Chapter 1Introduction
1.1On 11 May 2023, the Senate referred the provisions of the Family Law Amendment (Information Sharing) Bill 2023 (theInformation Sharing Bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 14 June 2023.
1.2The Information Sharing Bill would amend the Family Law Act 1975 (theFamilyLawAct) to operationalise key aspects of the National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems (the National Framework). Theproposals contained in the Bill aim to:
establish an enhanced court-led information sharing framework for information relating to family violence, child abuse and neglect risks in parenting proceedings before the Federal Circuit and Family Court of Australia, and the Family Court of Western Australia (family law courts).
Conduct of the inquiry and acknowledgement
1.3In accordance with its usual practice, the committee advertised the inquiry on its website and wrote to organisations and individuals inviting submissions by 26 May 2023. The committee received 13 submissions, which are listed at Appendix1, and thanks those individuals and organisations who contributed to the inquiry.
Scope and structure of the report
1.4This report comprises two chapters:
Chapter 1 provides background information relating to the InformationSharing Bill, outlines its key proposals, and notes consideration of the proposed legislation by other parliamentary committees; and
Chapter 2 examines some of the key issues raised by stakeholders and sets out the committee's findings and recommendations.
Background and key proposals
1.5In November 2021, the Meeting of Attorneys-General (now the Standing Council of Attorneys-General) endorsed the National Framework. Theobjective of this framework is to:
…promote the safety and wellbeing of adults and children affected by family violence, child abuse and neglect, and support informed and appropriate decision-making in circumstances where there is, or may be, a risk of family violence, child abuse or neglect.
1.6On 29 March 2023, the Attorney-General, the Hon Mark Dreyfus MP, introduced the Information Sharing Bill into the Parliament, affirming the federal government’s commitment to ‘ensure that children and families do not fall between the gaps of the federal family law system, and the state and territory family violence and child protection systems’.
1.7The Attorney-General commented on the ‘disappointing reality’ that ‘family violence, child abuse and neglect continue to permeate our community’. Henoted:
The significant numbers of matters referred to state and territory child welfare agencies, and the prevalence of family violence and child abuse risk within family law matters, demonstrates a need to ensure these federal, state and territory systems are joined up when supporting and responding to the children and families accessing them.
1.8The Explanatory Memorandum (EM) to the Information Sharing Bill (EM) contextualised these comments, as follows:
Court data shows that family violence was alleged in 80% of matters filed in the Federal Circuit and Family Court of Australia during the 2021-22 financial year… Importantly, 76% of matters were referred to State and Territory welfare agencies as a result of alleged or identified risks.
1.9The EM referenced section 60CA of the Family Law Act, which requires the court to regard the best interests of a child as the paramount consideration when making parenting orders, including the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (paragraph 60CC(2)(b)).
1.10Under the Family Law Act, the family law courts are empowered to seek information to fulfil this obligation. However, the EM stated that incomplete or inconsistent information sharing practices between the intersecting federal family law and state and territory family violence and child protection systems is increasing risk for children and adults accessing these systems.
1.11According to the EM, the Information Sharing Bill intends to build upon and enhance these processes to ‘improve the efficiency and effectiveness of information sharing between the family law, family violence and child protection systems’.
Key proposals
1.12The Information Sharing Bill comprises one schedule of proposed amendments to the Family Law Act. The key item (item 7) would create an information sharing framework, with the insertion of Subdivision DA into Division 8 in Part VII of the Family Law Act. The main proposals would:
introduce two different types of information sharing orders;
broaden the scope of information able to be sought through the information sharing orders;
expressly outline legal exclusions to information sharing; and
introduce a restriction on the issue of subpoenas without leave of the court.
1.13The proposed subdivision is intended to ensure:
…that the family law courts are able to access all relevant information relating to family violence, child abuse or neglect affecting a child concerned in proceedings, or a party to proceedings, when considering what is in the best interests of the child and determining family law parenting matters.
1.14The EM highlighted that the proposed measures respond to recommendations from multiple independent and parliamentary inquiries. The EM noted that the Information Sharing Bill was developed in ‘close and lengthy’ consultation with various stakeholders, including the family law courts, state and territory courts and agencies, peak national non-government organisations, and legal professional bodies. Prior to its introduction into the Parliament, an exposure draft of the bill was released to these stakeholders, fora targeted five-week consultation.
Examination by other parliamentary committees
1.15When examining a bill or bills, the committee takes into account any relevant comments published by the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) and the Parliamentary Joint Committee on Human Rights (Human Rights Committee).
1.16The Scrutiny of Bills Committee assesses legislative proposals against a set of accountability standards that focus on the effect of proposed legislation on individual rights, liberties and obligations, the rule of law and on parliamentary scrutiny. This committee examined the Information Sharing Bill and is seeking further information from the Attorney-General on the inclusion of significant matters (proposed legislative safeguards) in delegated legislation, rather than in the primary legislation.
1.17The Human Rights Committee examines bills and legislative instruments for compatibility with human rights and reports its findings to both Houses of Parliament. This committee examined the Information Sharing Bill and considered that it would limit the right to privacy, raising a concern with the proportionality of this limitation.