Title Federal Circuit and Family Court of Australia Bill 2018
Database Explanatory Memoranda
Date 01-07-2019 01:01 PM
Source House of Reps
System Id legislation/ems/r6167_ems_29a13474-5658-469b-b42e-4175aa45d580


Federal Circuit and Family Court of Australia Bill 2018

 

 

2016 – 2017 – 2018

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA Bill 2018

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

Amendments to be Moved on Behalf of the Government

 

 

(Circulated by authority of the

Attorney-General, the Honourable Christian Porter MP)

               


 

AMENDMENTS TO THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA Bill 2018

(Government)

General Outline

1.                  The purpose of these amendments to the Federal Circuit and Family Court of Australia Bill 2018 (‘the Bill’) is to change the commencement date of the Bill.

2.                  The Bill would bring the Federal Circuit Court of Australia (the Federal Circuit Court) and the Family Court of Australia (the Family Court) together into an overarching, unified administrative structure to be known as the Federal Circuit and Family Court of Australia (FCFC). The structural reforms facilitated by the Bill would create a framework in the FCFC for common leadership, common management and a comprehensive and consistent internal case management approach.

3.                  The reforms would help Australian families resolve their disputes faster by improving the efficiency of the existing split family law system; provide appropriate protection for vulnerable people; and ensure the expertise of suitably qualified and experienced professionals support those families in need.

4.                  To provide these benefits as soon as practicable for Australian families, the provisions of the Bill provide for a commencement date of 1 January 2019.

5.                  On 23 August 2018, the Senate referred the Bill to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report. While the Committee had resolved to report by 26 November 2018, the Committee has since agreed that it will report at a time subsequent to that date. Given this timeframe, the Bill will not pass through the Parliament in time for the proposed commencement of the reforms on 1 January 2019.

6.                  Consequently, these amendments provide that the commencement date for the Bill is to be by Proclamation or if the provisions do not commence within the period of six months beginning on the day the Act receives Royal Assent, they commence on the day after the end of that period.

7.                  This commencement date would give Australian families certainty that the reforms would commence no later than six months after the Bill receives Royal Assent. It would also allow flexibility to ensure that appropriate arrangements, such as ICT changes, are implemented in the FCFC and the Federal Court of Australia prior to the commencement of the reforms.

 

FINANCIAL IMPACT

8.                  None.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Amendments to the Federal Circuit and Family Court of Australia Bill 2018

9.                  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.

Overview of the amendments

10.              The Bill brings the Family Court and the Federal Circuit Court together into an overarching, unified administrative structure to be known as the FCFC. The FCFC would comprise two divisions. The Federal Circuit and Family Court of Australia (Division 1) (FCFC (Division 1)) would be a continuation of the Family Court. The Federal Circuit and Family Court of Australia (Division 2) (FCFC (Division 2)) would be a continuation of the Federal Circuit Court.

11.              The structural reforms in the Bill would provide the impetus to: help Australian families resolve their disputes faster by improving the efficiency of the existing split family law system; provide appropriate protection for vulnerable people; and ensure the expertise of suitably qualified and experienced professionals supports those families in need. The FCFC would become the single point of entry into the family law jurisdiction of the federal court system for all Australian family law matters.

12.              To further ensure that these objects are met, the Bill provides for the making of regulations and, in particular, Rules of Court which govern the details, operations and practice and procedure of the FCFC. This statutory framework in its entirety would underpin the court forms, practice notes, directions and a consistent case management pathway for family law matters.

13.              The proposed Government amendments to the Bill replace references to a specific commencement date in the Bill with references to a day to be fixed by Proclamation, or if the provisions do not commence within the period of six months beginning on the day the Bill receives the Royal Assent, on the day after the end of that period. These amendments are necessary as the current commencement date of the Bill (1 January 2019) is considered unachievable in light of the timeframes for the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report into the Bill.

Human rights implications

14.              The amendments may engage the right to a fair and public hearing under Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR).

15.              Article 14(1) of the ICCPR enshrines the right of a person to have a fair and public hearing by a competent, independent and impartial tribunal established by law.

16.              The amendment to the commencement date in the Bill to a date to be fixed by Proclamation or, if the Bill does not commence within the period of six months beginning on the day it receives the Royal Assent, on the day after the end of that period, may limit this right by not affording the certainty of a specific commencement date of the reforms in the Bill. However, while this uncertainty may limit this right, the limitation is reasonable, necessary and proportionate.

17.              Commencement by Proclamation or six months after Royal Assent would allow the flexibility to ensure that operational preparations for implementation, such as new court ICT arrangements, are in place before the provisions commence. This would promote the right of a fair hearing by ensuring that Australian families have access to a federal court system that is underpinned by effective operational arrangements. Further, it will give Australian families certainty that the provisions will commence no later than six months after the Royal Assent. Prior to commencement, the Family Court and the Federal Circuit Court will continue to operate as they do currently.

Conclusion

18.              The Bill is compatible with human rights because it promotes the protection of human rights and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate to achieve the legitimate objectives of the Bill.

 

 


 

NOTES ON AMENDMENTS

Amendment 1: Clause 2, page 2 (table items 1 and 2)

1.                  Amendment 1 omits table items 1 and 2 in clause 2 of the Bill and replaces them with new table item 1. Clause 2 provides for the commencement of each provision of the Bill as set out in the table. Currently, table item 1 provides that sections 1 and 2 would commence on the day the Act receives Royal Assent. Table item 2 currently provides that sections 3 to 249 would commence on 1 January 2019.

2.                  New table item 1 provides for the commencement of the whole of the Act on a single day to be fixed by Proclamation. New table item 1 also provides that if the provisions do not commence within the period of six months beginning on the day the Act receives Royal Assent, they commence on the day after the end of that period.

3.                   This change recognises that, due to the timeframes for the Senate Legal and Constitutional Affairs Legislation Committee’s inquiry into the Bill, a commencement date of 1 January 2019 is unachievable.

Amendment 2: Clause 7, Page 8 (after line 9) after the definition of civil practice and procedure provisions

4.                  Amendment 2 inserts a definition of ‘commencement day’. The new definition provides that ‘commencement day’ means the day the Act commences.

5.                  The Act will commence on a date to be fixed by Proclamation, or if the provisions do not commence within the period of six months beginning on the day the Act receives the Royal Assent, on the day after the end of that period.

Amendment 3: Clause 8, Page 17 (line 6)

6.                  Amendment 3 omits the reference to ‘1 January 2019’ in clause 8(1) and replaces it with ‘the commencement day’. Clause 8(1) currently provides that the federal court known immediately before 1 January 2019 as the Family Court of Australia is continued in existence as the Federal Circuit and Family Court of Australia (Division 1). The change will provide that the federal court known immediately before the commencement day as the Family Court of Australia is continued in existence as the Federal Circuit and Family Court of Australia (Division 1).

Amendment 4: Clause 8, Page 17 (line 9)

7.                  Amendment 4 omits the reference to ‘1 January 2019’ in clause 8(2) and replaces it with ‘the commencement day’. Item 8(2) currently provides that the federal court known immediately before 1 January 2019 as the Federal Circuit Court of Australia is continued in existence as the Federal Circuit and Family Court of Australia (Division 2). The change will provide that the federal court known immediately before the commencement day as the Federal Circuit Court of Australia is continued in existence as the Federal Circuit and Family Court of Australia (Division 2).