Bills Digest No. 16, 2020–21
PDF version [510KB]
David Markham
Law and Bills Digest Section
7
October 2020
Contents
Purpose of
the Bill
Structure of
the Bill
Background
Committee
consideration
Policy
position of non-government parties/independents
Position of
major interest groups
Financial
implications
Statement of
Compatibility with Human Rights
Key issues
and provisions
Date introduced: 26
August 2020
House: Senate
Portfolio: Attorney-General
Commencement: The
main amendments (Part 1 of Schedule 1) commence on the seventh day after
Royal Assent. The contingent amendments (Part 2 of Schedule 1) are reliant
on the passage of other legislation, as will be explained.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at October 2020.
Purpose of
the Bill
The purpose of the Family Law Amendment (Risk Screening
Protections) Bill 2020 (the Bill) is to amend the Family Law Act 1975
(the Act) to ensure that family safety risk screening in the federal family law
courts can operate successfully by establishing protections for sensitive
information generated through the screening, and by conferring immunity on
court workers involved.
Structure of
the Bill
The Bill contains amendments set out in one Schedule. Part
1 of the Schedule contains the main amendments to the Act. Part 2 contains
consequential minor amendments, relating to nomenclature only, which will only
be implemented if the Federal
Circuit and Family Court of Australia Bill 2019 becomes law.[1]
If that does not occur, the proposed amendments in Part 2 will be void.[2]
Background
Over a considerable period of time various studies have
indicated that families with complex needs, including those related to
violence, are the predominant clients of the family law system.[3]
How justice for the litigating parties can be achieved in such circumstances
has been considered in a number of recent reviews of family law. In 2016 the
Family Law Council, an advisory body advising the Attorney-General on family
law matters, commented:
… a significant proportion of the dispute workload of
the family law system, and particularly among client families with complex
needs, is characterised by a history of family violence or other behaviours
that raise safety concerns for children. In order to support protective responses
to children in these cases, it is critical that each of the family law
system’s services and organisations, including the family courts, family
lawyers and family dispute resolution services, is able to screen, identify and
assess the presence of risk to the child at the earliest opportunity.[4]
Consequently the Council recommended:
Having regard to the issues of abuse, neglect and family
violence and the need for such evidence to be broadly available to protect
children, the Australian Government should incorporate a whole-of-family risk
assessment process into the family law system that is non-confidential and
admissible.[5]
Consistent with the general thrust of the Family Law
Council’s report, in a 2017 report the House of Representatives Standing
Committee on Social Policy and Legal Affairs said:
The Committee recommends that
the Australian Government introduces to the Parliament amendments to the Family
Law Act 1975 (Cth) to require a risk assessment for family violence be
undertaken upon a matter being filed at a registry of the Family Court of
Australia or the Federal Circuit Court of Australia, using the national family
violence risk assessment tool. The risk assessment should utilise the national
family violence risk assessment tool and be undertaken by an appropriately
trained family violence specialist provider.[6]
In its annual report for 2018–19, the Family Court
of Australia said:
During 2018–19, the Court considered a new approach to
risk assessment and triage that would assist in the early identification of
high-risk cases and enable better support for families in need of
assistance. The overarching goal is to improve the safety outcomes for
families involved in family violence-related cases.
The development of a risk screening tool to quickly identify
issues of family violence and people who are at significant risk of harm, is a
priority for the Court. The introduction of a screening tool would also enable
earlier information sharing with police and government agencies in high-risk
cases. The Court is also considering how early case assessment and screening
processes could be used to identify families with high needs and refer them to
external support services. The project is at an early stage of development,
however to fully complete and implement a new risk screening tool, the Court is
dependent on securing government funding.[7]
As noted by the Family Court, the implementation of a risk
assessment tool was dependent on additional funding for the Court. In December
2019, as part of the Mid-Year Economic and Fiscal Outlook 2019–20, the
Australian Government announced funding of $13.5 million over three years (with
$6.5 million allocated to both 2020–21 and 2021–22) in order to:
… pilot a screening and triage program for matters
being considered by family law courts, with three interconnected processes:
screening parenting matters for family safety risks at the point of filing;
triaging matters to an appropriate pathway based on the identified level of
risk; and maintaining a specialist list to hear matters assessed as involving a
high risk of family violence.[8]
The intention is to conduct the risk screening trial
between 2020 and 2022 at the Adelaide, Brisbane and Parramatta registries of
the federal family law courts, which collectively receive more than 42 per cent
of family law filings.[9]
A dedicated team will screen newly filed parenting matters for family safety
risks, and take appropriate action. Follow-up action will be taken by a family
counsellor in matters identified as high risk.[10]
The running of these trials demands some amendments to the
Act, largely to ensure that the highly sensitive information that will be
obtained and generated through the risk screening process is subject to
appropriate legal protections, and that there are appropriate protections for
the court workers who undertake these roles.[11]
A number of other issues related to family violence or unfairness
in the family law process have been addressed legislatively in recent years,
for example in the Family
Law Amendment (Family Violence and Other Measures) Act 2018 and the Family
Law Amendment (Family Law and Cross‑examination of Parties) Act 2018.
This Bill potentially represents another step in resolving risk issues in the
family law process.
Committee
consideration
Senate Standing Committee for the
Selection of Bills
In its report dated 3 September 2020, the Selection of
Bills Committee recommended the Bill not be referred to a Committee.[12]
Senate Standing Committee for the
Scrutiny of Bills
The Scrutiny of Bills Committee stated that it had no
comment on the Bill.[13]
Policy
position of non-government parties/independents
No comment on this Bill could be located.
Position of
major interest groups
No comment since the Bill was tabled could be located.
Financial
implications
There are no financial implications from implementing the
Bill, beyond the previously announced funding for the trial.[14]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[15]
Parliamentary Joint Committee on
Human Rights
The Committee stated that it had no comment on the Bill.[16]
Key issues
and provisions
The Bill’s Explanatory Memorandum states:
The pilot will involve screening parenting matters for family
safety risks at the point of filing, triaging matters according to the level of
identified risk, providing additional assistance to at-risk parties, and
operating a specialist list in the Federal Circuit Court of Australia to
resolve cases assessed as at high-risk of family violence.[17]
These processes will be undertaken by what is described in
item 1 of the Bill as a family safety risk screening person.
That term is defined in proposed section 10R of the Act as including an
officer or staff member of the federal family law courts (either the Family
Court or Federal Circuit Court); a family counsellor; a contractor engaged by
the Courts; or an officer, employee or subcontractor of such a contractor.
A family safety risk screening person will perform their
duties by undertaking a family safety risk screening process (proposed
section 10T) and by obtaining family safety risk screening
information (proposed section 10S).
The family safety risk screening process is intended to
identify:
- persons
who are at risk of being subjected to family violence
- children
at risk of abuse, violence or neglect and/or
- any
other safety risks
for the purpose of prioritising and managing cases.[18]
The current proposed amendments to the Bill do not mandate
how a family safety risk screening process must be carried out, other than to
say that the process must involve the use of a risk screening tool,[19]
as determined by the Chief Executive by notifiable instrument.[20]
They rather focus on the protection of information and staff immunity. The family
safety risk screening process may also involve a risk assessment carried out by
a family counsellor.[21]
Provisions about information
The Bill provides for the protection of family
safety risk screening information, which will include any information
obtained, in whatever form, by a family safety risk screening person
undertaking the screening process, including whether a person (a party to the
court proceedings) has been part of that process.[22]
This information also includes reports, recommendations and similar generated in
the process.[23]
Family safety risk screening information is generally
confidential. It can only be disclosed by a family safety risk screening person
in situations that are authorised in the Bill.[24]
Authorised situations for disclosure are:
- where
the risk screening person reasonably believes that disclosure is necessary to
comply with Australian law—in this case they must disclose the
information[25]
- to
another risk screening person in the course of that person’s risk
screening duties[26]
- to
a party to the process, where the original information was provided by (or came
from information provided by) that party and relates to that party[27]
- where
consent to the disclosure is given by a party of 18 years or over and the
information relates to and was provided by that party, or came from information
provided by that party; consent to disclosure can be given for similar
information relating to a person under 18 by a court [28]
- where
the risk screening person reasonably believes that disclosure is necessary to:
- protect
a child from harm
- avert
a serious and imminent threat to the life, health or property of a person
- report
the commission, or likely commission, of an offence of violence to a person or
damage to property or
- assist
a lawyer representing a child’s interests under section 68L of the Act[29]
or
- for
research purposes.[30]
Generally, family safety risk screening information can
only be used for its intended purpose and is not admissible in any court, or in
other proceedings before a person authorised to hear evidence.[31]
The fact that information is authorised to be disclosed by proposed section
10U does not of itself make that information admissible in proceedings.[32]
Information provided to a professional (such as a medical practitioner) by
reference from a family safety risk screening person is similarly inadmissible.[33]
The family safety risk screening person making a reference to a professional
must advise the professional of this.[34]
The single exception to this is where the information
indicates that a child under 18 has been abused or is at risk of abuse and
where evidence from other sources would not be sufficient to demonstrate this.[35]
Protection for workers
Proposed section 10W of the Act specifies that a
family safety risk screening person, as defined in proposed section 10R,
has the same protection and immunity in performing their duties as a Family
Court Judge. This basically means that a family safety risk screening person, assuming
that they are performing their duties in good faith, will have complete
protection from civil suit.[36]
Timing of provisions
Item 3 of the Bill states that the proposed
provisions, in regard to disclosure and admissibility, will apply to relevant
information gained or generated before the provisions take effect, as well as
information obtained after the provisions take effect. However the protection
and immunity for family risk screening persons only applies on or after the
commencement of the proposed provisions.
Permanent amendments to the Act
While the Explanatory Memorandum states that these
provisions are to be introduced into the Act to support the implementation of a
pilot program,[37]
the proposed provisions are not sunsetted—which is to say, they are not
time limited and will remain in the Act. This means that any future family safety
risk screening trial, or the adoption of this process as normal practice, will
probably not require any further legislative amendment.
[1]. See:
Parliament of Australia, ‘Federal
Circuit and Family Court of Australia Bill 2019 homepage’, Australian
Parliament website. The Bill was before the House of Representatives at the
time of writing.
[2]. Clause
2 of Bill (Item 3 in Table).
[3]. M
Neilsen, Family
Law Legislation Amendment (Family Violence and Other Measures) Bill 2011,
Bills digest, 126, 2010–11, Parliamentary Library, Canberra, 25 May 2011,
p. 7.
[4]. Family
Law Council, Families
with complex needs and the intersection of the family law and child protection
systems: final report, Attorney-General’s Department, [Canberra],
June 2016, p. 121.
[5]. Ibid.
The relevant recommendation is recommendation 2 at p. 123.
[6]. House
of Representatives Standing Committee on Social Policy and Legal Affairs, A better family
law system to support and protect those affected by family violence, House
of Representatives, Canberra, December 2017, p. xxix, paragraph 4.240.
[7]. Family
Court of Australia (FCA), Annual
report 2018–2019, FCA, Canberra, 2019, p. 7.
[8]. J
Frydenberg (Treasurer) and M Cormann (Minister for Finance), Mid-year
economic and fiscal outlook 2019–20, p. 199.
[9]. J
Duniam, ‘Second
reading speech: Family Law Amendment (Risk Screening Protections) Bill 2020’,
Senate, Debates, 26 August 2020, p. 4134.
[10]. Ibid.
[11]. Explanatory
Memorandum, Family Law Amendment (Risk Screening Protections) Bill 2020, p.
3.
[12]. Senate
Standing Committee for the Selection of Bills, Report,
8, 2020, The Senate, Canberra, 3 September 2020, [p. 4].
[13]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 11, 2020, 2 September 2020, p. 16.
[14]. Explanatory
Memorandum, op. cit., p. 3.
[15]. The
Statement of Compatibility with Human Rights can be found at pages 4 to 10
inclusive of the Explanatory
Memorandum to the Bill.
[16]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 11, 2020, 24 September 2020, p. 81.
[17]. Explanatory
Memorandum, op. cit., p. 2.
[18]. Proposed
subsection 10T(1).
[19]. Proposed
subsection 10T(2).
[20]. Proposed
subsection 10T(3).
[21]. Proposed
subsection 10T(4).
[22]. Proposed
subsection 10S(1).
[23]. Proposed
subsection 10S(2).
[24]. Proposed
subsection 10U(1).
[25]. Proposed
subsection 10U(2).
[26]. Proposed
subsection 10U(5).
[27]. Proposed
subsection 10U(3).
[28]. Proposed
subsection 10U(4).
[29]. Proposed
subsection 10U(6). Section 68L of the Act applies where a court orders that
a child’s best interests require representation by an independent lawyer.
[30]. Proposed
subsection 10U(7). Information disclosed for this purpose must not be personal
information within the meaning of section 6 of the Privacy Act 1988—that
is, information or an opinion about an identified or reasonably identifiable
individual.
[31]. Proposed
subsection 10V(1).
[32]. Proposed
subsection 10U(8).
[33]. Proposed
subsection 10V(3).
[34]. Proposed
subsection 10V(5).
[35]. Proposed
subsections 10V(2) and 10V(4).
[36]. P
Nygh and P Butt, eds, Butterworths concise Australian legal dictionary, Butterworths,
Sydney, 1997, p. 224.
[37]. Explanatory
Memorandum, op. cit., p. 2.
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