Chapter 2
Concluded matters
2.1
This chapter considers the responses of legislation proponents to
matters raised previously by the committee. The committee has concluded its
examination of these matters on the basis of the responses received.
2.2
Correspondence relating to these matters is included at Appendix 1.
Family Law Amendment (Financial Agreements and Other Measures) Bill 2015
Portfolio:
Attorney-General
Introduced:
Senate, 25 November 2015
Purpose
2.3
The Family Law Amendment (Financial Agreements and Other Measures) Bill
2015 (the bill) seeks to make a number of amendments to the Family Law Act
1975 (FLA). In particular, the bill seeks to limit the jurisdiction of
the Family Court to set aside financial agreements made at, or after,
separation.
2.4
Measures raising human rights concerns or issues are set out below.
Background
2.5
The committee first commented on the bill in its Thirty-third Report
of the 44th Parliament, and requested further information
from the Attorney-General as to whether the bill was compatible with the obligation
to consider the best interests of the child.[1]
Power of the Family Court to set aside financial agreements
2.6
A binding financial agreement ousts the jurisdiction of the Family Court
(the court) to make an order under the property settlement or spousal
maintenance provisions of the FLA about the financial matters to which the
agreement applies.
2.7
The FLA sets out a number of circumstances under which a court may set
aside a financial agreement between spouses. Currently, a court can make an
order setting aside a financial agreement if satisfied that a material change
in circumstances relating to the care, welfare and development of a child has
occurred and, as a result of the change, the child, or a party to the agreement
who has caring responsibility for the child, will suffer hardship.
2.8
Schedule 1 would amend the FLA so that binding financial agreements
entered into at the time of or after a relationship breakdown may be set aside
by a court only in 'circumstances that are of an exceptional nature and relate
to the care, welfare, and development of the child'.[2] The bill does not specify
what is meant by 'exceptional' circumstances. However, the effect of the change
in language from 'material change in circumstances' to 'exceptional'
circumstances serves to narrow the court's power to set aside a financial
agreement on the grounds that the child of the relationship will suffer hardship.
2.9
Financial agreements between separated parents involve considerations of
the best interests of the child and judicial decisions must consider the best
interests of a child as a primary consideration.[3]
Obligation to consider the best
interests of the child
2.10
Under the Convention on the Rights of the Child (CRC), state parties are
required to ensure that, in all actions concerning children, the best interests
of the child is a primary consideration.[4]
2.11
This principle requires active measures to protect children's rights and
promote their survival, growth and wellbeing, as well as measures to support
and assist parents and others who have day-to-day responsibility for ensuring
recognition of children's rights. It requires legislative, administrative and
judicial bodies and institutions to systematically consider how children's
rights and interests are or will be affected directly or indirectly by their
decisions and actions.
2.12
This obligation is reflected in Part VII of the FLA. Under this Part, in
deciding whether to make a particular parenting order, a court must regard the
best interests of the child as the paramount consideration.[5] However, this requirement
only applies to proceedings under Part VII. The amendments that this bill
proposes modify Part VIIIA and Part VIIIAB. Neither of these Parts includes a
reference to the best interests of the child. Therefore currently there is no
express provision for the courts to have regard to the best interests of the
child when considering whether to set aside a binding financial agreement.
Compatibility of the measure with
the obligation to consider the best interests of the child
2.13
The bill would limit to exceptional circumstances the court's discretion
to set aside a binding financial agreement entered into by the parents at the
time of or after separation. This would limit the court's ability to issue
orders relating to the financial affairs of parents that are in the best
interests of a child.
2.14
The statement of compatibility does not acknowledge that amendments to
the financial agreements regime engage the obligation to consider the best
interests of the child.
2.15
The committee therefore sought the advice of the Attorney-General as to the
legitimate objective, the rational connection, and the proportionality of the
measure in relation to the obligation to consider the best interests of the
child.
Minister's response
I thank the Committee for its considered response on the Bill
and provide the following information in reply.
The Family Law Act contains a number of statutory grounds on
which a financial agreement can be set aside. As noted by the Committee, the
Bill would amend one of these grounds to provide that the court can only set
aside an agreement where, if the court did not set aside the agreement, a child
would suffer hardship for a specified reason:
-
for agreements entered into before
separation, the test for hardship would be a 'material change in circumstances
that relate to the care, welfare and development of the child of the marriage'
(this reflects the current provision), or
-
for agreements entered into at the
time of separation or after separation, the test for determining hardship would
be 'circumstances of an "exceptional nature" that relate to the care,
welfare and development of the child of the marriage'.
These changes would not apply retrospectively.
The amendment engages article 3(1) of the Convention of the
Rights of the Child, which provides that in all actions concerning children
(including by courts) the best interests of the child shall be a primary
consideration.
The objective of the proposed amendment is to empower
families to take responsibility for their own affairs, without resorting to the
family law system, by giving them certainty that their financial agreements
will be enforceable. Allowing consenting parties to make mutually agreed
decisions about their own financial affairs enables them to avoid the financial
and emotional costs and delays of legal proceedings and reduces the impact on
the family law courts. The amendment would also improve consistency between
when a property order made by the court (including consent orders) can be set
aside on the basis of hardship, and when a post-separation financial agreement
can be set aside on the basis of hardship.
The 'exceptional circumstances' test is a reasonable and
proportionate measure for achieving this important objective for agreements
made after relationship breakdown. As noted above, the test for hardship for
agreements made pre-separation would not be amended by the Bill. This
recognises the different circumstances in which pre- and post-separation
financial agreements are made.
For agreements made prior to separation, a substantial period
of time may have lapsed and the circumstances of the couple may have changed in
ways not contemplated by the original financial agreement. For example, while a
couple may not have anticipated having children at the time an agreement was
made, they may subsequently have one or more children whose needs may not be
reflected in the agreement. The 'material change of circumstances' test is
important to ensure that appropriate arrangements are made for children in
these and similar circumstances.
For agreements made after separation, parties should be in a
position [to] consider their full financial position, including key issues such
as their earning capacity, caring obligations, and the future needs of their
children. Post-separation agreements should therefore be substantially better
placed to ensure appropriate protection for the interests of children. As
reopening parental conflict is unlikely to be in the best interests of
children, it is appropriate that agreements voluntarily entered into the
parties should be binding. However, if circumstances relating to the care,
welfare or development of the child do change substantially (for example, by a
child developing a disability requiring a high degree of care), this may
constitute an 'exceptional circumstance' and it would be open to the court to
set aside the financial agreement.
There are safeguards in place to protect the interests of
children when their parents' relationship breaks down. For a financial
agreement to be binding, each party is required to obtain independent legal
advice on the effect of the agreement on that party's rights under the Act. It
can be expected that this advice would include how the agreement may affect any
children of the relationship.
To the extent that the amendment engages article 3(1) of the
Convention on the Rights of the Child, it is a reasonable and proportionate
measure to achieve the objective of empowering parties to manage their own
financial affairs.
I trust this information is of assistance to the committee. I
note that we will amend the explanatory memorandum to the Bill to contain this
important information.[6]
Committee response
2.16
The committee thanks the Attorney-General for his expeditious response.
2.17
The committee welcomes the Attorney-General's commitment to
amending the explanatory memorandum to the bill so that it will include
information clearly stating how the bill engages the obligation to consider the
best interests of the child.
2.18
The Attorney-General explains that the objective of this bill is to
'empower families to take responsibility for their own affairs, without
resorting to the family law system'. In light of the costs and delays
associated with court proceedings and the uncertainty that may arise, the
committee accepts that this is a legitimate objective. Reducing the ability of
the court to intervene in financial agreements struck by couples at the time
of, or after, separation is clearly connected with this objective, as it would
limit the ability of individuals to access the family law system.
2.19
In terms of the proportionality of the measure, the committee notes the
distinction between agreements made pre-separation and agreements made at the
time of, or post-separation. The committee agrees that for agreements made
prior to separation a low standard should be applied, as circumstances not
contemplated by the couple or the original financial agreement may exist. The
committee notes that the bill will only raise the standard for agreements made
at the time of, or after, separation.
2.20
The committee retains some concerns regarding the shift to the higher
'exceptional circumstances' standard. A submission from the Women's Legal
Service Queensland to the Legal and Constitutional Affairs Legislation
Committee's inquiry into this bill noted that binding financial agreements are
'particularly used against culturally and linguistically diverse women, who
have limited or no English, little understanding of their legal rights, have
limited support and no understanding of the Australian legal system or laws'.[7]
In these cases, even an agreement struck at the time of or post-separation, may
not adequately protect the interests of any children of the relationship.
2.21
However, the committee notes the existence of an important safeguard
identified by the Attorney-General. The requirement that both parties obtain
independent legal advice on the effect of their rights under a binding
financial agreement will operate to ensure that particularly vulnerable women,
and any children they may have from the relationship, will be protected,
because a court will be able to determine whether any legal advice was
obtained, and whether that legal advice was 'independent'.
2.22
Further, the committee welcomes the clarification in the explanatory
memorandum to the bill that if circumstances relating to the care, welfare or
development of the child do change substantially, this may constitute an
exceptional circumstance under the amended legislation, allowing a court to set
aside a financial agreement.
2.23
Accordingly, the committee considers that the bill may be compatible
with the obligation to consider the best interests of the child and has
concluded its examination of the bill.
Telecommunications (Interception and Access) Amendment (Public Interest
Advocates and Other Matters) Regulation 2015 [F2015L01658]
Portfolio: Attorney-General
Authorising
legislation: Telecommunications (Interception and Access) Act 1979
Last day to disallow: 22 February 2015 (Senate)
Purpose
2.24
The Telecommunications (Interception and Access) Act 1979 (the
Act) prohibits the Australian Security Intelligence Organisation (ASIO) or
enforcement agencies from authorising access to telecommunications data
relating to a journalist, or their employer where the purpose is to identify a
journalist's source, unless a warrant has been obtained (a journalist
information warrant).[8]
2.25
The Act requires that when considering an application for a journalist
information warrant, the minister (in the case of ASIO) or the issuing
authority (in the case of enforcement agencies) is satisfied that the public
interest in issuing the warrant outweighs the public interest in protecting the
confidentiality of the identity of the source. The Act provides that in making
that assessment, the minister or issuing authority is to have regard to any
submissions made by a 'Public Interest Advocate' (PIA).[9]
2.26
The Telecommunications (Interception and Access) Amendment (Public
Interest Advocate and Other Matters) Regulation 2015 (the regulation)
prescribes the process requirements for applying for a
journalist information warrant and matters relating to the performance of the
role of a PIA, including:
-
providing that only the most senior members of the legal
profession may be appointed as PIAs and prescribing levels of security
clearance for certain PIAs;
-
requiring that agencies provide a PIA with a copy of a proposed
request or application for a journalist information warrant or notify a PIA
prior to making an oral application; and
-
enabling PIAs to receive further information (or a summary of
further information) provided to the minister or issuing authority by agencies
and to prepare new or updated submissions based on that information.
2.27
Measures raising human rights concerns or issues are set out below.
Background
2.28
The Act was amended by the Telecommunications (Interception and Access)
Amendment (Data Retention) Bill 2014 (the bill) to introduce the journalist
information warrant and PIA schemes. The committee commented on the bill in its
Fifteenth Report of the 44th Parliament, its Twentieth
Report of the 44th Parliament and its Thirtieth Report
of the 44th Parliament.[10]
Because the journalist information warrant and PIA schemes were introduced as
amendments to the bill they did not form part of the committee's consideration.
2.29
The committee considers that the journalist information warrant and PIA
schemes that were introduced as amendments to the bill improve the
compatibility of the bill. Requiring a warrant before journalist's metadata can
be accessed ensures that there is at least some assessment of both the law
enforcement need for the metadata and the public interest in protecting
journalists' sources before the metadata is accessed by law enforcement
agencies.
2.30
The committee first commented on the regulation in its Thirty-second
Report of the 44th Parliament, and requested further
information from the Attorney‑General as to whether the regulation was
compatible with international human rights law.[11]
Role of Public Interest Advocate in journalist information warrant process
2.31
The regulation prescribes the process for a PIA to make a submission
regarding an application for a journalist information warrant. However, the
regulation does not make provision for the PIA to access or speak with the
journalist or other person affected by an application for a journalist
information warrant, nor does it guarantee that any submission or input from
the PIA regarding such an application would, in fact, be considered prior to
the issuance of a warrant. The regulation also provides the minister with a
discretion to provide the PIA with only a summary of any further information
provided to the minister or issuing authority relating to proposed journalist
information warrant requests or applications.
2.32
The committee considered in its previous report that the regulation,
while seeking to better promote the protection of privacy and the right to
freedom of expression by prescribing a warrant process for accessing journalists'
metadata, also engages and may limit multiple rights.
Multiple rights
2.33
Accessing telecommunications data relating to a journalist, or their
employer, where the purpose is to identify a journalist's source, together with
the journalist information warrant and PIA scheme, engages and may limit
multiple rights, including:
-
right to an effective remedy;[12]
-
right to a fair hearing;[13]
-
right to privacy;[14]
and
-
right to freedom of expression.[15]
Compatibility of the measures with multiple rights
2.34
The statement of compatibility states that the regulation engages and
promotes the rights to freedom of expression and privacy. However, it provides
no assessment of any limitation on those rights or of the compatibility of the
measures with the rights to an effective remedy or a fair hearing.
2.35
The committee considered that the journalist information warrant and PIA
schemes seek to better promote the protection of privacy and the right to
freedom of expression by prescribing a warrant process for accessing journalists'
information, but that the regulation may lack sufficient safeguards to
appropriately protect these rights, as well as the right to an effective remedy
and a fair hearing. In particular:
-
the regulation does not enable the PIA to seek instructions from
any person affected by the journalist information warrant;
-
the regulation grants the minister discretion to provide the PIA
with only a summary of further information provided to the minister or issuing
authority relating to proposed journalist information warrant requests or
applications, despite the intention of the regulation being to ensure PIAs are
able to advocate in the public interest; and
-
the regulation provides no procedural guarantees to ensure the
PIA is able to make a submission on an application for a journalist information
warrant prior to the issuance of a warrant.
2.36
The committee noted that the statement of compatibility refers to a
range of procedural safeguards that apply to the journalist information warrant
regime. In light of the features identified above, it is unclear whether the
measures facilitate the independent scrutiny of applications for journalist
information warrants or ensure that PIAs are able to advocate in the public
interest.
2.37
The committee therefore sought the advice of the Attorney-General as to
whether the limitations on the rights listed above at [2.33] are proportionate
to the stated objective, in particular, whether the limitations listed at [2.35]
are reasonable and proportionate.
Minister's response
By virtue of the Telecommunications (Interception and
Access) Amendment (Data Retention) Act 2015, both ASIO and enforcement
agencies must obtain a journalist information warrant prior to authorising the
disclosure of telecommunications data relating to a journalist or their
employer, where a purpose of the disclosure would be to identify a source. The
Regulations further support the independent oversight of the journalist
information warrant regime by prescribing important procedural safeguards and
detailing matters relating to the performance of the role of Public Interest Advocate.
The Government considers that taken together the Act and the
Regulations appropriately protect human rights, including the right to
effective remedy, fair hearing, privacy and freedom of expression, while
addressing the need for access to data to assist in serious criminal and
national security investigations. The Government considers that the limitations
on human rights in the Regulations are reasonable, necessary and proportionate.
Detailed responses to the Committee's specific queries are set out, below.
Notification to journalist of a proposed request or
application
The Government believes that it is reasonable and
proportionate to exclude an affected journalist from providing instructions to
a Public Interest Advocate on the substance of an application. Applications for
warrants authorising the use of covert investigative powers are ordinarily
conducted on an ex parte basis. This reflects the public interest in
avoiding the kinds of harm that may arise if a party is given advance knowledge
of the application and in turn, the existence of an investigation. Such
knowledge may, for example, enable and motivate a party or a related‑party
to flee a jurisdiction, dispose of physical evidence, or alter or cease certain
activities, so as to frustrate the investigation.
It is well-established that ex parte hearings depart
from the adversarial model of justice. However, it is equally well-established
that this departure is offset by the fact that ex parte hearings
generally, and warrant applications in particular, are interim proceedings
dealing with preliminary matters in the course of an investigation. Should an
investigation proceed to a prosecution, with potentially greater rights
impacts, parties will typically have the ability to contest evidence sought to
be admitted by the prosecution, including the basis upon which the evidence was
obtained.
The Act and Regulations nevertheless significantly bolster
privacy safeguards by ensuring that issuing authorities are required to weigh
the public interest in protecting the confidentiality of the identity of the
journalist's source, having regard to: the extent to which the privacy of any
person would be likely to be interfered with; whether attempts have been made
to obtain the information by other means; the gravity of the matter; and
submissions by a Public Interest Advocate. Warrant applications do not
determine facts, and any evidence obtained pursuant to a warrant and given in
evidence in open court, can be challenged during any subsequent proceedings.
The Act also includes robust oversight arrangements. Central
to the oversight regime are the Commonwealth Ombudsman and the Inspector‑General
of Intelligence and Security. The Ombudsman has the power to inspect the
records of enforcement agencies to ensure compliance with the Act. The Act
includes extensive record-keeping obligations for agencies that will underpin
Ombudsman inspections. The Inspector-General likewise has continued oversight
of access to data by ASIO. Collectively, the Ombudsman and the
Inspector-General of Security assure the public that journalists' information
is being accessed lawfully, and in doing so enhance the transparency and public
accountability of the journalist information warrant regime.
Summary of further information
The Regulations require the Minister or issuing authority to
have regard to specified matters when deciding whether to require an agency to
give the further information to the Public Interest Advocate, or a summary of
that information (being further information that was originally given to the
Minister or issuing authority orally). As outlined at paragraph 91 of the
Explanatory Statement, this discretion applies only in where an applicant has
given further information to the Minister or issuing authority orally,
and where it may therefore be impractical for the applicant to ensure that the
Advocate is provided that information verbatim.
Submissions by an Advocate
The Public Interest Advocate scheme forms an additional safeguard
in connection with applications for Journalist Information Warrants. The scheme
supplements the requirement that applications be considered and determined by
an independent issuing authority, and be oversighted by the independent
Commonwealth Ombudsman or Inspector-General of Intelligence and Security, as
well as by the Parliamentary Joint Committee on Intelligence and Security. In
combination, these safeguards go beyond the safeguards identified in other
jurisdictions as being necessary to protect rights in connection with the use
of covert investigative powers, including in relation to journalists.[16]
I have considered very carefully concerns about warrants
being issued absent a submission by a Public Interest Advocate. However, I am
advised that it would be beyond the scope of the regulation-making powers in
the Act to prevent warrants being made in the absence of a submission from a
Public Interest Advocate. The legislation provides a discretion to the issuing
authority as to whether to issue journalist information warrants. It is
well-established that the Minister may not make delegated legislation that is
contrary to the primary statute.
However, the Regulations include an additional requirement
that in circumstances where an Advocate indicates that he or she is unable to
consider an application or request, the agency is required to give a copy to
another Advocate. In effect, this requires an agency to continue to approach
Advocates until it finds one who is available. The Regulations also put beyond
doubt that the Minister or issuing authority may consider an Advocate's
submission, or updated submission, even if provided outside the seven-day
period for lodgement. Further, the Minister or issuing authority has the
discretion to refuse an application without submission from an Advocate.[17]
Committee response
2.38
The committee thanks the Attorney-General for his response.
2.39
The committee acknowledges that the regulations introduce additional
safeguards relating to the issuing of journalist information warrants under the
Act and welcomes the commitment of the Attorney-General to fulfilling
Australia's obligations under international human rights law.
2.40
The committee accepts that the PIA scheme forms an important safeguard
in connection with applications for a journalist information warrant. However,
the committee retains some concerns with the arrangement.
Notification to journalist of a
proposed request or application
2.41
The Attorney-General notes that it is appropriate that a PIA is unable
to seek instructions from any person affected by the journalist information
warrant because applications for a warrant are interim proceedings, ordinarily
conducted on an ex parte basis. This is correct. However, it is unclear
how a PIA will be able to effectively represent the interests of a person
subject to the warrant in these circumstances, or provide information that will
relevantly weigh on the issuing authority's determination as to whether to
grant a warrant.
2.42
The Attorney-General justifies this measure by noting that a party who
is given advance knowledge of the application may flee a jurisdiction, dispose
of physical evidence, or alter or cease certain activities, so as to frustrate
the investigation. These are legitimate concerns. However, the regulation
includes a blanket prohibition on the PIA contacting any person affected
by the journalist information warrant. Accordingly, there is no ability for the
court to weigh up the risks and determine whether, in the circumstances of the
particular warrant, it is necessary and appropriate for the PIA not to have
contact with any person affected in order to protect national security and
community safety. Indeed, even were a court to consider it was necessary or
desirable for the PIA to seek instructions in any regard from an affected
person, the court is unable to order or allow that to occur.
Summary of further information
2.43
The regulation grants the minister discretion to provide the PIA with
only a summary of further information provided to the minister or issuing
authority relating to proposed journalist information warrant requests or
applications, despite the intention of the regulation being to ensure PIAs are
able to advocate in the public interest. The Attorney-General explains that the
explanatory statement provides that this discretion applies only where an
application has given such further information orally, and it is thus
impractical to ensure that the PIA is provided with that information verbatim.
2.44
The committee thanks the Attorney-General for his explanation.
Nevertheless, the committee considers that this intention could be ensured by
an amendment to the regulation providing as such, rather than leaving it to the
explanatory statement.
Submissions by an advocate
2.45
In its original consideration of the regulation, the committee noted its
concerns at the absence of procedural guarantees that ensure a PIA is able to
make a submission on an application for a journalist information warrant prior
to the issuance of a warrant.
2.46
The minister notes that it is beyond the scope of the regulation-making
power in the Act to prevent warrants being made in the absence of a submission
from a PIA, because the legislation provides discretion to the issuing
authority as to whether to issue a journalist information warrant. While the
committee agrees that a minister may not make delegated legislation that is
contrary to the primary statute, the committee considers that this additional safeguard
could be incorporated in an appropriately amended primary statute. No
explanation is provided as to why the minister does not consider this
appropriate.
2.47
In these circumstances, the additional safeguards identified by the
minister, such as: requiring an agency to continue to approach PIAs until
finding one available; requiring the minister or issuing authority to consider
a PIA submission when provided outside the seven-day period for lodgement; and
providing the minister or issuing authority with a discretion to refuse an
application without a submission from a PIA, do not address the committee's
concern, which is that a minister or issuing authority may still issue a
journalist information warrant without any submission from a PIA, thereby
limiting the right to a fair hearing and an effective remedy, and,
consequentially, the right to privacy and freedom of expression.
2.48
The committee's assessment of the Telecommunications (Interception
and Access) Amendment (Public Interest Advocates and Other Matters)
Regulation 2015, prescribing the process requirements for applying for a
journalist information warrant and matters relating to the performance of the
role of a Public Interest Advocate against articles 2, 14, 17 and 19 of the
International Covenant on Civil and Political Rights (right to an effective
remedy, right to a fair hearing, right to privacy, and right to freedom of
expression) is that the measures, while introducing additional safeguards to
the Telecommunications (Interception and Access) Act 1979, may, taken
together with the primary legislation, remain incompatible with Australia's
obligations under international human rights law.
The Hon Philip Ruddock MP
Chair
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