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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.