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FEDERAL JUSTICE SYSTEM AMENDMENT (EFFICIENCY MEASURES) BILL (NO. 1) 2008







                                    2008





               THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA





                          HOUSE OF REPRESENTATIVES







  FEDERAL JUSTICE SYSTEM AMENDMENT (EFFICIENCY MEASURES) BILL (NO. 1) 2008






                           EXPLANATORY MEMORANDUM









              (Circulated by authority of the Attorney-General,
                    the Honourable Robert McClelland, MP)
  FEDERAL JUSTICE SYSTEM AMENDMENT (EFFICIENCY MEASURES) BILL (NO. 1) 2008


OUTLINE

This Bill amends various Acts in order to improve the efficient conduct of
business in the federal courts and clarifies and expands the jurisdiction
of the Federal Court of Australia under the International Arbitration Act
1974.  It also responds to the decision of the Full Court of the Family
Court of Australia in Black v Black [2008] FamCAFC 7, where the Court
applied a strict compliance test in relation to certain technical
requirements for binding financial agreements made under the Family Law Act
1975.

Schedule 1 to the Bill amends the Federal Court of Australia Act 1976 to
allow the Federal Court to refer a proceeding, or one or more questions
arising in a proceeding, to a referee for report.  This will be useful in
many cases, including where technical expertise is required and it is
neither cost effective nor an appropriate use of a judge's time to gain the
necessary in-depth expertise in a particular science or trade, or where
detailed examination of accounts or other financial records is necessary to
assess damages.  Giving the Court the power to refer a matter out to a
referee will provide the Court with greater flexibility, ensure efficient
use of judicial resources and assist in the timely and efficient resolution
of disputes for litigants.

To aid the Federal Court in efficient case management, Schedule 1 also
amends the Federal Court of Australia Act 1976 to allow a single Federal
Court judge to make an interlocutory order in the original or appellate
jurisdiction of the Court in a matter otherwise required to be heard and
determined by a Full Court.  This will allow the Court to more efficiently
manage cases and avoid unnecessary delay for litigants.

Schedule 2 to the Bill amends the International Arbitration Act 1974 to
give the Federal Court concurrent jurisdiction with State and Territory
Supreme Courts for matters arising under Parts III and IV of the Act (which
adopt the UNCITRAL Model Law on International Commercial Arbitration 1985
and implement the Convention on the Settlement of Investment Disputes
Between States and Nationals of other States 1965).  The amendments also
clarify the Federal Court's existing jurisdiction for matters arising under
Part II of the Act (giving effect to the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards 1958).  These amendments will assist
in ensuring that the Federal Court is well equipped to operate as a
regional hub for commercial litigation.

Schedule 3 to the Bill amends the Federal Court of Australia Act 1976,
Family Law Act 1975, Native Title Act 1993 and Administrative Appeals
Tribunal Act 1975 to remove the current restrictions on Chief Justices and
Presidents acquiring an interest in land for the purposes of the
Lands Acquisition Act 1989.  The restrictions, which were introduced at a
time when purchasing and building arrangements for federal courts and
tribunals were the responsibility of the then Department of the Arts and
Administrative Services, are no longer necessary and cause practical
impediments to the efficient operation of the courts and tribunals.  The
Federal Magistrates Court which was established in 1999 is not subject to
such a restriction.  The Chief Justices and Presidents will still be
required to seek the Attorney-General's approval in order to enter into a
contract of an amount exceeding the prescribed amount, which is currently
$1 million.

Schedule 4 to the Bill amends the Public Order (Protection of Persons and
Property) Act 1971 to allow an authorised, non-judicial officer of the
Federal Court to make an order specifying that certain premises are 'court
premises' for the purposes of the Act.  The purpose is to ensure that the
areas in which authorised officers are able to exercise powers under the
Act in the interests of security-such as the power to remove a person from
court premises-are readily identifiable to authorised officers and the
public.  This will be particularly useful when the Court is sitting 'on
country' to hear native title matters.  The Bill requires the authorised
court official to give notice of a court premises order.

Schedule 5 to the Bill amends binding financial agreement and termination
agreement provisions of the Family Law Act 1975 to relax certain technical
requirements that must be strictly satisfied for financial agreements and
termination agreements to be binding.  These amendments will respond to the
concerns about the binding financial agreement provisions of the Act that
have arisen following the decision of the Full Family Court in Black v
Black.  The Family Law Council has confirmed that amendments are required
to restore confidence in the binding nature of these agreements.

FINANCIAL IMPACT STATEMENT

The proposed Bill will not have any significant financial impact.
NOTES ON CLAUSES

Clause 1: Short title

    1. Clause 1 is a formal provision specifying the short title of the
       Bill.

Clause 2: Commencement

    2. Clause 2 provides for the commencement of the Act.


    3. Subclause 2(1) provides that each provision of the Act specified in
       column 1 of the table commences, or is taken to have commenced, in
       accordance with column 2 of the table.  


    4. Items 1 and 2 of the table provide that clauses 1 to 3 of the Bill
       and Schedules 1, 2, 3 and 4 to the Bill will commence on the day on
       which this Act receives the Royal Assent.


    5. Item 3 of the table provides that item 1 of Schedule 5 to the Bill
       will commence on the later of the start of the day that this Act
       receives the Royal Assent and immediately after the commencement of
       item 1 of Schedule 1 to the Family Law Amendment (De Facto Financial
       Matters and Other Measures) Act 2008.


    6. Item 4 of the table provide that items 2 to 8 of Schedule 5 to the
       Bill will commence on the day after this Act receives the Royal
       Assent.


    7. Item 5 of the table provides that Part 2 of Schedule 5 to the Bill
       will commence on the later of the start of the day that this Act
       receives the Royal Assent and immediately after the commencement of
       item 1 of Schedule 1 to the Family Law Amendment (De Facto Financial
       Matters and Other Measures) Act 2008.


    8. The note at the end of the table explains that the table relates
       only to the provisions of the Act as originally passed by both
       Houses of the Parliament and assented to.  The table will not be
       expanded to deal with provisions inserted in the Act after assent.


    9. Subclause 2(2) provides that column 3 of the table contains
       additional information that is not part of the Act.  It also
       clarifies that information in column 3 may be added or edited in any
       published version of the Act.

Clause 3: Schedule(s)

   10. Clause 3 is a formal provision to ensure that the Schedules to the
       Bill have effect as specified in the Schedules.


SCHEDULE 1 - Federal Court powers






      Federal Court of Australia Act 1976


Item 1: Section 4

   11. This item inserts a definition of 'referee' for the purposes of new
       section 54A inserted by item 6 below.  New section 54A provides that
       the Court may refer a proceeding, or one or more questions arising
       in a proceeding, to a referee for inquiry and report in accordance
       with the Rules of Court.  This definition is intended to be broad.


Item 2: After paragraph 20(5)(a)

   12. This item inserts new paragraph 20(5)(aa) into subsection 20(5) of
       the Act to allow a single Judge to make an interlocutory order in a
       matter coming before the Court as mentioned in subsection 20(2).


   13. The general rule found in subsection 20(1) of the Act is that the
       original jurisdiction of the Court is to be exercised by a single
       Judge.  Subsection 20(2) provides an exception to this general rule.
        It provides that where a matter coming before the Court is from a
       tribunal or authority (other than a court) constituted by a Judge of
       the Court or of another court created by the Parliament, or by
       members who include a Judge of the Court or of another court created
       by the Parliament, the jurisdiction of the Court is to be exercised
       by a Full Court.  Subsections 20(3) and (5) qualify this requirement
       by allowing certain powers to be exercised by a single Judge in
       relation to such matters (eg joining and removing parties, giving
       summary judgment, giving directions about the conduct of the
       matter).


   14. The amendment to subsection 20(5) is consistent with the existing
       qualifications in subsections 20(3) and (5) and will allow a single
       Judge to make interlocutory orders in relation to such matters.


   15. This will reduce the potential for undue delay and facilitate the
       efficient conduct of proceedings by ensuring a Full Court is not
       required to be convened unnecessarily.


Item 3: Paragraph 20(5)(da)

   16. This item is consequential upon item 2.  It amends existing
       paragraph 20(5)(da) of the Act to allow a single Judge or Full Court
       to vary or set aside an interlocutory order made under new paragraph
       20(5)(aa) inserted by item 2 above.  This is consistent with the
       existing power of a single Judge or Full Court under paragraph
       20(5)(da) to vary or set aside other types of orders made under
       subsection 20(5).


Item 4: After paragraph 25(2B)(aa)

   17. This item inserts new paragraph 25(2B)(ab) into subsection 25(2B) of
       the Act to allow a single Judge to make an interlocutory order
       pending, or after, the determination of an appeal to the Court.


   18. The general rule found in subsection 25(1) of the Act is that the
       appellate jurisdiction of the Court be exercised by a Full Court.
       Subsection 25(2B) is one of the qualifications to this rule.  It
       provides that certain powers may also be exercised by a single Judge
       (eg joining or removing parties to an appeal, giving summary
       judgment, giving directions about the conduct of an appeal).


   19. The issue of whether a single Judge has the power to make an
       interlocutory order pending the determination of an appeal to the
       Full Court arose in Namu of 2002 v the Minister for Immigration &
       Multicultural Affairs [2002] FCA 999.  Specifying that a single
       Judge has the power to grant an interlocutory order in the exercise
       of the Court's appellate jurisdiction will put the matter beyond
       doubt and facilitate the efficient conduct of proceedings by
       ensuring a Full Court is not required to be convened unnecessarily.


   20. The amendment is consistent with the amendment made by item 2 above
       which gives a single Judge the power to make an interlocutory order
       in the Court's original jurisdiction in a matter otherwise required
       to be heard and determined by a Full Court.


Item 5: Paragraph 25(2B)(bc)

   21. This item is consequential upon item 4.  It amends paragraph
       25(2B)(bc) of the Act to allow a single Judge or Full Court to vary
       or set aside an interlocutory order that has been made under new
       paragraph 25(2B)(ab) inserted by item 4 above.  This is consistent
       with the existing power of a single Judge or Full Court under
       paragraph 25(2B)(bc) to vary or set aside other types of orders made
       under subsection 25(2B).


Item 6: After section 54

   22. This item inserts a new section 54A into the Act dealing with the
       referral of questions to a referee.  A definition of 'referee' for
       the purposes of this section is inserted by item 1 above.


   23. New subsection 54A(1) gives the Court power to refer matters to a
       referee in accordance with the Rules of Court.  The Court may refer
       either a whole proceeding or specific questions arising in a
       proceeding.  Item 7, below, gives the Court wide-ranging powers to
       make Rules of Court to develop flexible procedures for the Court's
       use of referees.


   24. This will be useful in many cases, including where technical
       expertise is required and it is neither cost effective nor an
       appropriate use of a judge's time to gain the necessary in-depth
       expertise in a particular science or trade, or where detailed
       examination of accounts or other financial records is necessary to
       assess damages.  It will also assist the Court in its management of
       complex native title matters.  Courts in other jurisdictions possess
       and regularly use such a power to help them determine issues before
       them.  Matters referred to a referee could be matters of fact or law
       or both.


   25. New subsection 54A(2) provides that a referral under subsection
       54A(1) may be made at any stage of the proceedings.


   26. New subsection 54A(3) describes how the Court may deal with a report
       provided to it by a referee.  The Court has the discretion to deal
       with a report as it thinks fit.  It may adopt the report in whole or
       in part, vary the report, reject the report and make such orders as
       it thinks fit in respect of any proceeding or question referred to
       the referee.  The Court retains complete discretion about how it
       deals with the report and any legal effect of the report.


   27. Item 6 also inserts new section 54B which provides that a referee
       has, in inquiring or reporting on a proceeding or question referred
       under section 54A, the same protection and immunity as a Judge has
       in performing the functions of a Judge.  This is appropriate given
       referees are appointed by the Court and perform tasks closely linked
       to the Court's own functions.  The provision is consistent with the
       protection of mediators and arbitrators under section 53C of the
       Act.


Item 7: After subsection 59(2B)

   28. This item inserts new subsection 59(2C) which sets out matters which
       the Rules of Court may make provision for in relation to referrals
       of proceedings or questions to a referee under new section 54A.  The
       intention is to ensure the Court has the necessary rule-making power
       to develop flexible procedures for the Court's use of referees so as
       to enable it to manage cases in the most efficient and effective way
       possible.


   29. The matters the Rules of Court may provide for are broad and cover
       the appointment of referees, procedures to be followed by a referee,
       participation of persons in an inquiry, fees payable to a referee,
       time limits to be observed by the parties and any other matters
       associated with an inquiry or report by a referee.


   30. It is envisaged that the Rules of Court may, for example, provide
       that, subject to any direction by the Court, the referee may conduct
       the proceedings under the reference in such manner as the referee
       thinks fit and is not bound by rules of evidence.  The intention is
       that this procedural flexibility will allow referees to quickly get
       to the core of technical issues and reduce cost and delay for
       litigants.


   31. The matters listed in new subsection 59(2C) are not intended to
       limit subsections (2), (2A) and (2B) which set out other matters
       which the Rules of Court may make provision for or in relation to.


   32. To allow effective use of referees by the Court, this item also
       inserts new subsection 59(2D) which states that the Rules of Court
       may empower the Court or a referee to require that evidence be given
       on oath or affirmation in an inquiry by a referee or empower a
       referee to administer an oath or affirmation.  This subsection is
       not intended to limit the Court's rule-making power under subsection
       (2C).


Item 8: Application of amendments

   33. The amendments made by Schedule 1 will apply to all matters,
       regardless of whether those matters commenced before, on or after
       the commencement of the Schedule.  This is appropriate to ensure
       that the Court is able to utilise the provisions so as to more
       effectively manage cases as soon as possible.




SCHEDULE 2 - International arbitration





International Arbitration Act 1974


Item 1: Subsection 3(1) (definition of court)


   34. This item amends the definition of court in subsection 3(1) of the
       International Arbitration Act 1974 to clarify that the Federal Court
       has concurrent jurisdiction with State and Territory Supreme Courts
       to enforce foreign arbitral awards.


       Item 2: After subsection 8(2)


   35. Consistent with the amendment to the definition of court in
       subsection 3(1) of the International Arbitration Act 1974, this item
       inserts a new subsection 8(3) clarifying that a foreign award may,
       by leave of the Court, be enforced in the Federal Court as if the
       award had been made by the Court. The provision operates subject to
       Part II of the Act.  The grounds when a court may refuse to enforce
       a foreign arbitral award under Part II are set out in section 8 of
       the Act.


       Item 3: At the end of section 18


   36. This item amends section 18 of the International Arbitration Act
       1974 to provide that the Federal Court, in addition to the State and
       Territory Supreme Courts, is specified as a court competent to
       perform the functions referred to in Article 6 of the UNCITRAL Model
       Law on International Commercial Arbitration, the English text of
       which is set out in Schedule 2 of the International Arbitration Act
       1974.  This amendment will enable the Court to perform functions
       relating to the appointment and challenge of arbitrators and
       termination of an arbitrator's mandate, the review of an arbitral
       tribunal's jurisdiction (at the request of a party), and the setting
       aside of an arbitral award.


       Item 4: At the end of section 35


   37. This item amends section 35 of the International Arbitration Act
       1974 to designate the Federal Court, in addition to the State and
       Territory Supreme Courts, as a court for the purposes of Article 54
       of the Convention on the Settlement of Investment Disputes between
       States and Nationals of Other States (the Investment Convention),
       the English text of which is set out in Schedule 3 of the
       International Arbitration Act 1974.  Section 33 of the Act,
       consistently with Article 53 of the Investment Convention, provides
       that an award granted under the ICSID Convention is not subject to
       any appeal or to any other remedy, otherwise than in accordance with
       the Investment Convention.




SCHEDULE 3 - Land acquisition





Administrative Appeals Tribunal Act 1975


Item 1: Subsection 24A(4)

   38. This item repeals and replaces existing subsection 24A(4) of the
       Administrative Appeals Tribunal Act 1975.  In doing so it removes
       existing paragraph 24A(4)(a) which prevents the President of the
       Administrative Appeals Tribunal from acquiring an interest in land
       for the purposes of the Lands Acquisition Act 1989.


   39. This will allow the Tribunal to negotiate and execute leases on its
       own behalf.  The existing requirement in paragraph 24A(4)(b) that
       the President must seek the Minister's approval to enter into a
       contract of an amount exceeding the prescribed amount (currently $1
       million) will remain.


   40. The amendment removes what is a practical impediment to the
       efficient management and operation of the Tribunal while ensuring
       that the requirement for Ministerial approval for major purchases
       continues to apply.  The item is consistent with items 2, 3 and 4
       which make similar amendments in respect of other federal courts and
       tribunals.





      Family Law Act 1975


Item 2: Subsection 38A(4)

   41. This item repeals and replaces existing subsection 38A(4) of the
       Family Law Act 1975.  In doing so it removes existing paragraph
       38A(4)(a) which prevents the Chief Judge from acquiring an interest
       in land for the purposes of the Lands Acquisition Act 1989.


   42. This will allow the Family Court to negotiate and execute leases on
       its own behalf.  The existing requirement in paragraph 38A(4)(b)
       that the Chief Judge must seek the Attorney-General's approval to
       enter into a contract of an amount exceeding the prescribed amount
       (currently $1 million) will remain.


   43. The amendment removes what is a practical impediment to the
       efficient management and operation of the Court while ensuring that
       the requirement for the Attorney-General's approval for major
       purchases continues to apply.  The item is consistent with items 1,
       3 and 4 which make similar amendments in respect of other federal
       courts and tribunals.





Federal Court of Australia Act 1976


Item 3: Subsection 18A(4)

   44. This item repeals and replaces existing subsection 18A(4) of the
       Federal Court of Australia Act 1976.  In doing so it removes
       existing paragraph 18A(4)(a) which prevents the Chief Justice from
       acquiring an interest in land for the purposes of the Lands
       Acquisition Act 1989.


   45. This will allow the Federal Court to negotiate and execute leases on
       its own behalf.  The existing requirement in paragraph 18A(4)(b)
       that the Chief Justice must seek the Attorney-General's approval to
       enter into a contract of an amount exceeding the prescribed amount
       (currently $1 million) will remain.


   46. The amendment removes what is a practical impediment to the
       efficient management and operation of the Court while ensuring that
       the requirement for the Attorney-General's approval for major
       purchases continues to apply.  The item is consistent with items 1,
       2 and 4 which make similar amendments in respect of other federal
       courts and tribunals.





      Native Title Act 1993


Item 4: Subsection 128(4)

   47. This item repeals and replaces existing subsection 128(4) of the
       Native Title Act 1993.  In doing so it removes existing paragraph
       128(4)(a) which prevents the President of the National Native Title
       Tribunal from acquiring an interest in land for the purposes of the
       Lands Acquisition Act 1989.


   48. This will allow the Tribunal to negotiate and execute leases on its
       own behalf.  The existing requirement in paragraph 128(4)(b) that
       the President must seek the Minister's approval to enter into a
       contract of an amount exceeding the prescribed amount (currently $1
       million) will remain.


   49. The amendment removes what is a practical impediment to the
       efficient management and operation of the Tribunal while ensuring
       that the requirement for Ministerial approval for major purchases
       continues to apply.  The item is consistent with items 1, 2 and 3
       which make similar amendments in respect of other federal courts and
       tribunals.

Item 5: Saving of regulations

   50. This item is a technical item which is consequential upon items 1 to
       4 above.  The item preserves regulations which prescribe the maximum
       amount that the heads of courts and tribunals may agree to pay or
       receive on behalf of the Commonwealth without the approval of the
       relevant Minister.


   51. The item is necessary because items 1 to 4 change the numbering of
       the relevant provisions in the principal Acts.


SCHEDULE 4 - Court premises





Public Order (Protection of Persons and Property) Act 1971


Item 1: Section 13A (definition of court premises)

   52. This item amends the definition of 'court premises' in section 13A
       of the Public Order (Protection of Persons and Property) Act 1971.
       Currently the term is limited to any court premises occupied or used
       in connection with the sittings, or any other operations, of the
       court.  This item expands the definition in relation to the
       Federal Court to include premises in respect of which a 'court
       premises order' made under new section 13AA inserted by item 2, is
       in effect.


   53. The purpose of this amendment is to allow areas apart from normal
       court rooms to be designated for a period as court premises.  This
       will make sure it is clear where authorised court officers can
       exercise powers under the Act in the interests of court security.
       The amendment will be particularly useful for hearings 'on country'
       in native title matters.

Item 2: After section 13A

   54. This item amends the Act to insert new section 13AA into Part IIA of
       the Act.  Part IIA provides for the maintenance of public order in
       premises occupied by federal courts and tribunals.  It gives
       authorised officers certain powers to deal with persons who are on
       'court premises' if they believe it is necessary in the interests of
       security.


   55. Subsection 13AA(1) provides that an authorised court official,
       defined by new subsection (8), may make a written order, called a
       'court premises order' which specifies that certain premises are
       court premises for the purposes of the definition inserted by item 1
       above.


   56. Subsection 13AA(2) provides that an authorised court official may
       make a court premises order in respect of particular premises where
       the court official is satisfied that the premises are likely to be
       occupied or used in connection with sittings or other operations of
       the Federal Court.  Subsections 13AA(1) and (2) provide certainty to
       court officials and members of the public as to where the powers
       under the Act might be exercised.


   57. Paragraph 13AA(3)(a) requires that a court premises order must
       describe the premises to which it relates.  It is intended that a
       court premises order could describe buildings other than the Court's
       usual courthouses but also places other than buildings - such as
       where the Court is sitting on open land.  Where the Court is sitting
       on open land, the premises could be described as an area within a
       certain radius of the Bench.


   58. Paragraph 13AA(3)(b) provides that a court premises order has effect
       for the period specified in the order or until it is revoked.


   59. Subsection 13AA(4) requires that the relevant court official must
       give notice of the court premises order to anyone likely to be
       directly affected.  Subsection 13AA(5) sets out how this notice may
       be given.  Subparagraph 13AA(5)(a)(i) requires that before the
       premises to which the order relates are occupied or used by the
       Federal Court, a copy of the order is to be posted in a prominent
       place in the vicinity of the premises.  Subparagraph 13AA(5)(a)(ii)
       requires that if the premises are occupied or used for the purposes
       of a sitting or proceeding, an announcement must be made at the
       beginning of, or during, the sitting or proceeding describing the
       order and its effect.


   60. Additionally, paragraph 13AA(5)(b) provides that if regulations are
       in force in relation to the giving of notice, the requirements
       prescribed by the regulations must also be complied with.
       Subsection 13AA(6) provides that the regulations may prescribe the
       form and content of the notice and the manner in which it is given.


   61. The requirement that members of the public be notified that a court
       premises order has been made and as to the premises to which it
       applies is appropriate given that the powers conferred on authorised
       officers under Part IIA of the Act involve interference with the
       liberty of the individual and criminal sanctions may apply for non-
       compliance.  The notice requirements are consistent with notice
       provisions in comparable areas of Commonwealth law such as trespass.
        Decisions to make court premises orders will be reviewable under
       the Administrative Decisions (Judicial Review) Act 1977.


   62. Subsection 13AA(7) states that a court premises order is not a
       legislative instrument.  This provision is included to avoid doubt,
       as the instrument is not a legislative instrument within the meaning
       of section 5 of the Legislative Instruments Act 2003.


   63. Subsection 13AA(8) defines 'authorised court official', for the
       purposes of the section, to mean the Registrar of the Federal Court,
       or a Federal Court officer authorised in writing by the Registrar of
       the Federal Court for the purposes of the section.  It also defines
       'Federal Court' as the Federal Court of Australia and 'Federal Court
       officer' as an officer within the meaning of subsection 18N(1) of
       the Federal Court of Australia Act 1976 which sets out the officers
       who, in addition to the Registrar, are officers of the Court.




SCHEDULE 5 - Binding financial agreements


          Part 1-Financial agreements




Family Law Act 1975


          Item 1: Subsection 4(1) (after paragraph (a) of the definition of
          spouse party)

   64. The definition of 'spouse party' in subsection 4(1) of the Family
       Law Act 1975 clarifies that financial agreements under Part VIIIA of
       that Act between parties to a marriage can include another person or
       persons as a party to the agreement.  This definition will be
       replaced by a more comprehensive definition of 'spouse party' for
       the purposes of Part VIIIA and Part VIIIAB financial agreements by
       item 18 of Schedule 1 to the Family Law Amendment (De Facto
       Financial Matters and Other Measures) Act 2008.


   65. This item inserts paragraph (aa) into definition of 'spouse party'
       in subsection 4(1) of the Family Law Act 1975 to clarify that a
       termination agreement under Part VIIIA of the Family Law Act 1975,
       between parties to a marriage, can include another person or persons
       as a party to the agreement.  In relation to such an agreement, a
       'spouse party' is defined to mean a party covered by paragraph (a)
       of the definition of 'spouse party', which includes a party to the
       contemplated marriage (section 90B), marriage (section 90C), or
       former marriage (section 90D) to which the agreement relates. 


   66. This item will commence on the later of the start of the day that
       this Bill receives the Royal Assent or immediately after the
       commencement of item 1 of Schedule 1 to the Family Law Amendment (De
       Facto Financial Matters and Other Measures) Act 2008.

          Items 2, 3 and 4

   67. Section 90G of the Family Law Act currently provides that a
       financial agreement is binding on the parties to the agreement if,
       and only if:
     . it is signed by all parties
     . certain technical requirements are complied with, to ensure that the
       spouse parties entered into the agreement with independent legal
       advice, and that evidence of that advice was contained in a
       certificate annexed to the agreement
     . the agreement has not been terminated and has not been set aside by
       a court, and
     . after it is signed, the original agreement is given to one of the
       spouse parties and a copy is given to each of the other parties.


   68. Item 2 substitutes paragraphs 90G(1)(b) and 90G(1)(c) with a new
       paragraph 90G(1)(b) to relax the requirements in relation to
       evidence that the spouse parties to the agreement must provide in
       relation to the obtaining of independent legal advice when entering
       into a financial agreement.  Spouse parties to a financial agreement
       will be required to obtain independent legal advice from a legal
       practitioner about the effect of the agreement on their rights, and
       the advantages and disadvantages, at the time that the advice was
       provided, of making the agreement.
          Spouse parties will also be required to obtain a signed statement
          from the legal practitioner giving the advice stating that the
          advice was given.


   69. Item 4 repeals paragraph 90G(1)(e) to remove the requirement that
       the original agreement be given to one of the spouse parties and a
       copy be given to each of the other parties.  Item 3 makes a minor
       technical amendment to paragraph 90G(1)(d) as a consequence of the
       amendment made by item 4 of this Schedule.


          Items 5, 6 and 7

   70. In a similar fashion to section 90G of the Family Law Act 1975,
       section 90J provides that a termination agreement is binding on the
       parties to the agreement if, and only if:
     . it is signed by all parties
     . certain technical requirements are complied with, to ensure that the
       spouse parties entered into the agreement with independent legal
       advice, and that evidence of that advice was contained in a
       certificate annexed to the agreement
     . the agreement has not been terminated and has not been set aside by
       a court, and
     . after it is signed, the original agreement is given to one of the
       spouse parties and a copy is given to each of the other parties.


   71. Item 5 substitutes paragraphs 90J(2)(b) and 90J(2)(c) with a new
       paragraph 90J(2)(b) to relax the requirements in relation to
       evidence that the spouse parties to the agreement must provide in
       relation to the obtaining of independent legal advice when entering
       into a termination agreement.  Spouse parties to a termination
       agreement will be required to obtain independent legal advice from a
       legal practitioner about the effect of the agreement on their
       rights, and the advantages and disadvantages, at the time that the
       advice was provided, of making the agreement.
          Spouse parties will also be required to obtain a signed statement
          from the legal practitioner giving the advice stating that the
          advice was given.


   72. Item 7 repeals paragraph 90J(2)(e) to remove the requirement that
       the original agreement be given to one of the spouse parties and a
       copy be given to each of the other parties.  Item 6 makes a minor
       technical amendment to paragraph 90J(2)(d) as a consequence of the
       amendment made by item 7 of this Schedule.


          Item 8: Application


   73. Subitem (1) deals with the application of the amendments made by
       items 2 to 7 of this Schedule to financial and termination
       agreements that have already been made.  The amendments will apply
       to agreements made on or after 27 December 2000 - the date of
       commencement of the Family Law Amendment Act 2000 which inserted the
       financial agreement provisions into the Family Law Act 1975.


   74. However, subitem (2) provides that the amendments made by items 2 to
       7 of this Schedule will not apply to an agreement where a court has
       made an order setting aside the agreement.


          Part 2-Financial matters relating to de facto relationships





      Family Law Act 1975



          Item 9: Subsection 4(1) (at the end of the definition of spouse
          party)


   75. This item will insert paragraph (c) into the definition of 'spouse
       party' as amended by item 21 of Schedule 1 to the Family Law
       Amendment (De Facto Financial Matters and Other Measures) Act 2008.
       It will have the same effect as the amendment made by item 1 of this
       Schedule, except in relation to termination agreements made under
       Part VIIIAB of the Family Law Act 1975.


          Items 10, 11 and 12

   76. These items will amend section 90UJ, dealing with the requirements
       for a Part VIIIAB financial agreement.  They will have the same
       effect to the amendments made by items 2, 3 and 4 of this Schedule,
       except in relation to financial agreements between de facto couples.


          Item 13, 14 and 15

   77. These items will amend section 90UL of the Family Law Act 1975,
       dealing with the termination of a Part VIIIAB financial agreement.
       They will have the same effect to the amendments made by items 5, 6
       and 7 of this Schedule, except in relation to financial agreements
       between de facto couples.

          Item 16: Subsection 90UM(5)

   78. Section 90UM provides for the setting aside of Part VIIIAB financial
       agreements and termination agreements.  With one exception, the
       grounds for setting aside a Part VIIIAB agreement are those that
       apply under section 90K to set aside a financial agreement or a
       termination agreement between parties to a marriage. 


   79. Section 90UM also provides one significant additional ground, as set
       out in paragraph 90UM(1)(k) and subsection 90UM(5), specific for
       Part VIIIAB financial agreements covered by section 90UE.  Section
       90UE provides for the continued operation of written agreements made
       by de facto couples under the de facto financial law of a non-
       referring State covering property settlement or spouse maintenance
       matters if the couples later satisfy a geographical connection with
       a referring State or Territory.


   80. This item substitutes subsection 90UM(5) with a new subsection,
       which will allow the court to set aside a Part VIIIAB financial
       agreement covered by section 90UE if the agreement was made in
       compliance with requirements similar to those set out in section
       90UJ as amended by items 10, 11 and 12 of this Schedule.  It must
       also be unjust and inequitable, having regard to how the agreement
       deals with the parties' financial arrangements, if the court does
       not set the agreement aside. 

          Item 17: Application

   81. Subitem (1) deals with the application of the amendments made by
       items 10 to 15 of this Schedule to agreements made under sections
       90UB, 90UC and 90UD of the Family Law Act 1975 and Part VIIIAB
       termination agreements.  The amendments will apply to these
       agreements made on or after the day of commencement of item 1 of
       Schedule 1 to the Family Law Amendment (De Facto Financial Matters
       and Other Measures) Act 2008.


   82. However, subitem (2) provides that the amendments made by items 10
       to 15 of this Schedule will not apply to an agreement where a court
       has made an order setting aside the agreement.


 


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