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Legal and Constitutional Affairs Legislation Committee
Australian Law Reform Commission

Australian Law Reform Commission


CHAIR: I welcome officers from the Australian Law Reform Commission. Thank you for being with us here today. Justice Derrington, would you like to make an opening statement before we go to questions?

Justice Derrington : I would, thank you, Madam Chair and Members of the Committee. I make this opening statement in the context of completing my first full financial year as President of the Australian Law Reform Commission. I thought I would take this opportunity to update you on the agency as a whole. I've been very grateful to have the continuing support of the Honourable Justice John Middleton as a standing part-time commissioner and I have welcomed the appointment of the Honourable Justice Bromwich as a part-time commissioner for the duration of the review of corporate criminal responsibility.

Many of you will be aware that the agency moved to Brisbane in October 2018 as part of the government's regionalisation agenda. The office, including the Michael Kirby Library, is now established on level 4 of the Commonwealth Law Courts building on North Quay. The savings in rent that have been achieved by moving from the Sydney CBD to the Brisbane CBD, coupled with the outsourcing of corporate services to the Attorney-General's Department, have enabled the ALRC to employ a full complement of eight highly skilled lawyers, as opposed to our previous three, many of whom have postgraduate qualifications from the world's leading law schools, including Oxford and NYU. The ALRC is a highly sought-after employer by applicants from around the nation.

We've also enhanced our internal probity measures by appointing an independent and external-to-government chair of our audit committee, consistent with the Department of Finance's guidance as to best practice. The ALRC have also entered into memorandums of understanding with three universities—Monash, Sydney and Queensland—through which we are able to support internships for students from those universities who engage in their home city in research relevant to the current work of the ALRC, jointly supervised by ALRC staff and university academics.

In the last financial year the ALRC has produced report No. 134, Integrity, fairness and efficiency—an inquiry into class action proceedings and third-party litigation funders; discussion paper No. 86, Review of the family law system; and report No. 135, Family law for the future—an inquiry into the family law system.

We have also been working on the two references received in April: the review of religious exemptions in anti-discrimination law; and the review of corporate criminal responsibility. We have already conducted 57 consultations in relation to the issues raised by the latter inquiry, and the discussion paper will be released on 15 of November this year.

The ALRC is actively engaged with stakeholders of the current inquiries and remains actively engaged with speaking engagements, media requests, workshops and academic publications relating to our previous enquiries. Our engagement has also been enhanced by the launch of our new website earlier in the year.

In addition to the matters referred to it by the Attorney-General, the ALRC has been involved in a nationwide consultation to discern areas of law that are generally considered ripe for reform. This project, the future of law reform, received almost 400 responses to an online survey; involved academics, and industry and consultative workshops, in Perth, Melbourne, Sydney, Canberra and Brisbane on a range of topics; and will culminate with the launch of the report in a suggested three-to-five-year program of law reform by the Hon. Michael Kirby in Brisbane on 2 December of this year.

We have also forged strong links with other law reform agencies both within Australia and internationally. In July 2020, we will be hosting the Australasian Law Reform Agencies Conference in Brisbane. This conference aims primarily to bring together law reform agencies from the Asia-Pacific region. The substantive theme of the conference will be approaches to law reform in family law, and we hope to welcome in particular those agencies that have been working concurrently with us on family law reform, particularly New Zealand, Ontario, Scotland and Singapore.

In summary, the ALRC remains committed to research of the highest quality, broad and transparent consultation processes and the formulation of evidence based recommendations in response to the terms of reference for each enquiry referred to it by the Attorney-General. Thank you.

CHAIR: Thank you very much.

Senator KIM CARR: Madam President, could you table a copy of your statement, please.

Justice Derrington : Certainly.

Senator KIM CARR: Could you update us on the progress of your review into the framework of religious exemptions in the anti-discrimination legislation.

Justice Derrington : At the moment, that review is paused because of the work that the government is undertaking in relation to its own anti-discrimination bill specifically in relation to religion. We were issued with fresh terms of reference on 29 August. Through those terms of reference, we will await the consultation process that has been underway in response to the government's bill so that we are not consulting the same people twice on the same issues. Our report on that enquiry is now not due until the end of December next year.

Senator KIM CARR: So had you made any progress before the pausing of your work?

Justice Derrington : We had made some progress, yes. We had conducted a number of consultations and we were anticipating being in a position to issue a discussion paper in early September, but we did not do so.

Senator KIM CARR: You've been asked under the new terms of reference to confine any amendment recommendations to legislation other than the Religious Discrimination Bill. Can you explain how that change will impact on your work.

Justice Derrington : It's really just a narrowing of what we had originally intended to do because much of the policy discussion about how rights would be balanced will be dealt with now, as I understand it, in the government's bill. So what we've been asked to do is restrict ourselves to a drafting exercise which would ensure that the Sex Discrimination Act and the Fair Work Act were consistent with the government's bill.

Senator KIM CARR: So it's a bit more than just a narrowing, surely; it's a very significant reduction in your role.

Justice Derrington : We had originally thought that our first set of terms of reference were quite narrow in any event. It was a technical exercise to work out how the antidiscrimination provisions could be made compatible with faith based institutions' right to conduct their affairs in accordance with their ethos. So the terms of reference, as originally drafted, were quite narrow in any event.

Senator KIM CARR: They're even narrower again.

Justice Derrington : But they're narrower again, yes.

Senator KIM CARR: How is it possible to separate the two inquiries?

Justice Derrington : To be quite frank, I don't think there will be much for us to enquire into post the government's bill.

Senator KIM CARR: So you are really cut out of the action.

Justice Derrington : That's one interpretation.

Senator KIM CARR: That would be a fair interpretation, wouldn't it?

Senator Payne: You can make that assessment.

Senator KIM CARR: That is a reasonable interpretation. There is not much left, as you say.

Justice Derrington : Yes, for the time being. It will depend very much on what form the government's bill finally takes.

Senator KIM CARR: That's unknown, isn't it?

Justice Derrington : It is.

Senator KIM CARR: So how can you say there won't be much work for you to do?

Justice Derrington : I'm making an assumption.

Senator KIM CARR: I see. On 29 August, the Attorney-General pushed out your reporting date some eight months to 12 December 2020. Did you ask for that extension?

Justice Derrington : We did ask for our terms of reference to be reviewed because we were very concerned that the public consultation process would be entirely overlapping. So we approached the Attorney when we became aware that he was about to table his bill and suggested that a fresh look at the terms of reference would be appropriate to avoid duplication of work and wasted resources.

Senator KIM CARR: That's why it is such a significant extension of time, is it?

Justice Derrington : The matter of the extension was a matter for the Attorney.

Senator KIM CARR: You didn't ask for that length of time?

Justice Derrington : We didn't ask for any particular length of time.

Senator KIM CARR: Minister, I've got some questions that go to the government's position, if I could seek advice from you.

Senator Payne: I will help if I can.

Senator KIM CARR: The Prime Minister committed in last October to amend the SDA to prevent schools from discriminating against students on the basis of sexual orientation, gender identity and intersex status. Wasn't that legislation supposed to have been introduced last year?

Senator Payne: I don't have the timing on that legislation with me, but I'm very happy to follow that up with the Attorney.

Senator KIM CARR: Is anyone else able to help me as to what's happened to the timing on this particular legislation?

Ms Chidgey : That has been overtaken by the ALRC inquiry, which will now look at those issues with the exemptions in the Sex Discrimination Act. That would then be considered in any government legislation.

Senator Payne: And of course we had the release of the draft bill in August.

Senator KIM CARR: It doesn't strike me that there is much work being actually done here. I'm just trying to get it clear. What is the process? When will we actually see a bill?

Ms Chidgey : The expectation at this point would be that the government would want to consider the work of the ALRC, which would particularly look at those exemptions in the Sex Discrimination Act.

Senator KIM CARR: That's the reason why it hasn't been introduced—is that the case?

Ms Chidgey : Yes.

Senator KIM CARR: Is it possible that referring it to the ALRC, in fact, this becomes a mechanism by which the whole matter can be delayed?

Senator Payne: I might be wrong on this but, as I recall, the former Leader of the Opposition was offered the opportunity to participate in a conscience vote on these matters last year and it was decided, I presume by the Labor Party, not to take that up. We had legislation drafted. It was ready to be advanced. Matters have moved on since then, as both the president and Ms Chidgey have outlined, and you’d be well aware of the work that's also being done in relation to the religious discrimination bill more broadly.

Senator KIM CARR: The ALRC is due to report at the end of next year—is that right?

Ms Chidgey : That's correct—2020.

Senator KIM CARR: In the normal process, the government sits on these sorts of reports. Is it likely that we'll see the report much before 2021? Minister, is that the case?

Senator Payne: It's due for release by 12 December 2020, as I understand and as the president said.

Senator KIM CARR: Can you repeat that date.

Senator Payne: 12 December 2020.

Senator KIM CARR: That's after the parliament's got up.

Senator Payne: You may have sight of the 2020 sitting schedule, Senator Carr. I don't, and I'm sure the Attorney would be thrilled to know that you do. But I would also add that one of the benefits of the change in the terms of reference and the timing for the ALRC review is to avoid double-handling the issues that are addressed under the Religious Discrimination Bill, being able to take into account the matters that are addressed by the bill and also, of course, having the benefit of the public debate and the public consultation on that bill, which is, of course, extensive.

Senator KIM CARR: Minister, when was the last time the parliament was sitting here on 12 December?

Senator Payne: Senator, you and I could compare notes over more than two decades on that matter, but I'm not sure it would be very edifying.

Senator KIM CARR: No, but we have a fair indication of the sitting patterns of the Australian parliament.

Senator Payne: I don't know. I haven't seen the sitting schedule.

Senator KIM CARR: The reason I raise this—and I'm not trying to be a smart alec here—is that it is the common practice for the parliament to get up in the first week of December. The ALRC report is not due until 12 December. That is the second week of December. It is common practice for governments, or this government, to sit on a report for up to 15 days. It is more than likely, I put to you, that this report will not be seen until 2021.

Senator Payne: That may be the case, but it is equally likely, if we're going to engage in hypotheticals of that nature, that the reporting date doesn't preclude the ALRC from reporting earlier if the work is finished earlier.

Senator KIM CARR: I see. And you can give a commitment that the report will be released?

Senator Payne: I will take that on notice and refer that to the Attorney-General, of course, but, if the ALRC finish their work earlier, I'm sure they'll advise the Attorney-General of that.

Senator KIM CARR: I see. Will you be able to produce the report prior to that date?

Justice Derrington : I can't answer that question, because I can't resume my work on it until I know what the state of the government's bill is.

Senator KIM CARR: But, given you've said it's so narrow and given what the minister's just said, surely we could expect a report before then—or is it the case that there's been a political decision made not to have this matter put before the Australian people until 2021?

CHAIR: That sounds awfully speculative to me. Perhaps you could move on, Senator Carr.

Senator KIM CARR: Minister, with a report date of 12 December, this is set up to be delayed until 2021. In fact, I read in the paper this morning that speculation of an early election is already mounting. Is it the intention of the government to use this as yet another issue for a future election?

Senator Payne: Senator, I think that is entirely speculative on your part. Obviously that's your right, but the government has a number of actions in process. The ALRC report is one. The Religious Discrimination Bill is another. As I recall, the Attorney-General has publicly said in relation to the Religious Discrimination Bill that it will be introduced this year, but obviously its passage through parliament is subject to Senate inquiries, as you and I are both very familiar with, and similar matters.

CHAIR: Indeed, it will come to this committee, I expect.

Senator Payne: I expect that it will.

Senator KIM CARR: I'm looking forward to that. So the Religious Discrimination Bill has actually been tabled, has it?

Senator Payne: It's a draft which has been released, as I understand it—an exposure draft.

Senator KIM CARR: Is it in a form that—

CHAIR: An exposure draft for consultation has been released.

Senator KIM CARR: Yes. That's it, though, isn't it?

CHAIR: That's the stage which it is at.

Senator Payne: And I just indicated that it is the Attorney's intention, which he has publicly indicated, that it would be introduced this year. Its passage through the parliament will depend on the normal processes of Senate inquiry and similar activities.

Senator KIM CARR: It won't be this year, though, will it? It won't be referred to this committee this year, will it?

Senator Payne: I don't think you could assume that.

Senator KIM CARR: No, I certainly couldn't. Given the workload, I wouldn't have thought it will be.

Senator Payne: It's speculative.

Senator KIM CARR: Yes, indeed.

Senator Payne: It can still be referred. Whether it is dealt with this year, I think, is a different question.

Senator KIM CARR: In September 2017, former Attorney Brandis commissioned the ALRC to undertake a comprehensive review of the family law system. Where are we at with that review?

Justice Derrington : That review was completed in March of this year and was tabled in April of this year.

Senator KIM CARR: Roughly, what was involved in the work and consultations that you undertook and the resources applied? What proposals did you actually come forward with involving that comprehensive review of the family law system?

Justice Derrington : We made 60 recommendations for reform. Having consulted with a very wide range of stakeholders, we received over 800 confidential stories through a 'tell us your story' portal on the ALRC website. We received an additional 331 confidential submissions, largely from people with personal experience of the family law system, and we received over 400 public submissions, largely from agencies and institutions involved in the family law system. I can give you a summary of the recommendations.

Senator KIM CARR: Yes, please.

Justice Derrington : I can break them into categories. The first recommendation was around the theme of closing the jurisdictional gap. That was a recommendation which was premised on the proposition that children are currently disadvantaged by the gap that is created between federal family law courts, state and territory child protection systems and state and territory responses to family violence.

The second group of recommendations was around children's orders and simplifying the factors to be considered when determining living arrangements that promote a child's best interests. We made a set of recommendations around stricter case management, largely designed to ensure that, if couples and their advisers don't seek to resolve disputes as quickly, inexpensively and efficiently as possible and with the least acrimony, they will be visited with costs orders.

We made a group of recommendations around encouraging amicable dispute resolution and strengthening mediation and arbitration options. We made a set of recommendations around simpler property division, including a starting proposition that separated couples made equal contributions during the relationship, whether they be financial or nonfinancial. We made recommendations around better compliance with children's orders. To improve the understanding of orders we recommended that family consultants sit down with families after orders and explain them to them and the consequences of noncompliance. Finally we made a set of recommendations around simplifying the legislation so that those people who are compelled to use the family law system at least have a sporting chance of understanding the legislation.

CHAIR: Senator Carr, I've let you go a little over time. Do you have much more in this block?

Senator KIM CARR: I don't have much more. This will finish off my matters for this agency. Given you have 60 recommendations, 800 individual stories and 400 submissions, I'm just wondering whether your recommendations were consistent with the proposed structural reforms introduced by the Attorney-General in 2018. As I understand it, they were based on a six-week desktop modelling study conducted by two consultants. Were they consistent?

Justice Derrington : Not entirely, because the structural reform of the existing federal Family Court arrangements was outside the scope of our terms of reference and so we didn't deal with that precise issue that was being considered by the Attorney's proposal.

Senator KIM CARR: So if that proposal by the Attorney-General as suggested in 2018 were to be pursued, the Family Court division would effectively wither, would it not, over time?

Justice Derrington : I'm not sure I understand you.

Senator KIM CARR: As a superior court, what would happen to the Federal Court division? Would that take over the work of the Family Court if those reforms were pursued?

Justice Derrington : I think perhaps it might be better if Mr Anderson answered that question as to what precisely that reform is directed at, because I haven't looked at the most recent version of the proposed bill.

Mr Anderson : If the question was, will a part of a court wither—

Senator KIM CARR: Yes. Will the Family Court effectively wither under those proposals as put forward by the Attorney in 2018?

Mr Anderson : That's not correct. No courts will be abolished as the result of the court reform proposal, if that is passed by parliament. The Family Court will continue on as Division 1 of the proposed Federal Court and Family Court. The Attorney has said that he would be happy to agree to a minimum number of judges in Division 1 as well. There is no suggestion that—

Senator KIM CARR: Specialist judges, Family Court judges, would it be?

Mr Anderson : It's worth noting that I think 89 per cent of family law cases are heard by the Federal Circuit Court. There is considerable specialisation in that court as well. The judges who are the family law jurisdiction of the Federal Circuit Court will constitute Division 2 of the proposed Federal Circuit and Family Court. There will continue to be a great deal of expertise and specialist skills with respect to family law in the proposed court if the proposed legislation is passed by parliament.

CHAIR: And indeed there is a requirement of the act, isn't there, that those that serve in the Family Court are specialists in family law.

Mr Anderson : That's correct.

Senator KIM CARR: So when will the government be responding to the ALRC's review into the family law system, delivered seven months ago now?

Mr Anderson : Firstly I note there is no statutory requirement to publicly respond to an ALRC report. Secondly, I note the scope of the ALRC's report. In the 60 recommendations there are some very weighty matters covered, so you will not be surprised to know that there is continuing consideration within and also consultation outside government on how best to progress some of those reforms.

In the meantime, the government is carrying on a wide range of reforms in the family law space, so it's certainly not the case nothing is happening. One example is the proposed court reform. Another example is the small claims property pilot that was announced in the women's economic security package on 20 November 2018, which is establishing a small claims property pilot. That was actually commended by the ALRC in their report.

Another example is that there is work under way in relation to information-sharing between the family violence and child protection sectors. There is a working group that sits underneath the Council of Attorneys-General that's working on seeking to improve sharing of information between those three sectors. There is funding of approximately $11 million, of which the majority goes to funding the colocation of state and territory officials in the Family Court registry so there can be better information-sharing. There's also some small funding for starting to investigate a technological solution.

Then there are the property mediation and family relationships centres, a pilot that is being done with $13 million for the year ongoing. That was also announced in the women's economic security package. There is a two-year trial of lawyer assisted mediation in family law property matters by the Legal Aid Commission. That was also announced in the women's economic security package on 20 November. There's work being done to improve the visibility of superannuation assets in family law proceedings. That was also announced in the women's economic security package. There is additional funding that was committed in 2018 for the family advocacy and support services.

Senator KIM CARR: That's terrific, but you haven't answered my question. Why has the government not responded to the comprehensive review, with 60 recommendations, 800 separate stories and 400 submissions? Why has the government not responded?

Senator Payne: I think you've just answered your own question, Senator. I would imagine that your preference would be that a body of 60 recommendations, which are very focused on the procedural and the substantive family law that affects separating families and how they interact with dispute resolution services and the family courts, is responded to in a very considered and constructive way. I know from my discussions with the Attorney that that work is well underway. It's not something that I would expect to see, nor wish to see, rushed.

CHAIR: Senator Carr, you've been going for twice the usual block.

Senator KIM CARR: I know. I've only got one more. Minister, if that's the case, why did you then agree to establish yet another inquiry in the family law system through another parliamentary process?

Senator Payne: If you look at the terms of reference of that particular inquiry, it covers a very broad range of issues. It covers the interaction between the family law system and the domestic violence; the child protection and child support systems; the financial costs of family law disputes; the health, safety and wellbeing impacts of family law proceedings; the regulation of family law system professionals and a range of other matters. It's very, very wide. I think the parliament has every right, if it wishes to pursue an inquiry of that nature, to do so.

Senator KIM CARR: When can we—

CHAIR: Senator Carr, that was your last question.

Senator KIM CARR: When can we expect a response?

CHAIR: Senator Carr, could you have some discipline please?

Senator Payne: I will happily, of course, take that matter on notice and refer it to the Attorney and come back to the committee.

CHAIR: Senator Carr, I expect you to abide by the directions of the chair, not to do as you wish with impunity. It is disrespectful and not conducive to this committee being effective.

Senator McKIM: Good morning, everyone. I've just got a few questions on the same issue. I'd just like to start with the department first. Perhaps, Mr Anderson, this is in your area. Has the department provided advice to government on the recommendations of the ALRC's inquiry into the family law system?

Mr Anderson : We have certainly provided some advice to government. That's an ongoing process.

Senator McKIM: Did you say that it's on an ongoing basis?

Mr Anderson : Yes. We've provided more than one piece of advice, and there will be more to be provided.

Senator McKIM: There is still more to be provided?

Mr Anderson : That's correct.

Senator McKIM: And do you have the dates on which you provided that advice? I'm happy for you to take that on notice.

Mr Anderson : We'd have to take that on notice.

Senator McKIM: That matter, the government's response to the recommendations of the ALRC's inquiry into the family law system, is now before cabinet, is it not?

Senator Payne: No. It's with the Attorney-General.

Senator McKIM: So it's not in the cabinet process?

Senator Payne: It's with the Attorney-General.

Senator McKIM: So it's not in the cabinet process?

Senator Payne: It's in the cabinet process to the extent that it is before a cabinet minister, but it's with the Attorney-General. As I said in response to Senator Carr, the Attorney is dealing with the over 60 recommendations of the ALRC inquiry, and I'm sure he'll bring that forward in due course.

Senator McKIM: To cabinet?

Senator Payne: I believe so, but I stand to be corrected, and I'm happy to take that on notice.

Senator McKIM: Sure. But everything before a cabinet minister is not before cabinet.

Senator Payne: No. That's absolutely correct, but I will take that on notice.

Senator McKIM: Mr Anderson, when you say there'll be more advice to come on that in the future, is that because—I'm not meaning to be critical—the previous advice that you gave to the minister on this matter was partial advice in response to the ALRC's recommendations?

Mr Anderson : I wouldn't use that description. It's just because of the depth of some of the recommendations. We've been having an ongoing discussion, effectively, with the Attorney-General as to what some of the recommendations might mean and different ways that some of the things could be implemented or changed. I see it as being an iterative process in that sense.

Senator McKIM: Do you have any idea, through your discussions with the Attorney or his office, as to a time frame that we could expect a response from government?

Mr Anderson : I couldn't be specific. The Attorney has certainly been very engaged on it. Then again, these are not simple matters. He has made it very clear, both to us and publicly, that there is a range of other reforms that will keep going in the meantime as well. I was giving Senator Carr a list of different pilots that we're currently funding. The evaluation of those pilots with the Family Advocacy and Support Service and the Domestic Violence Unit and things like that that are happening outside the courts actually feeds back into what is the best way to structure the family law system, because most of the activity in the family law system happens outside the courts, so it is very important to pay a lot of attention to those measures outside the courts.

Senator McKIM: Has the Attorney or his office indicated to the department that any advice may need to change as a result of the Senate inquiry that's recently been established?

Senator Payne: It's a joint select inquiry.

Senator McKIM: Thanks, Minister.

Mr Anderson : Is it any advice that may need to change?

Senator McKIM: I'll ask it in another way. It's true, isn't it, that the joint house inquiry has terms of reference that overlap, to a degree, with the terms of reference of the ALRC inquiry?

Mr Anderson : Yes, there are some areas where there is overlap, but there are also other areas where there's no overlap.

Senator McKIM: What I'm trying to understand—and if it's not appropriate to ask you this I'll refer it to the minister—is whether the process that's an iterative process between the department and the Attorney-General has changed at all, or is foreseen to possibly change in the future, as a result of the inquiry that's been established by parliament.

Mr Anderson : There's been no change to the process we're pursuing. We're continuing to pursue that with full alacrity, and the Attorney is very engaged on that process of discussing both the ALRC and other possible recommendations for performance.

Senator McKIM: Minister, that being the case, why did the government support the establishment of the parliamentary inquiry?

Senator Payne: I think I responded to Senator Carr on that. But this parliamentary inquiry has a very broad set of terms of reference, some of which I outlined in my discussion with Senator Carr. The ALRC's final report was substantially focused—primarily focused, indeed—on the procedural and substantive law in this area. This inquiry and its terms of reference include issues that haven't necessarily been fully explored previously. They also allow consideration of other related matters, which is a broader term of reference as well, as you'd appreciate.

I think the opportunity for stakeholders, for individuals—for, frankly, people all around the country—who are impacted by the operation of the family law system, engaged in the operation of the family law system, in so many ways, which we know is immensely difficult for very many families, have the opportunity to participate through their elected representatives in the Senate and in the House to make a contribution to that inquiry in a way that is perhaps not always the case.

Senator McKIM: Thanks, Minister. But we've heard from Justice Derrington that the ALRC had a portal that many hundreds of people—

Senator Payne: Which I think is very important.

Senator McKIM: I totally agree. But what you've just outlined is a replication of the process that was gone through by the ALRC. The question is, and I will ask it slightly differently from the way I asked it previously: why has the government supported those parts of the terms of reference of the parliamentary inquiry that are directly replicating the terms of reference of the ALRC inquiry?

Senator Payne: My view about parliamentary inquiries is one that I developed over many years here, and that is that the parliament is entitled to review—

Senator McKIM: It's not a question of entitlement.

Senator Payne: I think the parliament does have an opportunity, an entitlement—whatever word you wish to use, and I can substitute another word if that's your reference—to inquire into matters as representative of the people of Australia, across all of the states and territories and across all of the electorates of the Commonwealth, on a range of issues. This is an important inquiry and it has a varied membership, in terms of the committee. It is moving away from that focus on procedural and substantive law, which the ALRC had, and I went through the issues before: child protection, child-support systems, domestic violence and their interaction with the family law systems, the financial costs of family law disputes, the health and safety and wellbeing impacts of family law proceedings, and the regulation of the professionals in the family law system. Those sorts of things are matters into which the parliament is, in my view, entitled to inquire into.

Senator McKIM: Of course it's entitled to inquire into those things, but that wasn't my question. I'll repeat the question for clarity. My question relates to the overlap, which we have agreed exists, between the ALRC terms of reference and recommendations, on one hand, and that part or those parts of the terms of reference of the parliamentary inquiry. If you drew a Venn diagram of those two things, there would be some overlap. We can agree on that, can't we?

Senator Payne: I'm familiar with the concept.

Senator McKIM: So my question is: why has the government agreed to those parts of the terms of reference that, in a Venn diagram, would overlap between those parts of the terms of reference of the parliamentary inquiry and the ALRC?

Senator Payne: Actually, the parliament has agreed to the terms of reference—

Senator McKIM: I'm asking about the government's support.

Senator Payne: and it is an opportunity for the parliament and the members of the committee, and the constituents of members of parliament, to have input on those terms of reference—all of them—which they may not otherwise have had.

Senator McKIM: In relation to those parts of the terms of reference that overlap with the ALRC's inquiry, people have had the opportunity to participate through the ALRC, have they not?

Senator Payne: I understand, from the President's description of the inquiry, that there was some opportunity for that. But I think a joint select committee of the parliament, which also takes up this area of policy, presents a further opportunity.

Senator McKIM: It is the case, isn't it, that it is not the parliament's decision but the government's decision to support that inquiry in the parliament? The government did that as part of a political trade-off with One Nation?

Senator Payne: That's an assertion I reject.

Senator McKIM: I will try once more. Why did the government choose to support those parts of the terms of reference that have already been dealt with by the ALRC?

CHAIR: You've asked and been answered, Senator McKim.

Senator Payne: I'll give it another go, Chair. Around this country, in the offices of members of the House of Representatives and in the offices of senators of the states and territories, I can absolutely promise you that those issues continue to be advanced—

Senator McKIM: You don't have to; I get 'em as well.

Senator Payne: Of course you do. And so for the parliament to take the opportunity to examine these matters in the broad terms of reference that I have referred to a couple of times here this morning is in fact the role of the parliament, many would argue.

CHAIR: Thank you very much to the representatives of the Australian Law Reform Commission. We are grateful for your evidence day. There being no further questions, you are excused.