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Law and Justice Legislation Amendment Bill (No. 2) 1991



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House: Senate Portfolio: Attorney- General Purpose This is an omnibus Bill that will make a number of largely non- contentious amendments. The major amendments relate to the power of the Family Court to make custody, guardianship, access and maintenance orders for children subject to state or territory welfare laws and the exemption of the Commonwealth from the operation of certain state and territory laws.

Background As there is no central to this Bill, the background to each amendment will be explained below.

Main Provisions Clause 4 will amend four Acts as set out in the Schedule to this Bill.

Amendments to the Family Law Act 1975 (the Act) At present section 60H of the Act preserves the effect of state and territory child welfare laws in circumstances where orders might be made in relation to a child under the Act. Subsection 60H(1) of the Act prohibits a court exercising jurisdiction under the Act from making an order in relation to a child who is: *in the custody of; or *under the guardianship of; or *under the care and control of; or *under the supervision of, a person under a state or territory child welfare law.

This Bill proposes to substitute a new subsection 60H(1) that will allow courts exercising jurisdiction under the Act to make orders in relation to a child who is under the guardianship, or in the custody or care and control, of a person under a state or territory child welfare law where: * the order comes into effect when such a child stops being under such guardianship, or in such custody or care and control; or * the relevant state or territory child welfare officer consents to the institution or continuation of the proceedings.

A new section 66FA will be inserted into the Act. It provides that proceedings in relation to the maintenance of a child under the guardianship, or in the custody or care and control, of a person under a state or territory child welfare law may only be brought by: *the child; *a parent of the child who has daily care and control; *a relative of the child who has daily care and control; or *a state or territory child welfare officer.

Section 117C of the Act provides a mechanism whereby, in certain proceedings, offers of settlement can be filed and later taken into account by the court in deciding on costs. A new subsection 117C(4) will be inserted into the Act by this Bill that ensures that a judge is not disqualified from sitting in a proceeding only because a settlement offer has been disclosed to the court.

Amendments to the Judiciary Act 1903 At common law the Crown is immune from all civil actions because the Queen cannot be forced as a defendant into her own courts. However, the Crown, both in right of the Commonwealth and in right of each state, has been made liable to civil actions in contract and in tort (i.e. negligence)

by legislation. For example, section 59 of the Act provides that a person making a claim against the Commonwealth, whether in contract or tort, may bring a suit against the Commonwealth.

Section 64 of the Act provides that

In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject.

For many years disagreement has existed as to whether this section was limited to procedural law (i.e. the formal steps to be taken in an action). In Maguire v. Simpson (1977) CLR 362, the High Court held that in every suit to which the Commonwealth was a party, section 64 required the rights of the parties to be ascertained, as nearly as possible, by the same rules of law, substantive and procedural, as would apply if the Commonwealth were a subject instead of being the Crown, and that section 64 was not be confined to suits in which a state was a party. In Commonwealth v. Evans Deakin- Industries Ltd (1986) 66 ALR 412, the High Court affirmed its earlier view.

Basically, these High Court decisions mean that in civil proceedings the Commonwealth and its instrumentalities may be subject to state and territory laws as if the Commonwealth were an ordinary person. In addition, the Commonwealth under section 64 of the Act may even be made liable by a state law which does not bind the state or which expressly declares the Commonwealth is not bound. 1

New subsections 64(2) and 64(3) will be inserted into the Act by this Bill. The effect of the proposed amendments to section 64 of the Act will be that the Commonwealth's position, when sued under a state or territory law will be the same as the state or territory that promulgated that law or regulation. As well, the Commonwealth will not be liable for a breach of statutory duty imposed under a state or territory law that is prescribed by the Commonwealth.

References 1. The Constitutional Commission, Final Report, 1988, Vol. 1, pp. 61 and 63.

Bills Digest Service 19 November 1991 Parliamentary Research Service

For further information, if required, contact the Law and Government Group on 06 2772430.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1991.

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Published by the Department of the Parliamentary Library, 1991.