure plans are legally binding is to seek consent orders from the court.

In light of this both the Family Law Council and the National Alternative Dispute Resolution Advisory Council recommended to the Government that the requirement to register parenting plans be repealed1 The Government still encourages the use of parenting plans as a practical but informal arrangement to assist parents post separation.

The amendments will ensure that agreements can easily be made to vary the parenting plans where this is appropriate. These amendments are consistent with recommendation 1 of the Pathways Report that the family law system, in whole and in all off its parts, should be designed to maximise the potential for families to function cooperatively in the interests of children after separation.

There are a range of other minor amendments in this bill.

The amendments in Schedule 3 of the bill are being made at the request of the court to reflect changes that have been made to the management structure of the Court. In particular a distinction is made between the role of Registrars and Registry Managers with the latter taking on many of the more administrative functions of the court. The changes also reflect the decision of the Court to refer to all of its Primary Dispute Resolution matters as mediation. A new position of Principal Mediator is established. These changes will assist the efficient administration of court.

Schedule 2 of the bill ensures that the power of the Court to use electronic technology is put beyond doubt. The provisions mirror existing legislation in particular Division 5 of Part 6 of the Federal Magistrates Act 1999. Provisions allowing split courts are also included so that Judges will have the capacity to sit in separate places as part of the one court. The amendments recognise that many parties will reside in different places and that severe difficulties can be experienced by being required to attending court hearings in a particular place. These amendments will provide significant savings of time and money to all parties and to the court generally.

Amendments in Schedule 7 will assist in the implementation of the work of the Family Law Rules Revision Committee. The amendments make provisions relating to the Rule making powers of the court less proscriptive and reduce the details required in the Rules.

Schedule 7 also makes changes to the provisions relating to admissibility of evidence of admissions and disclosures made in counselling and mediation. This implements recommendations 16 and 17 of the Family Law Council's September 2002 report on Family Law and Child Protection. The amendments provide a limited exception to admissions by adults and disclosures by children relating to child abuse. The amendments address concerns that the current provisions are not serving our children well. They will ensure that judges will have access to evidence vital to the protection of children. These changes recognise that it is appropriate for there to be a limited exception to the overall confidentiality of counselling and mediation where the safety and wellbeing of children is at stake.

The changes made by this Amendment bill are intended to benefit persons involved in family law matters. This bill will improve the procedural efficiency with which matters can be dealt with by the courts and assist in minimising the distress and trauma that arises when families break down.

Full details of the measures contained in this bill are contained in the Explanatory Memorandum to the bill.

Letter of Advice to the Attorney-General on Parenting Plans Part 1—16 March 2000

Debate (on motion by Senator Mackay) adjourned.

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