Civil Law and Justice Legislation Amendment Bill 2017 Bills

I will touch briefly on the issues raised by Senator Bernardi, but only towards the end of my contribution on the Civil Law and Justice Legislation Amendment Bill 2017. This bill is an omnibus bill which would amend the Acts Interpretation Act 1901, the Archives Act 1983, the Bankruptcy Act 1966, the Domicile Act 1982, the Evidence Act 1995, the Family Law Act 1975, the International Arbitration Act 1973, the Legislation Act 2003, the Marriage Act 1961, and the Sex Discrimination Act 1984. As other speakers have highlighted, the bill would make minor and technical amendments to modernise, simplify and clarify the legislation and to repeal redundant provisions. The combined effect of these amendments would be to improve the efficiency and operation of the civil justice system.

We’ve had some discussion here in this chamber today about small government and the need, where possible, to reduce the amount of government legislation—particularly where it overlaps or it causes unnecessary procedures. One of the early roles of the coalition government when we came into office was actually to set up groups specifically to look at deregulation, to find ways that we could achieve cost savings not only for the public service but particularly for business and people who needed to comply with government legislation. They had great success going through and finding redundant legislation or legislation that could be improved to reduce costs. In the very first tranche of that they anticipated savings of some $700 million. I think that was the figure that was used on the basis of that reduction. So this has been part of a program that, whilst it appears somewhat dry, is actually an important program to make government smaller and leaner and to allow people in our community to get on and do what they do well.

I will step through each of the elements of this bill. The amendments to the Acts Interpretation Act 1901 and the Legislation Act 2003 would clarify the validity of ministerial actions and the operational provisions about the management of compilations prepared for the Federal Register of Legislation. Amendments to the Archives Act would provide the National Archives of Australia with an enhanced ability to manage the high volumes of applications requesting access to records and would make other, minor technical amendments. That is certainly one of the factors that we see in a number of areas of our modern life. As the digital age has come along, the expectations of people to be able to access records, whether they be in archives or elsewhere, has increased exponentially, and we need to have both a legislative basis and systems in place to enable people who are the custodians or caretakers of repositories of information, whether that be archives or other digital records, to manage high workload in that area.

The amendments to the Bankruptcy Act 1966 will clarify that the Family Court of Australia has bankruptcy jurisdiction when a trustee applies to have a financial agreement set aside under the Family Law Act. Family law is an area where, again, this government is seeking to bring about reform. Both sides of politics over the years since I started my career in politics in the other place in 2004 have sought to make family law more workable for the tens of thousands of families around Australia who have been caught up when family relationships break down. There are many areas where, in the interaction between various areas of law, particularly the conduct of courts and the conduct of people who are in the legal system, we see that the costs involved, both financial and emotional, mean that anything we can do to make that system simpler and more transparent is a good thing. I note that one of Senator Brandis’s decisions late in his term as Attorney-General was, in fact, to launch a review of the actual family law itself. It’s been some time since the foundational documents have been considered, so the government will be looking in a holistic way to see how we can make that system better.

The amendments to the Domicile Act 1982 amend the act so it applies to territories currently specified. The Evidence Act will have updated presumptions about when post articles sent by prepaid post are received, and that accords with changes with Australia Post’s delivery time.

Changes to the Family Law Act 1975 would strengthen Australia’s response to international parental child abduction, clarify the range of persons who may discharge the powers of registry managers in the Family Court of Australia and improve the consistency of the application of provisions for de facto and married couples. It would update the arrest, entry and search powers under the act and add additional safeguards to the exercise of those powers. We have seen even in recent years international examples where children have been abducted and the kinds of lengths that parents will go to, on one hand, to seek to regain access to their children, particularly to try and bring them back here to Australia, and, unfortunately, on the other hand, to make sure that the other party doesn’t get access to the children. That whole area where it intersects with international law and different legal systems is something that is complex, and any improvement is definitely welcome.

The amendments to the International Arbitration Act 1974 specify expressly the meaning of ‘competent court’ for the purpose of model law, clarify procedural requirements for the enforcement of an arbitral award, modernise provisions governing arbitrators’ powers to award costs in international commercial arbitrations, and clarify the application of confidentiality provisions to arbitration subject to the United Nations Commission on International Trade Law.

The final two areas are amendments to the Marriage Act 1961, which remove some outdated concepts and ensure consistency with the Family Law Act in relation to parental consent for the marriage of minors. Technical amendments of minor policy significance will also be made to improve the operation of the Commonwealth Marriage Celebrants Program. Some of these will obviously need to be interfaced with the changes to the celebrants categories that were passed last year.

For those who don’t recall, the Senate select committee that looked at marriage celebrants found over a year ago now—in fact we reported about this time a year ago—that people had assumed there were just civil celebrants. In actual fact there are a number of different categories of celebrants. That Senate select committee made the recommendation to create the new category of ‘religious marriage celebrants’ for those people who were the ministers of small congregationally governed churches who weren’t recognised as a denomination by the Attorney-General’s Department. A new category was created to allow those people to have the same religious freedom protections that were provided to ministers of religion, given that, in practice, those people only fell within the civil celebrant category because they weren’t recognised by the Attorney-General’s Department even though, for all intents and purposes, they were operating within the guidelines and strictures of their particular faith group. So these changes would need to be cognisant of the amendments that were made last year.

Finally, there are the amendments to the Sex Discrimination Act 1984, which Senator Bernardi referred to, which remove the ability for women to be discriminated against in connection with employment, engagement or appointment in Australian Defence Force positions involving combat duties. That’s an interesting discussion, and it is controversial. But I would note, for those who have missed this point, that around half of Australia’s population is made of men and around half is made of women, and if you limit the ability of one-half of your population to do a certain role then you potentially limit the efficacy of your force.

What we have seen during my 20-odd years in the full-time military and another three years in the active Reserve as a pilot—I was involved with the Army Aviation Corps—is that we have gone from being what was essentially called a service corps to an arms corps. I note that Senator Molan is also a badged Army pilot, so I’m very pleased to have in this chamber two of us who have worn the blue beret and the Army aviator’s badge. Senator Molan, welcome.

An arms corps has, along with armour, infantry and artillery, the sorts of roles that people traditionally associate with combat or fighting. Army Aviation Corps also became an arms corps, but we have a number of women—and that number of women has increased—who are pilots, loadmasters, engineers and other professions within the world of aviation. They have operated both in Australia and overseas on operational deployments, and the reports that I have received indicate that they, to the same or greater or lesser extent as men, have operated effectively in those roles. Whether that equates to somebody with a rifle and a bayonet, I will leave others to argue.

I come back to the basic premise, which I apply to politics and any sphere of life: if somebody is willing and capable, without lowering the standards, and able to meet the competence requirements then I don’t have a problem. But I do have a problem with quotas or programs that are specifically aimed at trying to raise one particular part of our population, if it means that the standards that have been recognised for some time as being required to do the job are lowered. In that regard, I agree with Senator Bernardi that if political correctness drives us to bring in standards that are different just to achieve a quota, that is wrong ethically and it’s wrong in terms of the management of a defence force. However, if somebody is capable, willing and able to do the task to the required standard with the same amount of training and support that any other person has, then I don’t think their gender necessarily should disqualify them.

My experience in the aviation world—after flying specifically for the Army for a number of years and still as an Army pilot—is that I went to work for the Royal Australian Air Force at the Aircraft Research and Development Unit. We had flight test engineers as well as experimental test pilots who were women. It would be fair to say that they did the job as well as any of the men. In fact, in a couple of cases, I could say they were even more diligent, because they recognised that they had some things to prove. They were competent in their role and were fantastic contributors to the unit and its outcomes. I do note also that in 2006, when I was in the north Arabian Gulf on board one of the American command ships, a legal officer, who was giving direction and guidance to the admirals who were running the war effort, was a young woman from the Royal Australian Navy. Women are going to sea with increasing regulatory in a range of roles from seamen officers to legal or medical specialists and providing services in that environment which could be considered a combat environment, and doing it very well.

I will conclude that section with the comment, again, that if they are willing to do it, if they can do it without any special conditions in terms of lowering of the standards and the same degree of support, I think that is something that we should be open to, whilst agreeing with Senator Bernardi that politically-correct-driven programs are not necessarily beneficial for the organisation.

The Legal and Constitutional Affairs Legislation Committee did consider this piece of legislation. I was a member of that committee with my colleague Senator Macdonald, who was the chair. We considered this and reported in May of 2017, and we came up with five recommendations on the basis of the inquiry and the half-a- dozen or so submissions that we had received. The first recommendation was that the bill be amended to reflect the recommendation of the Law Council in relation to proposed bankruptcy amendments. The second was that the committee recommends that the bill be amended to amend the Family Law Act of 1975 to include a defence of fleeing from family violence, to ensure that the existing and proposed offences of unlawful removal and retention of children abroad do not apply in circumstances of family violence.

Having made that recommendation, I recognise the fact that this is a very vexed issue, with claims being made around violence, some of which are substantiated. People who perpetrate that should be ashamed of their actions and the impact they have, the trauma they cause, particularly to children, if they’re involved in that situation. But we also see evidence where there are vexatious claims made in order to gain standing in legal proceedings. Senator Brandis was doing a review of family law, and this is an area where I trust that the experts from the legal community and others who have input into that review will help us find a model of legal intervention in these dreadful cases whereby we can bring justice to those who need it quickly but we can also protect those who have suffered from vexatious claims in this area of domestic violence.

The third recommendation was that the bill be amended to amend the Family Law Act of 1975 to include a defence of consent to ensure that the existing and proposed offences of unlawful removal and retention of children abroad do not imply in circumstances where written consent has not been given but where there is oral consent or another form of consent. Obviously, there was significant discussion around what kind of evidence and record is required of that.

The fourth recommendation was that the committee recommends that the bill be amended to amend the Family Law Act 1975 to limit arrest powers and use of force so that they apply only to employees of the Australian Border Force that have received appropriate training. I think that’s fairly straightforward and obvious. The fifth recommendation was that, subject to the previous recommendations, the committee recommends that the Senate pass the bill.

I commend the bill to the Senate. The intent is to simplify and to streamline, and to make processes more accessible and just for people and, as Senator Bernardi talked about, removing an obstacle in terms of the Sex Discrimination Act. Again, I welcome the fact that we remove an obstacle on the condition that somebody is willing, competent and meets the standards. If it is purely to enable a politically correct agenda, where standards are lowered just to meet a quota, then that’s an outcome I don’t support. I commend the bill to the Senate.