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Thursday, 22 March 2012
Page: 2629

Senator FEENEY (Victoria—Parliamentary Secretary for Defence) (15:40): 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.