Chapter 2Key Issues
2.1Submitters supported the key objective of the Family Law Amendment (Information Sharing) Bill 2023 (the Information Sharing Bill), agreeing that information sharing between the federal family law and state and territory family violence and child protection systems would enhance the safety of children and parties to proceedings in the family law courts.
2.2The National Children’s Commissioner, for example, submitted:
By enhancing information sharing across the family law and child protection systems, as proposed in this Bill, it is hoped that the family law courts will be better placed to consider comprehensively and holistically what is in the child’s best interests [as required under section 60CA of the Family Law Act 1975 (the Family Law Act)], based on information relating to a child’s individual needs and circumstances.
2.3Similarly, the Council of Single Mothers and their Children and Single Mother Families Australia submitted:
We are generally supportive of this legislation on the basis that a fundamental principle in enhancing information sharing is to ensure safety is granted primacy in all deliberations and outcomes… [L]ack of shared information between State and Territory courts and agencies dealing with family violence and all matters relating to the safety of both children and their primary carer and extended family, has been an impediment to both good court processes and workable, fair parenting orders.
2.4Relationships Australia stated that the Information Sharing Bill is of vital concern to its clients, a large proportion of whom are affected by domestic and family violence (DFV), and the risk factors that commonly accompany DFV:
...we welcome the Information Sharing Bill, which will mitigate systems fragmentation and enhance the capacity of the Federal Circuit and Family Court of Australia to make safety-informed, timely decisions based on current and comprehensive information.
2.5While supportive of the Information Sharing Bill’s key objective, submitters expressed concerns about some elements of the proposed information sharing framework. The following matters are discussed briefly in this chapter:
information sharing orders, particularly ‘information sharing agencies’ and the potential for delay in information sharing;
the strength of protections for the sharing of sensitive information;
the adequacy of the proposed operational review; and
enhancing the rights of children and young people.
Information sharing orders
2.6Within the family law system, information is currently shared through party‑initiated subpoena processes and court orders made under section 69ZW of the Family Law Act. This provisionrelates to notifications to and subsequent investigations by an agency of suspected abuse or family violence affecting a child.
2.7The Explanatory Memorandum (EM) to the Information Sharing Bill described section 69ZW as ‘limited in scope’, indicating that it is out-of-date, ineffective and increasing reliance upon other information sharing processes:
As the understanding of the prevalence and impacts of family violence, child abuse and neglect has grown, this limited scope has proven insufficient in providing access to all relevant information to inform decision-making. This has increasingly led to a reliance on inconsistent State and Territory information sharing practices, and party-initiated subpoena processes, which can be expensive, complex, lengthy and resource-intensive for the courts, agencies, and parties, particularly where self-represented.
2.8Item 8 of the Information Sharing Bill would repeal section 69ZW, which would then be replaced by sections 67ZBD and 67ZBE in the proposed subdivision referred to above. These provisions would empower the family law courts to make two types of orders to seek and obtain information held by an ‘information sharing agency’ (see ‘Information Sharing Agency’ below), as well as the production of documents or information held by those agencies, in ‘child‑related proceedings’.
2.9Proposed subsection 67ZBD(1) would require an ‘information sharing agency’ to:
(a) inform the court whether the agency has in its possession or control any documents or information relating to a matter mentioned in subsection (2); and
(b) if it has—give the court particulars of the documents or information[.]
2.10Proposed subsection 67ZBE(1) would require an ‘information sharing agency’:
to produce to the court any documents, and give the court any information inthe agency’s possession or control relating to a matter mentioned in subsection (2).
2.11The Law Council of Australia (the Law Council) broadly supported the proposed information sharing framework, as an alternative to the existing information sharing processes. It agreed that the current subpoena processes are procedurally complex and time-consuming, as well as an impost on court resources. In addition:
…court orders, such as those contemplated by the Bill, offer certain advantages compared to the current process of party-initiated subpoenas. For instance, they are more capable of addressing privacy-related concerns and associated risks, so long as they are of appropriate breadth. Relatedly, they allow for judicial oversight of the availability and extent of orders requiring the production of particulars, documents or information, which could be particularly appropriate in the family law context.
2.12The Family Law Council also supported the proposed information orders:
Given the significant number of cases in which information is requested in child related family law proceedings, the Council recognises the need to achieve a balance between the court being provided with information as quickly as possible [proposed section 67ZBD], and ensuring the information being provided is as detailed as possible [proposed section 67ZBE].
2.13The Law Council—which particularly supported proposed section 67ZBD on the basis that the production of particulars may enable more expeditious decision-making—pointed out, however, that there are concerns within the legal profession about delays in obtaining material from agencies under existing section 69ZW:
In some instances, receipt of section 69ZW documents has taken between four and six months to be provided. The Bill does not appear to enable the court to set timeframes for compliance with an order under new sections 67ZBD or 67ZBE. This shortcoming will impede the effectiveness of the proposed information sharing regime, given it is predicated on the timely sharing of information for the family law courts to identify and respond to risk.
2.14Accordingly, the Law Council suggested that the Information Sharing Bill should be amended to include a power for the court to set timeframes for compliance with an information sharing order.
2.15With respect to the family law courts’ ability to access detailed information, theFamily Law Council submitted that it is appropriate for the court to be able to request more information from ‘information sharing agencies’:
…the Council agrees that it is appropriate for the court, at any stage, to have the power to issue a request for more detailed information pursuant to proposed s67ZBE with a consequent obligation on the agency to advise the requesting court if any information has been withheld, and the basis upon which that has occurred. The court and the agency will then be in a position to engage in a dialogue, assisted by co-located officers, to determine if the information is critical and what safeguards can be put in place to address the agency’s concerns.
2.16Both the Family Law Council and National Legal Aid commented on the effective implementation of the proposals contained in the Information Sharing Bill. National Legal Aid submitted that there will be a need for protocols and training, while the Family Law Council advocated for the continuation of the co-location pilot that has operated in 22 registries of the family law courts since 2009.
Matters covered by information sharing orders
2.17Proposed sections 67ZBD and 67ZBE of the Family Law Act would relate only to specific matters, including:
abuse, neglect or family violence to which a child to whom the proceedings relate has been subjected or exposed, or to which the court suspects the child has been subjected or exposed;
any risk or potential risk of a child to whom proceedings relate being subjected or exposed to abuse, neglect or family violence; and
any risk, or potential risk, that a party to proceedings may be subjected to, or engaging in, family violence to the extent any such family violence may affect a child to whom proceedings relate.
2.18The Law Council referred specifically to proposed paragraphs 67ZBD(2)(a) and 67ZBE(2)(a), which contain the phrase ‘to which the court suspects the child has been subjected or abused’. Its submission argued that this would require the court to have made an assessment of risk, which the court is not in a position to do until after it has received information in response to an information sharing order:
The Law Council considers that it is not appropriate for a court to provide a positive indication of suspicions it purportedly holds to a third-party agency, prior to the determination of the matter.
2.19The Federal Circuit and Family Court of Australia shared this view, submitting that the proposed provision should reference ‘a suspicion of abuse generally, not a suspicion of the Court’.
2.20The Council of Single Mothers and their Children and Single Mother Families Australia supported the application of the proposed information sharing orders to future risks to a child (particularly technology-facilitated abuse and violence).
2.21Similarly, the CREATE Foundation, which represents children and young people with out-of-home care experience, supported the court having access to any relevant information relating to persons connected to the proceedings: ‘this approach better protects the interests and safety of the child’.
‘Information sharing agency’
2.22Proposed section 67ZBC of the Family Law Act would provide for the Family Law Regulations 1984 (the Regulations) to prescribe a state or territory agency, or part thereof, as an ‘information sharing agency’.
2.23According to the EM, the types of organisations to be prescribed would include those that:
a. have investigative power, or responsibility for the prevention of family violence, child abuse and neglect matters, or
b. hold information which is directly relevant to the assessment and mitigation of family violence, neglect or abuse risk for a child concerned in proceedings, or a party to proceedings.
2.24The Law Council suggested that consideration be given to broadening the scope of agencies captured by the Information Sharing Bill, to include state and territory agencies with responsibility for corrective services, to capture any gaps in criminal history. Likewise, its submission urged for application of the proposed measures to state and territory agencies with responsibility for education:
State and Territory education departments are important sources of evidence directly relevant to the assessment of risk, particularly in relation to neglect, as the repositories of school attendance records and other documentation relating to the child’s welfare.
2.25Women’s Legal Services Australia voiced its concern that the Regulations, or at least the changes to the Regulations foreshadowed by the Information Sharing Bill and EM, are ‘yet to be provided for comment’ (also see ‘Safeguards’ below).
2.26The EM acknowledged:
Though not contained within the Bill, the types of agencies, or parts of agencies, intended to be prescribed in the Regulations are those with investigative powers and responsibilities in relation to family violence and child protection, such as State and Territory police and child protection authorities, as well as those who may hold pertinent information for the assessment and management of family violence and safety risk, such as firearms authorities.
All evidence before the court
2.27Proposed section 67ZBK of the Family Law Act would prohibit a party to ‘child‑related proceedings’ from requesting the issue of a subpoena to an ‘information sharing agency’, without the court’s permission, if an order has already been made under proposed section 67ZBE.
2.28The EM explained that the prohibition is intended to reduce unnecessary duplication of information before the courts and to mitigate the burden on information sharing agencies who might receive multiple requests for the same information.
2.29National Legal Aid expressed concerns about the impact of the proposed measure: in its view, the measure might prevent all relevant information from being before the court in a timely fashion:
The need for information can be urgent and information can quickly become out of date. In relation to proposed 67ZBE there are some reservations because of any potential for the scope and/or timeframe of a particular 67ZBE Order not capturing all relevant information. Accordingly, the concern is that either [an Independent Children’s Lawyer] be able to request subpoenas without permission or that there be an established mechanism to ensure that permission is very quickly achievable.
2.30The EM indicated that the requirement to obtain the court’s permission to request the issue of a subpoena is already a practice of the family law courts, with respect to some proceedings:
This requirement is in line with existing restrictions on subpoenas in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 [theRules], which restrict the issue of subpoenas without permission from the court in certain circumstances. Current Rule 6.27 provides a number of circumstances in which parties to proceedings require permission from the court to request the issue of a subpoena, including where litigants are self‑represented, or where a party exceeds five requests for subpoenas for production for the hearing of an application for an interlocutory order.
Protections for the sharing of sensitive information
2.31In his second reading speech, the Attorney-General observed that the Information Sharing Bill recognises the ’inherently sensitive nature of family violence, child abuse and neglect information’, by providing for ‘protected material’ and additional safeguards on the sharing of all family safety information.
2.32The Family Law Council expressed its view that the ‘safeguards set out in the legislation in respect to protecting the privacy of citizens to the greatest extent reasonably possible are appropriate’. However, other submitters raised concerns about the protections in the Information Sharing Bill and in the Regulations.
2.33Women’s Legal Services Australia, for example, agreed that ‘it is vital that necessary safety measures are in place to ensure the safety of adult survivors, who are predominantly women, and children’. Its submission argued that the safety measures proposed in the Information Sharing Bill must be strengthened.
2.34By way of illustration, Women’s Legal Services Australia highlighted proposed subsections 67ZBD(6) and 67ZBE(6), which would require an ‘information sharing agency’ to consider only the redaction or withholding of certain sensitive information provided under those sections.
2.35Similarly, the Law Council noted proposed subsection 67ZBG(2), which would allow only an ‘information sharing agency’ to advise the court of any risks of disclosure.
2.36In addition to drafting language, the Information Sharing Bill would provide protections for the sharing of sensitive information through the concepts of ‘information sharing safeguards’ and ‘protected material’.
‘Information sharing safeguards’
2.37Proposed section 67ZBI of the Family Law Act would require ‘information sharing agencies’ and the court to have regard to the ‘information sharing safeguards’ to be prescribed by the Regulations. The agency‘s obligation would apply when providing particulars, documents or information; the court’s obligation would apply to the use (handling, storage and access) of the particulars, documents or information.
2.38Based on the EM’s description of the expected types of safeguards to be prescribed in the Regulations, the Law Council submitted:
…the Law Council considers these safeguards would be generally sufficient to ensure information and documents are being shared, collected, used, disclosed and stored in an appropriate manner, which is extremely important. However, the Law Council reiterates that without visibility of the Regulations as proposed, it is not possible to form an informed view as to the effectiveness of these information sharing safeguards.
2.39Women’s Legal Services Australia supported the inclusion of the ‘information sharing safeguards’ in the Regulations on the basis that this allows those protections to be updated in a timely fashion. However, as with ‘information sharing agencies’, it had concerns about the (as yet undrafted) regulations:
Given the safeguards are vital for the success of the information-sharing scheme we believe it is important to be able to review the Regulations prior to the passing of the legislation to ensure the necessary safeguards are in place.
2.40Women’s Legal Services Australia added:
…these safeguards…are not mandated, rather [the EM states that] “the Regulations may include…”… Thedetail of these Regulations is vital to ensure adequate safeguards are in place to protect the safety of women and children.
2.41Youth Law Australia concurred, submitting that the scope and safeguards in an information sharing framework are ‘not merely mechanical…[but] substantive features of such schemes’. Its submission argued that ‘there has not yet been an opportunity to comment on draft regulations’.
2.42Some submitters—National Legal Aid, Women’s Legal Services Australia and Full Stop Australia—indicated that, although the draft regulations are not available as at the time of writing, they would welcome the opportunity to be engaged in that process as soon as possible.
2.43The EM advised that the ‘information sharing safeguards’ have been subject to targeted consultation and informed by a Privacy Impact Assessment that was commissioned during the development of the National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems (the National Framework).
2.44In response to content concerns, the EM further advised that the ‘information sharing safeguards’ may include items that address a range of objectives—for example, information is only requested, ordered, and shared to the extent necessary to identify, assess, manage and respond to family violence, child abuse and neglect risk—and are intended to provide a minimum standard only, as there are additional protections for the sharing of sensitive information:
It is expected that these safeguards will complement existing practices within the courts and information sharing agencies, providing greater assurances and transparency for families and individuals about how this information is being shared and used. Including these additional safeguards within the Regulations allows greater capacity to ensure the safeguards remain up to date with current best practice. It also ensures the safeguards are not overly prescriptive, recognising differences in jurisdictional systems and practices.
‘Protected material’
2.45Proposed section 67ZBF of the Family Law Act would enable an ‘information sharing agency’ not to disclose ‘protected material’ when providing documents, information or particulars in response to an information sharing order. Proposed subsection (3) would define the term ‘protected material’, to include, for example, particulars, documents or information that is the subject of legal professional privilege (proposed paragraph (a)).
2.46The Law Council appreciated that the exclusions aim to balance the protection of sensitive and confidential information with the identification, assessment and management of risk. It identified several concerns with the proposed section—such as the discretion to claim an exclusion—and sought further clarification of the process following the agency’s decision.
2.47The Council of Single Mothers and their Children and Single Mother Families Australia supported proposed section 67ZBF, as did Full Stop Australia, which suggested that the definition of ‘protected material’ be amended to include sexual violence counselling notes:
We would ask that sexual violence counselling notes privilege be specifically mentioned in the list of “protected materials”, similar to legal professional privilege. Though the privilege is arguably covered by other parts of the definition, we see merit in its specific mention, as some agencies are still unaware of its existence. Specifically listing counselling notes in the definition of “protected materials” would made the definition clearer and help to avoid inadvertent disclosures.
2.48If an ‘information sharing agency’ chose not to disclose ‘protected material’, theagency would have to inform the court that the agency is not required to provide certain particulars, documents or information and the reason why the ‘protected material’ exclusion applies (proposed subsection 67ZBF(2) of the Family Law Act).
2.49The EM explained:
The intention of this provision is to ensure the court is aware of the existence of further material, which in the opinion of the information sharing agency is protected material. The court can then engage with the information sharing agency directly about whether this information is critical for the purposes of decision-making, and if so, what additional protections, safeguards and practices can be applied to support its safe provision to the court.
2.50As indicated above, the Law Council voiced concerns about the operation of proposed subsection 67ZBF(2), suggesting that perhaps the Information Sharing Bill should be amended to require ‘information sharing agencies’ to provide written reasons to justify the exercise of their discretion:
This should be done at the time that the agency informs the court it possesses potentially relevant protected material under subsection 67ZBF(2). Requiring an agency to provide written justification in the first instance will likely enhance the effectiveness and timeliness of the court’s subsequent engagement with that agency.
Identification of notifiers
2.51Proposed section 67ZBH of the Family Law Act would require the court to admit into evidence any particulars, documents or information provided by an ‘information sharing agency’ under proposed sections 67ZBD or 67ZBE and on which the court intends to rely. The court would be prohibited from disclosing the identity of a person who made a notification in relation to suspected child abuse or family violence, or information that could identify that person (proposed subsection (2)).
2.52The Family Law Council submitted that proposed section 67ZBH could present an issue of procedural fairness. It pointed out that the provision would ensure that parties are aware of and have an opportunity to make submissions about the admissibility and weight of information provided to the family law courts:
There is a risk, however, that where the identity of the complainant is not disclosed, a person who is the subject of adverse commentary in the documentation provided by the state agency may be denied the opportunity to test the credibility of the informant or complainant.
2.53The Family Law Council identified two specific and potential risks: first, that a complaint or report may have been made for ulterior purposes (such as to manufacture evidence); second, that a person might be motivated to make a complaint or provide a report for the purpose of coercing or controlling the litigant involved in the family law proceedings (systems abuse). The council suggested:
In those circumstances Parliament may wish to include a provision similar to s69ZT(4) of the Act which clarifies that the court will give such weight to the evidence as it thinks fit in the circumstances.
Adequacy of the proposed operational review
2.54Proposed section 67ZBL of the Family Law Act would require a review of the operation of the information sharing framework and its associated regulations no later than 12 months after the commencement of proposed Subdivision DA of Division 8 in Part VII of the Family Law Act.
2.55The EM stated that the proposed provision intends ‘to ensure the proposed amendments establish an enhanced information sharing framework that is fit‑for-purpose and meets the objectives of the National Framework’. It noted that the review report must be tabled in both Houses of the Parliament within 15 sitting days of completion, to promote transparency.
2.56Submitters—such as the National Children’s Commissioner—welcomed the review proposal, with several suggesting that the proposal be extended to allow for a further or ongoing review. Relationships Australia considered that there should be a further review ‘three years after the 12-month review’, while the Law Council proposed a further review after 24 months.
2.57Women’s Legal Services Australia, citing a lack of consultation on the Regulations, submitted:
…it is important there be an ongoing statutory review mechanism so any safety risks or other unintended consequences can be addressed in a timely manner. We recommend the second and further statutory reviews occur every 2 years.
Concerns raised by parliamentary committees
2.58As indicated in Chapter 1, the Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) and the Parliamentary Joint Committee on Human Rights (Human Rights Committee) expressed reservations about the inclusion of certain information in the Regulations.
2.59In particular, the Scrutiny of Bills Committee queried the inclusion of the ‘information sharing safeguards’ in the Regulations and the Human Rights Committee questioned whether the Information Sharing Bill might be incompatible with article 17 of the International Covenant on Civil and Political Rights (right to privacy) as ‘information sharing agencies’ and the ‘information sharing safeguards’ are to be set out in delegated legislation:
…if the measures operate in the manner set out in the explanatory memorandum, which suggests the regulations will limit the type of agencies who can share information and will set out information sharing safeguards, the limit on the right to privacy may be proportionate in practice. However, as these safeguards are not specified in the bill itself it is difficult to fully assess the compatibility of the bill with the right to privacy.
2.60Likewise, the Law Council noted that key elements of the reform are to be prescribed in the Regulations. Without access to the draft regulations in their entirety, it submitted that it is not possible to:
comprehensively assess the efficacy of Bill and the National Framework, upon implementation, more broadly;
determine precisely who the information sharing agencies will be; and
ascertain whether adequate guidance will be provided to the courts and State and Territory agencies to support the practical operation of the proposed information sharing scheme.
2.61The EM stated that the Information Sharing 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, including the right to privacy.
2.62The EM considered that the Family Law Act, the Information Sharing Bill and the Regulations would collectively provide sufficient protection:
These information sharing safeguards are intended to provide a minimum standard of safeguards for the protection of sensitive information when it is used, shared and accessed. It is expected that these safeguards will complement existing practices within the courts and information sharing agencies, providing greater assurances and transparency for families and individuals about how this information is being shared and used.
Enhancing the rights of children and young people
2.63The United Nations Convention on the Rights of the Child (the CRC) provides specifically for the rights of children and young people. The National Children’s Commissioner highlighted several of these rights, for example, the right to be safe and protected from violence, abuse, and neglect (articles 19 and 34).
2.64The National Children’s Commissioner submitted:
…the proposed measures in the Bill, including the necessary information sharing safeguards aimed to protect family sensitive information, are congruent to the obligations under the CRC.
2.65The National Children’s Commissioner and Youth Law Australia both referenced article 12 of the CRC, which provides the right for children who are capable of forming their own views to express those views freely in all matters affecting them, including the opportunity to be heard in any judicial and administrative proceedings affecting them.
2.66Youth Law Australia argued that the Information Sharing Bill would affect children and young people in family law proceedings, however, the bill does not adequately reflect their rights under article 12:
…there is an opportunity for the Bill and associated materials (regulations and guidelines) to give greater agency to children and young people who become involved in the family law system. We note that children and young people are, in the vast majority of family law cases, not parties to the proceedings and may have little say in decisions to institute proceedings, or in the conduct of proceedings.
2.67The National Children’s Commissioner agreed that ‘children are parties with a keen interest in the outcome of [family law] proceedings’. Further:
The right to participate is not only about providing a child with the opportunity to express their views, but these views must also be taken into account and given due weight according to the child’s age and maturity. Indeed, the UN Committee considers the seeking of a child’s views as an important procedural safeguard to guarantee the implementation of the child’s best interests.
Committee view
2.68The Information Sharing Bill aims to create an information sharing framework for information relating to family violence, child abuse and neglect risks in parenting proceedings before the family law courts. The committee endorses this objective, noting the unacceptably high percentage of domestic violence allegations or risks arising in matters before these courts.
2.69The committee acknowledges that the family law courts are charged with safeguarding the best interests of a child when making parenting orders, including ensuring their physical and psychological well-being. Without all available and up-to-date information, the courts may find it difficult to discharge this duty.
2.70The committee acknowledges that the Attorney-General’s Department has conducted consultations on the Information Sharing Bill. Based on the information presented, the committee accepts that, in general, the framework has been carefully considered. In this regard, the committee commends inclusion of review provisions in the bill.
2.71The committee notes, however, that multiple submitters expressed concerns with key elements of the information sharing framework being unavailable for comment and placed outside of the primary legislation. These were also concerns for the Scrutiny of Bills Committee and the Human Rights Committee.
2.72The committee understands that the inclusion of matters in Regulations allows for those matters to be updated in a timely fashion. However, when matters are integral to proposed legislation, with the capacity to substantially affect individuals, the committee expects for those regulations to be made available for scrutiny prior to implementation. At a bare minimum, the key stakeholders should be involved in the development of the regulations.
2.73Several submitters noted the short timeframe allowed for the conduct of this inquiry, which, they indicated, affected their ability to fully comment on the Information Sharing Bill. This timeframe, and the unavailable regulations, underscore the importance of the proposed 12-month review.
2.74In the committee’s view, a review of the Information Sharing Bill and its associated regulations should be conducted 12 months after enactment of the Act, to ensure that it is achieving its intended objective, but also two years thereafter, and in conjunction with a review of the operation of the Family Law Amendment Bill 2023, to ensure that these important reforms to the federal family law system are operating to ensure the safety of Australian families.
2.75The committee recommends that the Attorney-General’s Department commits to developing regulations in support of proposed Subdivision DA of Division 8 of Part VII of the Family Law Act 1975 in consultation with relevant stakeholders.
Recommendation 2
2.76The committee recommends that the Family Law Amendment (Information Sharing) Bill 2023 is amended to include a review of the operation of the Act no later than three years after its enactment and in conjunction with a review of the Family Law Amendment Bill 2023.
2.77Subject to the preceding recommendations, the committee recommends that the Senate pass the bill.
Senator Nita Green
Chair
Labor Senator for Queensland