Helen Polley (Tasmania, Australian Labor Party, Shadow Assistant Minister to the Leader (Tasmania)) Share this | Hansard source

The majority of this bill 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 modelling, simplifying and clarifying existing provisions and by repealing redundant provisions. Some more-substantial changes to the existing legislation are also included in this bill, and I will briefly discuss those amendments shortly. This bill amends the following acts: Acts Interpretation Act 1901; Archives Act 1983; Bankruptcy Act 1996; Domicile Act 1982; Evidence Act 1995; Family Law Act 1975; International Arbitration Act 1974; Legislation Act 2003; Marriage Act 1961; and 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 that 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 are remainder of the bill, which is not controversial. The committee made several substantial recommendations for improvement 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 will implement relates to the amendments to the Bankruptcy Act. Schedule 3 of the bill will make an amendment to the Bankruptcy Act that will 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 that the bill be amended. Labor is pleased that the government has accepted the Law Council's advice and has 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 invested 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. 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 manager 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 concerns that there are circumstances where it would be inappropriate to expose parents or others to criminal sanctions for taking, sending or retaining a child outside Australia—for instance, where there is evidence 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 domestic violence. The committee formed the view that the bill should be amended to include a defence of fleeing family violence to ensure that the existing and proposed offences of unlawful transfer and retention of children abroad do not apply in the circumstances of family violence. Labor is pleased that the government has accepted this recommendation of the committee. Labor is firmly committed to responding to family violence and supports measures that reduce gender inequality. That is why we believe in supporting legislative reform to deal better 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 of these new provisions. Most of that debate was quite technical in nature and I will not recite the many iterations of these provisions here, but I note that the final form of the amendments to several of the provisions of this bill dealing with children being taken overseas are acceptable to Labor.

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 the powers of entry and search for the purpose of arresting a person. 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 other federal courts, that they are broader than the arrest powers available to police officers in the Crimes Act 1914 and that they lack limits and safeguards. The bill authorises additional persons to make arrests under the Family Law Act, including a marshal, a deputy marshal, a sheriff, a deputy sheriff, a 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 could be amended to require a certain level of relevant training to be undertaken by 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 apply 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 only to employees of the Australian Border Force in order to ensure that coercive powers are only being delegated to appropriate persons.

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. Labor is pleased to support the bill.