Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Civil Law and Justice Legislation Amendment Bill 2018

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

 

 

2016-2017-2018

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

CIVIL LAW AND JUSTICE LEGISLATION AMENDMENT BILL 2017

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM RELATING TO

AMENDMENT SHEET GJ134 AS REVISED

 

Amendments to be Moved on Behalf of the Government

 

 

(Circulated by authority of the

Attorney-General, the Honourable Christian Porter MP)

               



 

AMENDMENTS TO THE CIVIL LAW AND JUSTICE LEGISLATION AMENDMENT Bill 2017

(Government)

general Outline

1.                   The purpose of the Civil Law and Justice Legislation Amendment Bill (‘the Bill’) is to make minor and technical amendments to civil justice legislation.

2.                   The amendments proposed to be moved by the Government to the Bill would:

·          implement recommendations made by the Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest No.5 of 2017 and by the Senate Legal and Constitutional Affairs Legislation Committee in their report on the Bill, and

·          ensure all of the international child abduction offences are drafted consistent with the Guide to Framing Commonwealth Criminal Offences ; that the exception of fleeing family violence applies to all of such offences; to confirm that subsequent written consent (authenticated as prescribed) could regularise the status of the child overseas, thereby removing the possibility of a criminal charge of retaining a child outside Australia where parents have subsequently agreed that the child can remain overseas.

FINANCIAL IMPACT

3.                   There is nil financial impact associated with the Bill or these amendments.

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Civil Law and Justice Legislation Amendment Bill 2017

4.                   The amendments to the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 . To the extent that they are incompatible with these rights, the limitations are necessary and appropriate.

Human rights implications

5.                   The Bill engages the following rights:

·          the right to life under Article 6 of the International Covenant on Civil and Political Rights (ICCPR)

·          the right to not be subject to arbitrary arrest or detention under Article 9 of the ICCPR

·          the right of all persons to be equal before courts and tribunals under Article 14 of the ICCPR

·          the prohibition on retrospective criminal laws under Article 15 of the ICCPR

·          the right of every child to such measures of protection as are required by their status as a minor, on the part of their family, society and the State under Article 24(1) of the ICCPR

·          the requirement on State Parties to take all appropriate measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child under Article 19(1) of the Convention on the Rights of the Child (CRC), and

·          the elimination of discrimination against women required by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

Amendments 1 and 2: Bankruptcy

6.                   These amendments strengthen the rights of the bankruptcy trustee to be represented in family law proceedings relating to property which is vested in the trustee. This facilitates the just and fair administration of the estate on behalf of the creditors and maintains the rights of the parties to the proceedings. To the extent that this Bill engages the rights under Article 14 of the ICCPR, for all persons to be equal before the courts, it does so by enhancing the protection of those rights.

Amendment 3: Removal of family consultant measure

7.                   This amendment removes the proposed measure that would have limited the family law courts to only appointing family consultants to supervise final orders in exceptional circumstances. As the original measure did not engage any human rights, its removal similarly engages no human rights.



 

Amendments 4 and 5: Making arrests

8.                   These amendments narrow the list of people who can be authorised to use force and utilise entry and search powers when exercising arrest powers under the Family Law Act 1975 . This is true both in comparison to the existing Family Law Act, and in comparison to the original text of the Bill.

9.                   To the extent that this amendment engages such rights, such as the right to not be subject to arbitrary arrest or detention under Article 9 of the ICCPR and the right to life under Article 6 of the ICCPR, it does so by enhancing the protection of those rights.

Amendments 6, 10, 14: Ensuring consistency with the Guide to Framing Commonwealth Criminal Offences :

10.               These amendments amend sections 65Y, s65Z, 65ZA and s65ZB of the Family Law Act to be consistent with the Guide to Framing Commonwealth Criminal Offences, Infringement Notices and Enforcement Powers . The main amendment removes the exception to the offence where there is consent or a court order, and inserts this as an element of the offence. The result being that the prosecution would need to prove that there was a lack of consent or court orders, rather than the defendant. This amendment is consistent with the right to a fair trial under Article 14 of the ICCPR.

Amendments 6, 9, 10, 11 and 13: Exception of fleeing family violence

11.               These amendments also add the new exception of fleeing from family violence to sections 65Y, 65YA, 65Z, 65ZAA of the Family Law Act. These amendments enhance protections for women and children who are, or may be, subject to family violence and abuse. The rights for child/ren are contained in Article 24 of the ICCPR and Article 19(1) of the CRC. Article 24(1) of the ICCPR provides for protection of the child as required by his/her status as a minor. Article 19(1) of the CRC requires States to ‘take all appropriate legislative, administrative, social and educational measures to protection the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person.’

12.               These amendments also promote the elimination of discrimination against women required by CEDAW. CEDAW provides for key principles of equality which broadly cover many aspects of women’s lives, including political participation, health, education, employment, marriage, family relations and equality before the law.

13.               In particular:

·          Article 2 urges parties to CEDAW to work towards eradicating discrimination against women required by CEDAW, including by introducing new laws or policies, changing existing discriminatory laws and providing sanctions for discrimination where appropriate.

·          Article 3 requires parties to promote actively women’s full development and advancement, so they can enjoy human rights and fundamental freedoms on the same basis as men.

14.               Discrimination against women includes gender-based violence - that is, violence directed against a woman because she is a woman or that affects women disproportionately. Although family violence is perpetrated by both men and women, and the Family Law Act is accordingly gender-neutral, the majority of those who experience family violence are women.

15.               These amendments would introduce a defence for both the new and existing offences of international parental child abduction. This defence would be available in circumstances where the purported abduction occurred in the context of fleeing family violence, where the removal or retention of the child overseas is a reasonable response to an actual fear of family violence. By providing this defence, the amendment would ensure that behaviour that is a reasonable response to family violence is not criminalised.

Amendment 7: Fleeing family violence

16.               This amendment is a technical amendment to insert subsection (1) into proposed section 65YA of the Family Law Act so that the fleeing from family violence exception would become subsection (2). It does not engage any international obligations.

Amendments 8 and 12: Consent or compliance with a court order

17.               These amendments confirm that subsequent written consent (authenticated as prescribed) or court orders can regularise a child’s status overseas, preventing the possibility of criminal charges. These amendments confirm that plans can change after the child/ren departs Australia. Provided that arrangements are authorised - by subsequent court orders or written consent (authenticated as prescribed) - the actions will not be subject to the offence provision. These proposed amendments engage the right to not be subject to arbitrary arrest or detention under Article 9 of the ICCPR.

Amendment 15: Application provisions

18.               This amendment will allow amended provisions at sections 65Y and 65Z of the Family Law Act to apply to the taking or sending of a child from Australia after the commencement of the Division. This means that both the proposed offences and the defences available under the proposed amended provisions will only apply to children taken or sent from Australia after commencement. Therefore this amendment engages positively with the prohibition on retrospective criminal laws under to Article 15 of the ICCPR. The existing criminal offences under existing sections 65Y and 65Z of the Family Law Act will continue to apply to children taken or sent from Australia prior to the commencement of the Division.

Amendment 16: Saving of regulations

19.               This proposed amendment is a savings provision that would protect regulation 13 of the Family Law Regulations 1984 , which was made for the purposes of a number of provisions that will be amended by this Bill. This will mean that authorised arrangements, for which consent has been authenticated in writing as required by regulation 13, will not be subject to the new, and amended, offence provisions.

20.               This ensures that parents have a means of securing consent to protect behaviour that would otherwise constitute the commission of an offence. This proposed amendment engages the right to not be subject to arbitrary arrest or detention under Article 9 of the ICCPR.

Amendment 17: Expiry and lapsing of legislation

21.             This is a technical amendment with no substantive effect. It does not engage any human rights.

NOTES ON AMENDMENTS

Schedule 6 — Amendment of the Family Law Act 1975

Amendments 1 and 2: Schedule 6, item 1, page 14 (before line 7)

22.               Together, the amendments related to bankruptcy (amendments 1 and 2) are intended to implement recommendation 1 of the Senate Legal and Constitutional Affairs Legislation Committee (the Committee) report on the Bill (the Report).

23.               The Committee recommended that the Bill be amended to reflect a recommendation made by the Law Council of Australia in its submission to the Committee. The purpose of the Law Council’s recommendation was to overcome the limitation on family law jurisdiction identified by the decision of the Full Court of the Family Court of Australia in Official Trustee in Bankruptcy & Galanis and Anor [2017] FamCAFC 20. In that case, the Full Court found that the wording of paragraph (cb) of the definition of ‘matrimonial cause’ in subsection 4(1) of the Family Law Act 1975 (the Act) meant that the court did not have jurisdiction to hear an application brought by a bankruptcy trustee relating to property vested with them once the party to a marriage or de facto relationship became a discharged bankrupt.

24.               Currently, subsequent to the Family Court’s decision, the Act only provides jurisdiction for the Family Court of Australia to allow bankruptcy trustees to initiate and join proceedings involving the property of a bankrupt when the person is an undischarged bankrupt.

25.               It is inconsistent for there to be a gap in the family law courts’ jurisdiction when the court could exercise jurisdiction over that property in all other relevant circumstances.

26.               This issue also arises in a de facto financial cause due to the similar wording found in paragraph (c) of the definition of de facto financial cause in subsection 4(1) of the Act.

27.               These amendments would ensure jurisdiction under the Act for such cases involving trustees, regardless of whether the person was the party to a marriage or a de facto relationship.

28.               Amendment 1 would insert a definition of ‘bankruptcy’ in subsection 4(1) of the Act. This definition would direct users of the legislation to proposed subsection 4(6), but would not otherwise provide definitional guidance.

29.               Amendment 2 would, for the purposes of the proposed definition of bankrupt in subsection 4(1), provide that a reference to a bankrupt, where that party is a party to a marriage or de facto relationship, 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 1966.

30.               This is intended to ensure that in cases where a person is a discharged bankrupt, but the relevant property is still vested in the bankruptcy trustee, the court can join the bankruptcy trustee as a party to the proceedings or hear applications made by the trustee.

31.               The purpose of including the clause ‘being a party to a marriage or de facto relationship’ is to identify that subsection 4(6) only applies where the term ‘bankrupt’ refers to a person in the context of that person as a party to a relationship. It does not apply, for example, for the purposes of subsection 26L(2), as that provision relates to the termination of a Judicial Registrar should the Registrar become a bankrupt, not to a party to a relationship. Provisions where subsection 4(6) would not apply include:

·            subsection 26L(2)

·            paragraph 38K(2)(a)

·            section 79H

·            subsection 90SQ(1)

·            subsection 114LB(2), and

·            subsection 115(6B).

32.               The provision that the term bankrupt applies to a discharged bankrupt whose property remains vested in the bankruptcy trustee is intended to ensure that the new definition of bankrupt does not include all persons who have ever been bankrupt. For example, it is not intended that anyone who has ever been a bankrupt should be required to give notice of proceedings to the trustee under subsection 79G(1) and subsection 90SP(1) of the Act.

33.               It should be noted that subsection 4(6) is inclusive of the ordinary definition of bankrupt. It is not intended that it would be interpreted to limit the definition of bankrupt.

34.               Amendment 2 would also insert a note after proposed subsection 4(6), to clarify that the Act might refer to a ‘bankrupt’ or a ‘bankrupt party’. This is intended to ensure the reader understands that proposed subsection 4(6) would apply in either case.

35.               Amendment 2 would also insert an application clause that would provide that proposed subsection 4(6) applies to proceedings that commence before, on, or after the commencement of the provision. A bankruptcy trustee should be able to join proceedings that have already commenced to ensure consistency in decisions relating to family law proceedings dealing with property vested in a trustee. To exclude trustees would significantly diminish their powers to properly administer the estate of a bankrupt (whether or not the bankrupt is discharged) in accordance with trustee obligations under bankruptcy law.

Amendment 3: Schedule 6, items 19 and 20, page 18 (lines 5 to 12)

36.               Amendment 3 would omit items 19 and 20 from Schedule 6 to the Bill. These amendments were intended to limit the ability of the family law courts to appoint family consultants to supervise compliance with final parenting orders, to when there are exceptional circumstances. By omitting these items, the status quo, that the family law courts can appoint family consultants to supervise final parenting orders at their discretion, is maintained.

37.               In her submission to the Committee inquiry on the Bill, the then Chief Justice of the Family Court of Australia, the Hon Diana Bryant AO QC, advised that although she had requested this amendment that would impose the exceptional circumstance criteria, subsequent circumstances had led her to reconsider that position, and that those circumstances had persuaded her to no longer support the amendment. In deference to the former Chief Justice, this amendment would omit that measure from the Bill.

Amendments 4 and 5: Schedule 6, item 35, page 20 (lines 21 and 24)

38.               Together, the amendments related to making arrests are intended to implement the recommendation at paragraph 2.15 of Scrutiny Digest No.5 of 2017 and implement, in part, recommendation 4 of the Report.

39.               Paragraph 2.15 of Scrutiny Digest No.5 of 2017 recommended that proposed paragraph 122A(1)(i) be amended to ensure that the power to use reasonable force and the powers of entry and search in proposed sections 122A and 122AA be confined to ABF officers rather than all APS employees in the then Department of Immigration and Border Protection (now the Department of Home Affairs). Recommendation 4 of the Report recommended that the Bill be amended to limit arrest powers and use of force so that they apply only to employees of the Australian Border Force that have received appropriate training. These amendments (amendments 4 and 5) would, consistent with those recommendations, narrow the potential arresters who can be authorised to use powers under proposed sections 122A and 122AA.

40.               As currently drafted, proposed paragraph 122A(1)(i) would allow any person who is an APS employee in the Department administered by the Minister administering the Australian Border Force Act 2015 (ABF Act) to be authorised as an arrester. Under the Administrative Arrangement Orders, this would have meant that any employee of the Department of Home Affairs could be authorised for the purposes of sections 122A and 122AA, and proposed paragraph 122A(1)(h) further provides that the ABF Commissioner (the Commissioner) can be authorised as an arrester for the purposes of sections 122A and 122AA.

41.               Amendment 4 would omit proposed paragraph 122A(1)(h). The intention of providing ABF officers with powers under 122A and 122AA is to ensure that relevant officers can utilise those powers where necessary at the border. It is unlikely that the Commissioner would be personally involved in exercising arrest powers, so there is no need for those powers to vest in the Commissioner.

42.               The Commissioner also has broad delegation powers under section 25 of the ABF Act. These include the power under subsection 25(1) to delegate, in writing, any of the Commissioner’s functions or powers under a law of the Commonwealth to certain specified persons. This list of persons is broader that the list of arresters under section 122A. While specific powers can be deliberately excluded from the list of delegable powers (see, for example, subsection 25(2) of the ABF Act), because there is no strong policy rationale for the Commissioner to be included as person who can be authorised, the amendment would instead omit the Commissioner from the list of arresters and thereby remove the need for an amendment to the ABF Act to prevent the delegation of such a power.

43.               Amendment 5 would add ‘and who is in the Australian Border Force (within the meaning of that Act)’ to the end of paragraph 122A(1)(i). This wording is similar to wording used to identify officers of the ABF in the ABF Act (see, for example, paragraph 25(1)(b) of the ABF Act). As a result of this amendment, the only officers of the Department of Home Affairs who could be authorised arresters for the purpose of section 122A and 122AA would be those who are members of the ABF.

44.               Recommendation 4 of the Report and paragraph 2.15 of Scrutiny Digest No.5 of 2017 further recommended that the powers in sections 122A and 122AA should only be available to ABF officers when those officers have received appropriate training. Consistent with existing arrest powers that are available to ABF officers in the ABF Act, the Migration Act 1958 and the Customs Act 1901 , ensuring that an ABF officer has sufficient training is a responsibility that is most appropriately handled as an administrative matter.

45.               Additionally, legislatively requiring specific training requirements for an ABF officer to be authorised as an arrester for the purposes of sections 122A and 122AA would be inconsistent with the requirements on other arresters specified in paragraphs 122A(1)(a)-(g), as no analagous requirement applies to those groups.

Amendment 6: Schedule 6, item 44, page 24 (lines 9 to 12)

46.               The amendment would repeal existing 65Y of the Family Law Act and substitute section 65Y to make it consistent with the new proposed offences of retaining a child overseas at proposed sections 65YA and 65ZAA.

47.               The amendment would remove the offence-specific defence that requires the defendant to bear the evidential burden of proof that the removal of the child was done in accordance with an order of a court or with the written consent of the other party/ies. Under proposed substituted section 65Y, the prosecution would bear the burden of proof, i.e. to prove that there is order of a court or written consent permitting the child to be taken or sent overseas.

48.               The details of the amendment are as follows:

·            First, the amendment would omit and substitute the heading to section 65Y. This amendment is consequential to the insertion of section 65YA by Item 45 of Schedule 6 of the Bill. The current title of section 65Y is “ Obligations if certain parenting orders have been made ”. After the insertion of section 65YA, the current title would be misleading as section 65YA will also contain obligations that apply if certain parenting orders have been made.

The new title substituted by this amendment would be “Obligations if certain parenting orders have been made: taking or sending a child outside Australia”. This more specific title better clarifies the purpose and effect of section 65Y.

·            Second, the amendment would provide that a person commits an offence where:

o     a parenting order to which Subdivision E of Division 6 of Part VII of the Act applies is in force in relation to the child, and

o     the child is taken or sent from Australia to a place outside Australia, by, on behalf of, or at the request of, a party to the proceedings in which the parenting order was made without the consent in writing (authenticated as prescribed) of each person in whose favour the parenting order was made or in accordance with the order of a court.

Regulation 13 of the Family Law Regulations 1984 sets out the requirements for the authentication of consent in writing for existing offence provisions in the Act relating to international parental child abduction. The regulation requires that a consent in writing must be authenticated by a person mentioned in section 8 of the Statutory Declarations Act 1959 endorsing on the consent a statement that:

o     the person is satisfied about the identity of the person signing the consent; and

o     the consent was signed in the person’s presence.

It is intended that, following the enactment of these amendments, regulation 13 would also be amended to refer to the new subparagraph 65Y(c)(i).

·            Third, the amendment would also insert a note to substituted section 65Y stating that the ancillary offence provisions of the Criminal Code , including section 11.1 (attempt), apply in relation to the offence in substituted section 65Y. ‘Ancillary offence’ is a defined term in the dictionary of the Criminal Code , and the specific mention of the offence of attempt is not intended to exclude the application of any other ancillary offence.

·            Fourth, the penalty for the offence is equivalent to existing section 65Y and is 3 years’ imprisonment.

·            Fifth, the amendment would insert a new defence of fleeing family violence. This is intended to address recommendation 2 of the Report.

The proposed defence of fleeing family violence is modelled on the defence of self-defence under section 10.4 of the Criminal Code . Similar to self-defence, the proposed defence includes both a subjective and an objective element.

The defence would be satisfied if it was reasonable to have carried out the conduct constituting the offence of removing a child overseas (the objective element) in response to the defendant’s own perceptions that it was necessary to take the action they did to prevent family violence (the subjective element).

Amendment 7: Schedule 6, item 45, page 24 (line 17)

49.               Amendment 7 is a technical amendment consequential to the proposed insertion of new subsection 65YA(2) by amendment 8. Amendment 7 assigns a subsection number to the existing text of section 65ZYA to accommodate the insertion of the new subsection by Amendment 8.

Amendment 8: Schedule 6, item 45, page 25 (lines 1 to 4)

50.               Amendment 8 would make small changes to the wording of proposed paragraph 65YA(c) that would provide that further consent can be given, authenticated in writing (pursuant to regulation 13 of the Family Law Regulations 1984 ), or a further order of the court made, to authorise the retention of the child overseas. Under the provisions, an offence will not be committed if written consent (authenticated as prescribed) is given, or an order of a court made , subsequently to the child/ren being taken from Australia. 

51.               As noted above, regulation 13 of the Family Law Regulations 1984 sets out the requirements for the authentication of consent in writing for existing offence provisions in the Act relating to international parental child abduction.

52.               It is intended that, following the enactment of these amendments, regulation 13 would also be amended to refer to the new paragraph 65YA(b)(i).

Amendment 9: Schedule 6, item 45, page 25 (after line 13)

53.               Amendment 9 would add a defence of fleeing family violence that would apply to the proposed offence, in proposed section 65YA, of unlawfully retaining a child outside Australia in cases where certain parenting orders have been made. This is intended to address recommendation 2 of the Report.

54.               The proposed defence of fleeing family violence is modelled on the defence of self-defence under section 10.4 of the Criminal Code . Similar to self-defence, the proposed defence includes both a subjective and an objective element.

55.               The defence would be satisfied if it was reasonable to have carried out the conduct constituting the offence of removing a child overseas (the objective element) in response to the defendant’s own perceptions that it was necessary to take the action they did to prevent family violence (the subjective element).

Amendment 10: Schedule 6, item 46, page 25 (lines 14 to 18)

56.               The amendment would repeal existing section 65Z and substitute a new section 65Z to make it consistent with the new proposed offences of retaining a child overseas at proposed sections 65YA and 65ZAA.

57.               Similar to amendment 6 referred to above, amendment 10 would also remove the offence-specific defence that requires the defendant to bear the evidential burden of proof that the removal of the child was done in accordance with an order of a court or with the written consent of the other party/ies. Under proposed substituted section 65Z the prosecution would bear the burden of proof to prove that there is no court order or written consent permitting the child to be taken or sent overseas.

58.               The details of the amendment are as follows:

·            First, the amendment would omit and substitute the heading to section 65Z. This amendment is consequential to the insertion of section 65ZAA by Item 47 of Schedule 6 of the Bill. The current title of section 65Z is “Obligations if proceedings for the making of certain parenting orders are pending”. After the insertion of section 65ZAA, the current title would be misleading as section 65ZAA will also contain obligations that apply if certain parenting orders are pending.

The new title substituted by this amendment would be “Obligations if proceedings for the making of certain parenting orders are pending: taking or sending a child outside Australia”. This more specific title better clarifies the purpose and effect of section 65Z.

·            Second, the amendment would provide that a person commits an offence where:

o     Part VII proceedings for the making, in relation to a child, of a parenting order to which this Subdivision applies are pending, and

o     the child has is taken or sent from Australia to a place outside Australia, by, on behalf of , or at the request of a person who is a party to the Part VII proceedings, and

o     the child has been taken or sent from Australia to a place outside Australia without the consent in writing (authenticated as prescribed) of each person to the Part VII proceedings or in accordance with an order of a court made after the institution of the Part VII proceedings.

As noted above, regulation 13 of the Family Law Regulations 1984 sets out the requirements for the authentication of consent in writing for existing offence provisions in the Act relating to international parental child abduction.

It is intended that, following the enactment of these amendments, regulation 13 would also be amended to refer to the new subparagraph 65Z(c)(i).

·            Third, the amendment would also insert a note to substituted section 65Z stating that the ancillary offence provisions of the Criminal Code , including section 11.1 (attempt), apply in relation to the offence in substituted section 65Z. ‘Ancillary offence’ is a defined term in the dictionary of the Criminal Code , and the specific mention of the offence of attempt is not intended to exclude the application of any other ancillary offence.

·            Fourth, the penalty for the offence is equivalent to existing section 65Z and is 3 years’ imprisonment.

·            Fifth, the amendment would add a defence of fleeing family violence. This is also intended to address recommendation 2 of the Report.

The proposed defence of fleeing family violence is modelled on the defence of self-defence under section 10.4 of the Criminal Code . Similar to self-defence, the proposed defence includes both a subjective and an objective element.

The defence would be satisfied if it was reasonable to have carried out the conduct constituting the offence of removing a child overseas (the objective element) in response to the defendant’s own perceptions that it was necessary to take the action they did to prevent family violence (the subjective element).

Amendment 11: Schedule 6, item 47, page 25 (line 24)

59.               Amendment 11 is a technical amendment consequential to the proposed insertion of new subsection 65ZAA(2) by amendment 13. Amendment 10 assigns a subsection number to the existing text of section 65ZAA to accommodate the insertion of the new subsection by amendment 13.

Amendment 12: Schedule 6, item 47, page 26 (lines 4 to 7)

60.               Amendment 12 would make small changes to the wording of proposed paragraph 65ZAA(c) offence that would permit further consent to be given, authenticated in writing (pursuant to regulation 13 of the Family Law Regulations 1984 ), or further order of a court made, to authorise the retention of the child overseas. Under the provisions, an offence will not be committed if written consent (authenticated as prescribed) is given, or an order of a court made, subsequently to the child/ren being taken from Australia. 

61.               As noted above, regulation 13 of the Family Law Regulations 1984 sets out the requirements for the authentication of consent in writing for existing offence provisions in the Act relating to international parental child abduction.

62.               It is intended that, following the enactment of these amendments, regulation 13 would also be amended to refer to the new subparagraph 65ZAA(b)(i).

Amendment 13: Schedule 6, item 47, page 26 (after line 14)

63.               Amendment 13 would add a defence of fleeing family violence that would apply to the proposed offence, under proposed section 65ZAA, of unlawfully retaining a child outside Australia in cases where proceedings for court orders are pending. This is also intended to address recommendation 2 of the Report.

64.               The proposed defence of fleeing family violence is modelled on the defence of self-defence under section 10.4 of the Criminal Code . Similar to self-defence, the proposed defence includes both a subjective and an objective element.

65.               The defence would be satisfied if it was reasonable to have carried out the conduct constituting the offence of removing a child overseas (the objective element) in response to the defendant’s own perceptions that it was necessary to take the action they did to prevent family violence (the subjective element).

Amendment 14: Schedule 6, page 26, (after line 14)

66.               Similar to amendments 6 and 10 referred to above, new items 47A and 47B of Schedule 6 would reframe the offences at section 65ZA and 65ZB of the Act and remove the offence-specific defence that requires the defendant to bear the evidential burden of proof that the removal of the child was done in accordance with an order of a court or with the written consent of the other party/ies. Under proposed substituted subsections 65ZA(1) and 65ZB(1) the prosecution would bear the burden of proving that there is no authority permitting the child to be taken or sent overseas.

67.               The reframed sections 65ZA and 65ZB would continue to include the offence-specific defence of ‘reasonable excuse’ in subsections 65ZA(2) and 65ZB(2). Therefore a person would not commit an offence against subsection 65ZA or 65ZB if the person can show that they had a reasonable excuse for taking or sending the child overseas.

68.               The note to subsection 65ZA(2) and 65ZB(2) would indicate that the person bears the evidential burden in relation to this matter (see subsection 13.3(3) of the Criminal Code ).

69.               The penalties for the offences at substituted subsections 65ZA(1) and 65ZB(1) are equivalent to existing subsections 65ZA(2) and 65ZB(2), and are both 60 penalty units.

70.               New item 47C of Schedule 6 is a technical amendment consequential to the proposed repeal and substitution of subsections 65ZA(2) and 65ZB(2) for subsections 65ZA(1) and 65ZB(1) by new items 47A and 47B of Schedule 6, respectively.

Amendment 15: Schedule 6, item 52, page 27 (lines 7 and 8)

71.               Amendment 15 is a technical amendment and would omit the reference to sections 65Y and 65Z from the application provisions. This means that the proposed sections 65Y and 65Z only apply to a child taken or sent from Australia on or after the commencement of the Division, or to a child taken or sent from Australia before the commencement of the Division, if the period specified in the consent or order in accordance with which the child was taken or sent ended after that commencement or was extended so that it ended after that commencement. 

Amendment 16: Schedule 6, page 27 (after line 8) after item 52

72.               Amendment 16 would insert a savings provision. This amendment would ensure regulation 13 of the Family Law Regulations 1984 , which was made for the purposes of existing offences under the Act, is protected and would continue to apply to the new and amended offence provisions. The amendment would ensure that authorised arrangements, for which consent has been authenticated in writing, as required by the regulation, would not be subject to the new, and amended, offence provisions. It also ensures that parents have a means of securing consent to protect behaviour that would otherwise constitute the commission of an offence. 

Schedule 8—Amendments of the Legislation Act 2003

Amendment 17: Schedule 8, page 38 (after line 17)

73.               Amendment 17 would amend the heading of subsection 15T(7) of the Legislation Act 2003 to remove references to the ‘lapse or expiry’ of an Act or instrument. This is a technical amendment to better reflect the proposed amendment to the text of paragraph 15T(7)(a) by item 5 of Schedule 8 to the Bill. The amendment is not intended to have an effect beyond that amendment.