House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019

9. This Bill is 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 Bill

10. The Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 (the Bill) makes the necessary amendments to other Commonwealth Acts and Regulations affected by the passage of the Federal Circuit and Family Court of Australia Bill 2019 (the FCFC Bill). In particular, for general federal law matters (not including family law or child support), the Bill provides for transfers to be made from the FCFC (Division 2) to the Federal Court of Australia (Federal Court), either pursuant to an order from the Federal Court (known as the 'uplift power') or an order from the FCFC (Division 2). The Bill supports the single point of entry for family law matters as introduced by the FCFC Bill through amending provisions to ensure proceedings are instituted in the FCFC (Division 2). The Bill also provides transitional arrangements for the introduction of the Federal Circuit and Family Court of Australia (FCFC).

11. Many of the amendments required to other legislation are nominal: references to the Family Court of Australia (Family Court) or the Federal Circuit Court of Australia (Federal Circuit Court) need to be updated to refer to the FCFC (Division 1) or the FCFC (Division 2), respectively. As such, there are many rights that are tangentially engaged by the Bill, due to the legislation it amends. This tangential engagement with rights is not discussed in this statement of compatibility, as directed by the Committee. ^[1] The Bill, however, does make some substantive changes.

12. The Bill repeals Parts IV and IVA of the Family Law Act 1975, which provided for the creation and management of the Family Court. The FCFC Bill continues the Family Court as the FCFC (Division 1), and the new management provisions of that Court can be found there. The Bill also repeals Part X of the Family Law Act, which provided for appeals under that Act. Appeals are now largely provided for in the FCFC Bill. The Bill provides for appeals from courts of summary jurisdiction under the Family Law Act.

13. Finally, the Bill makes arrangements to manage the transition from the Family Court and the Federal Circuit Court to the FCFC (Division 1) and FCFC (Division 2), respectively.

Human rights implications

14. The Bill directly engages the following human rights:

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right to a fair and public hearing: Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR)

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right to an effective remedy: Article 2(3) of the ICCPR

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rights of parents and children: Article 24(1) of the ICCPR, and Article 3 of the Convention on the Rights of the Child (CRC)

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right to respect for the family: Article 23 of the ICCPR

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right to security of the person: Article 9 of the ICCPR.

Right to a fair and public hearing, and to an effective remedy - Article 14(1) and 2(3) of the 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. Article 2(3) requires States to ensure that any person whose rights and freedoms as stipulated in the ICCPR are violated, that person shall have an effective remedy, which is to be determined by a competent judicial authority. This Bill engages both of these rights by creating an 'uplift power' for the Federal Court, and through the transitional provisions.

Supporting a single point of entry into the federal family law court system

16. Items 28 to 33, 37 to 47, 49 to 52, 57, 58, 63 to 68, 74, 75, 92 to 97 of the Bill promote the right to a fair and public hearing by a competent, independent and impartial tribunal established by law under Article 14 of the ICCPR through facilitating a single point of entry into the federal family law court system. Items 37 to 47, 49 to 52, 74, 75, and 92 to 94 confer original jurisdiction on the FCFC (Division 2), and items 28 to 33, 57, 58, 63 to 68 and 95 to 97 provide for filing of applications, transfers from State and Territory courts and referrals of questions of law to the FCFC (Division 2). These items mean that matters will have to first pass through the FCFC (Division 2), enabling the single point of entry. Once proceedings are instituted in the FCFC (Division 2), family law and child support matters may then be transferred between the FCFC (Division 2) and the FCFC (Division 1). These items support the single point of entry into the federal family law court system and will provide Australian families with a greater certainty and consistency in their family law proceedings. These items will increase Australian families' access to justice and promote the right to a fair and public hearing by a competent, independent and impartial tribunal and the right to an effective remedy. See the FCFC Bill and explanatory material for further information.

'Uplift power'

17. Item 220 of Schedule 1 engages the right to a fair hearing, under Article 14 of the ICCPR, and engages the right to an effective remedy under Article 2(3) of the ICCPR. Item 220 introduces sections 32AC and 32AD into the Federal Court of Australia Act 1976 and creates an 'uplift power' for the Federal Court, which allows for a matter that is not a family law or child support proceeding to be transferred from the FCFC (Division 2) to the Federal Court, on the application of a party to the proceeding, or on the Federal Court's own initiative. The factors to be taken into account in exercising this power may be set out in the Federal Court Rules 2011. While the power for the FCFC (Division 2) to transfer a proceeding to the Federal Court on its own motion is retained, this power ensures that the transfer would not come into effect unless the Federal Court is satisfied that it is appropriate that the proceeding be heard in the Federal Court. These provisions are proposed to prevent circumstances in which matters can be transferred to the Federal Court only to be transferred back to the Federal Circuit Court. This unnecessarily increases delay ^[2] and cost, which can be prohibitive upon litigants in seeking an effective remedy. By providing the Federal Court an uplift power, item 220 rectifies these challenges currently faced by the courts and litigants and thus promotes both the right to a fair hearing under Article 14 and the right to an effective remedy under Article 2(3) of the ICCPR.

Transitional provisions

18. The transitional provisions in Schedule 5 of the Bill engage with the right to a fair and public hearing in Article 14(1) of the ICCPR and the right to an effective remedy in Article 2(3) of the ICCPR. Schedule 5 provides the transitional arrangements for the court reform amendments. Schedule 5 provides for the continuity of the Family Court and the Federal Circuit Court, their Judges, staff, and decisions made by these offices. Schedule 5 also provides transitional arrangements for family law appeals that are on-foot as at the commencement day.

19. Schedule 5 ensures that litigants who have filed an appeal in respect of their family law proceedings are not disadvantaged as a result of the commencement of this Bill on the commencement day. To the extent possible, Schedule 5 ensures continuity in appeals proceedings that have commenced prior to the restructure taking effect, minimising confusion and unnecessary delay, and ensuring that litigants' right to a fair hearing and to an effective remedy are promoted.

Rights of parents and children and right to respect for the family - Article 23 and 24(1) of the ICCPR, Article 3 of the CRC

20. Article 24(1) of the ICCPR also provides for the protection of all children, without discrimination, by virtue of their status as minors. This is elaborated upon in Article 3 of the CRC, which requires that in all actions concerning children, including by courts, the best interests of the child are to be a primary consideration. The right to respect for the family is contained in Article 23 of the ICCPR, which recognises the family as the natural and fundamental group unit within society, and it is entitled to protection by society and the State.

Appeals from courts of summary jurisdiction

21. Item 69 of Schedule 1 relates to appeals from State or Territory courts exercising summary jurisdiction under the Family Law Act to the FCFC (Division 1) or a State or Territory Supreme Court. Item 69 provides that an appeal may be dismissed if there are no reasonable prospects of success. This may be considered a limitation on the rights of parents and children, as well as the right to the respect of the family, as it inhibits the ability of a litigant to challenge a decision of the FCFC. The legitimate objective of this provision is to ensure that the appeal system is not overburdened by litigants who are dissatisfied with a decision, despite its correctness under the law. On this basis, item 69 is reasonable and necessary to ensure the efficient and expeditious operation of the Courts for litigants in the family law system. There is a rational connection between item 69 and the objective, as it provides for the opportunity for an initial consideration of the grounds of appeal, before dismissing the appeal on the basis that it is without reasonable prospects of success. The provision is considered proportionate as applications for appeal receive an initial consideration prior to dismissal. Therefore, to the extent that item 69 is considered a limitation on Articles 23 and 24(1) of the ICCPR, and Article 3 of the CRC, the limitation is permissible.

Right to security of the person - Article 9 of the ICCPR

Transitional provisions

22. Item 38 of Part 5 of Schedule 5 provides for transitional rules, which include the power for the Minister to, by legislative instrument, make rules on prescribed matters of a transitional nature. Subitem 38(2) clarifies that the rules the Minister makes may not create an offence or provide powers of arrest or detention. This item engages Article 9 of the ICCPR, which provides that everyone has the right to liberty and security of the person and that no one shall be subjected to arbitrary arrest or detention. By restricting the Minister's power to makes Rules to matters that do not create offences or provide for powers of arrest or detention, item 38 ensures that the Minister cannot make Rules which subject a person to arbitrary arrest or detention.

Conclusion

23. 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.