Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

The majority of this bill, the Civil Law and Justice Legislation Amendment Bill 2018, makes a number of minor, technical and uncontroversial amendments to legislation relating to civil justice. The many amendments to existing legislation in this omnibus bill are intended to improve the operation and clarity of civil justice legislation, primarily by modernising, simplifying and clarifying existing provisions and by repealing redundant provisions. Some more substantial changes to existing legislation are also included in this bill, and I will discuss those amendments shortly.

The bill amends the following acts: 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, the International Arbitration Act 1974, the Legislation Act 2003, the Marriage Act 1961 and the Sex Discrimination Act 1984. The bill 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 those comments in more detail. The committee received no comments on the remainder of the bill, which is not controversial. The committee made several 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 those recommendations of the committee to make improvements to the bill, and Labor is supporting the bill on that basis.

The first recommendation of the committee that the government has implemented relates to the 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, '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 definitions of 'bankrupt' and 'bankrupt party to a marriage' be clarified. The committee agreed with the Law Council and recommended that 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:

The second recommendation of the committee that the government has implemented relates to the amendments to the Family Law Act. The 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.

Next, I wish to comment on the aspects of this bill that relate to family violence. 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, in some cases, that 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 that 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 very pleased that the government has accepted this recommendation of the committee. Labor is firmly committed to responding to family violence and to 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 their abuser will not be committing an offence.

There was considerable debate over some months between the government and the opposition about the most appropriate form for these new provisions. Most of that debate was quite technical in nature and I will not recite the many iterations of those provisions here, but I note that the final form of the amendments to several of the provisions in this bill dealing with children being taken overseas are acceptable to Labor. There has been quite some time taken between the time at which the Senate committee reported and the eventual production of this bill with appropriate amendments in this House, but it has been time spent on making sure that the provisions are in the most acceptable form possible to achieve the policy aim that the committee noted and that Labor supports.

There are further comments that I wish to make in relation to the arrest powers. 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 to the Senate committee, 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 other federal courts, are broader than the arrest powers available to police officers in the Crimes Act 1914, and lack limits and safeguards. The 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 also 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 applied to employees of the Australian Border Force who have received appropriate training. 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, in order to ensure that coercive powers are only being delegated to appropriate persons.

Finally, I come to the amendments that this bill would make to the Sex Discrimination Act. The bill 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. It is an anachronistic provision. Labor fully supports this change, which removes gender restrictions from combat roles and is an important step towards equal opportunity for women. Labor is pleased to support the bill.

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