House of Representatives/Senate

Civil Law and Justice Legislation Amendment Bill 2017

Second Reading Speech

Mr PORTER (Pearce-Attorney-General)

I present the explanatory memorandum to this bill and move:

That this bill be now read a second time.

The Civil Law and Justice Legislation Amendment Bill is an omnibus bill which would amend 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 would make minor and technical amendments to modernise, simplify and clarify the legislation, and to repeal redundant provisions. The combined effect of these amendments would improve the efficiency and operation of the civil justice system.

The government aims to make all Commonwealth legislation coherent, readable and accessible to the widest possible audience. To this end, this bill would amend the Acts Interpretation Act and the Legislation Act to clarify the validity of ministerial acts and the management of compilations of legislation on the Federal Register of Legislation.

The government also aims to make Australia's archival record accessible to the broadest range of applicants possible. To this end, amendments to the Archives Act would assist the National Archives of Australia to appropriately manage requests for records from high-volume applicants and make other minor and technical amendments to the act. The proposed amendments would also simplify the interpretation of the Domicile Act by specifying within the act the external territories to which the Domicile Act applies. This would replace an existing specification of those territories in the regulations, and that regulation could then be repealed. The bill would also amend the Evidence Act to align the time frame for the presumed receipt of postal articles with current Australia Post delivery times.

The bill also reflects the government's commitment to maintain its place in the international legal environment by amending the International Arbitration Act to help ensure that Australian arbitral law and practice stay on the global cutting edge, so that Australia continues to gain ground as an attractive arbitration jurisdiction.

Amendments to the Sex Discrimination Act would repeal obsolete provisions. The bill would repeal the combat duties exemption in section 43 of the Sex Discrimination Act that allows discrimination against women in connection with employment, engagement or appointment in Australian Defence Force positions involving combat duties. The exemption is no longer necessary, as the Australian government's policy to remove all gender restrictions from Australian Defence Force combat roles was fully implemented on 1 January 2016. Repealing this provision is consistent with Australia's intention to withdraw its related combat duties reservation to the Convention on the Elimination of all forms of Discrimination Against Women.

Minor and technical amendments contained in the bill would improve the operation of the Family Law Act by clarifying existing laws, simplifying processes and remedying inconsistencies. The bill would make amendments to provide the same rights to de facto and married couples, when instituting maintenance or property proceedings. The bill would also amend the Family Law Act to clarify that the admissibility provisions in the Evidence Act relating to evidence obtained in an improper or illegal manner apply to disclosures of child abuse made to family consultants.

The bill would also amend the Family Law Act to provide new offences of retaining a child overseas without parental consent or a court order, and these new offences would complement the existing international parental child abduction offences which apply when a child is unlawfully removed or taken overseas. The existing international child abduction offences would also be amended to conform to current drafting practice and provide that the prosecution bears the burden of proving that consent or a court order permitting the taking of a child overseas did not exist. Further, the bill would add a new defence of fleeing family violence for these offences. The unauthorised removal or retention of a child overseas would be excused if this was to escape family violence.

The bill would assist the operation of the Family Court of Australia in a number of ways. The bill would amend the Family Law Act procedure for appointing members of the Family Court of Australia Rules Advisory Committee, to be consistent with the process for appointment of a similar committee advising the Chief Judge of the Federal Circuit Court of Australia. Other amendments to the Family Law Act would clarify the range of persons who may perform the powers of the registry managers in the Family Court of Australia and any other court. The Bankruptcy Act would be amended to clarify that the Family Court of Australia has bankruptcy jurisdiction when a trustee applies to have a binding financial agreement set aside under the Family Law Act. The bill would also make amendments to the Bankruptcy Act to ensure the bankruptcy trustee can be represented in family law proceedings relating to property of a discharged bankrupt person which is vested in the trustee.

The bill would also make minor, technical amendments to the Marriage Act. Many of these amendments are aimed at improving the operation of the Marriage Celebrants Program. These measures would enhance administrative efficiency by making improvements to the annual celebrant registration charge process. The bill would also formalise an existing expectation that marriage celebrants comply with any disciplinary measures imposed by the Registrar of Marriage Celebrants and clarify that the Register of Marriage Celebrants is the publicly available list published on the internet.

In addition, the bill would provide that, where state and territory employees are appointed according to their position title to perform functions under the Marriage Act, they may be referred to on the register by their position title rather than their individual name. The bill would also remedy a defect in the legislation to remake provisions in relation to the registrar of overseas marriages that were repealed in 2002.

In conclusion, therefore, the intention of the bill is to make minor and technical amendments to a number of acts to increase access to justice for all Australians by improving the operation and clarity of civil justice legislation. Significantly, the amendments contained within the bill would improve the civil justice system by making it easier for individuals to understand and comply with the law, and I commend the bill to the House.