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Monday, 5 February 2018
Page: 137


Senator MOORE (Queensland) (19:51): I rise to speak on the Civil Law and Justice Legislation Amendment Bill 2017 on behalf of the opposition. At the outset, I wish to indicate that the opposition will be supporting this bill, but we have some concerns about certain elements. We have been in discussion with the government about potential amendments to ameliorate the opposition's concerns.

The majority of this bill makes a number of minor, technical and uncontroversial amendments relating to civil justice. The bill amends the Acts Interpretation Act 1901, the Archives Act 1983, the Bankruptcy Act 1966, the Domicile Act 1982, the Evidence Act 1995, the Family Law Act 1975, International Arbitration Act 1974, Legislation Act 2003, Marriage Act 1961 and the Sex Discrimination Act 1984.

The bill, which as you can see is very complex, was carefully scrutinised by the Senate Legal and Constitutional Affairs Legislation Committee which reported on 10 May 2017. The committee received six submissions which commented on the proposed changes to five of these acts, and I will discuss these comments in more detail. The committee received no comments on the remainder of the bill which is entirely non-controversial.

The committee made four substantive recommendations for improvements to the bill, subject to which the committee recommended that the bill be passed. Labor is pleased that the government is implementing two of the recommendations of the committee to make improvements to the bill. We will continue to discuss with the government two other recommended amendments to the bill that we believe are important.

The first recommendation of the committee that the government has implemented relates to amendments to the Bankruptcy Act. Schedule 3 of the bill would make an amendment to the Bankruptcy Act that would clarify that the Family Court of Australia has bankruptcy jurisdiction when a trustee applies to have a financial agreement set aside under the Family Law Act. Some submitters raised concerns about these amendments. The Law Council of Australia noted that the proposed amendments do not provide jurisdiction to the Family Court in bankruptcy in circumstances where a person has been discharged from bankruptcy, albeit that their estate remains vested in the trustee in bankruptcy. To remedy this, the Law Council recommended that the definition of 'bankrupt' and 'bankrupt party to a marriage' be clarified. The committee agreed with the Law Council and recommended the bill be amended. Labor is pleased that the government has accepted the Law Council's advice and acted on the recommendation of the committee by clarifying that a bankrupt 'includes a reference to a person who has been discharged from bankruptcy, and whose property remains vested in the bankruptcy trustee under the Bankruptcy Act'.

The second recommendation of the committee that the government has implemented relates to the amendments to the Family Law Act. This bill makes a significant change to Australia's response to international parental child abduction, clarifies the range of persons who may perform the powers of the registry managers in the Family Court or any other court and improves the consistency of financial and other provisions for de facto and married couples. The bill contains provisions that would create new offences regarding 'retaining a child outside Australia' in the Family Law Act. The explanatory memorandum notes that these provisions would remedy a gap in the existing legislation.

The Australian Human Rights Commission raised their concerns that there are circumstances where it would be inappropriate to expose parents or others to criminal sanction for taking, sending or retaining a child outside Australia—for instance, where there is evidence that, in some cases, children are taken or retained abroad by parents fleeing family violence. An analysis of return and access applications under the Hague convention revealed that 70 per cent of child abductors were women and the most common reason for the abduction was fleeing from domestic violence. The committee formed the view that the bill should be amended to include a defence of 'fleeing from family violence', to ensure that the existing and proposed offences of unlawful transfer and retention of children abroad do not apply in circumstances of family violence. Labor is pleased again that the government has accepted this recommendation of the committee. Labor is firmly committed to responding to family violence and supporting measures that reduce gender inequality. That is why we believe in supporting legislative reform to better deal with family violence, as well as measures to improve the capacity of the judicial system to deal with family violence. This amendment will ensure that victims of family violence who take their children overseas with them to flee the abuser will not be committing an offence.

The Australian Human Rights Commission also expressed their concern that 'consent' is not a defence for the existing international child abduction offences in the Family Law Act or the proposed new offence of retaining a child overseas. The committee recommended that the bill be amended to include a defence of consent, to ensure that the existing and proposed offences do not apply where oral or another form of consent has been provided. Labor believes that this is a worthy recommendation because it acknowledges the practical reality of parenting and relationships in Australia and the agreements that might be reached between parents orally or can be inferred from a person's actions and the facts and circumstances of a particular situation. We will continue to discuss this amendment with the government, to ensure that the proposed offence will not criminalise conduct from parents acting with the oral consent of the other parent.

The Family Law Act currently provides that a person who is authorised by the court to arrest another person has powers related to the use of reasonable force in making the arrest and powers of entry and search for the purposes of arresting persons. In its submission, the Attorney-General's Department noted that the current arrest powers in the Family Law Act are subject to fewer limits than the arrest provisions available to the other federal courts, are broader than the arrest powers available to police officers in the Crimes Act 1914 and lack limits and safeguards. This bill authorises additional persons to make arrests under the Family Law Act, including a marshal, deputy marshal, sheriff or deputy sheriff, police officer or the Australian Border Force commissioner.

The bill also provides that the power to arrest another person is conferred on 'an APS employee' in the Department of Immigration and Border Protection. The scrutiny committee considered this bill and asked whether the bill can be amended to require a certain level of relevant training be undertaken by those APS employees authorised to exercise these coercive powers. The Australian Human Rights Commission shared the scrutiny committee's concern. On this basis, the committee urged the government to amend the bill to limit the delegation of arrest powers so that they only apply to employees of the Australian Border Force who have received appropriate training. This would ensure that coercive powers are only being delegated to appropriate persons. Labor is pleased that the government has proposed amendments to the bill which limit the APS employees authorised to exercise these powers to only employees of the Australian Border Force. However, the amendment does not specify that the powers will only be delegated to those who have received appropriate training. That is why Labor will continue also to discuss with the government an amendment to specify that the arrest powers may only be used by the Australian Border Force officers who have received appropriate training.

The bill also repeals section 43 of the Sex Discrimination Act, which exempts discrimination against women in connection with employment, engagement or appointment in Australian Defence Force positions involving combat duties. Labor fully supports this change, which removes gender restrictions from combat roles and is an important step towards equal opportunity for women.

Also, this piece of legislation makes some changes to the Archives Act 1983. As I am currently a parliamentary representative on the Archives Committee, I'm very pleased to know that this particular segment of the bill will go through as we support it. It's considered non-controversial, and I know how long Archives have been waiting for this to come through. That was my ad to the process.

To conclude, Labor are broadly supportive of the bill but will continue to discuss with the government amendments that we believe would improve its operation.