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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
FAMILY LAW AMENDMENT (INFORMATION SHARING) BILL 2023
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, the Hon Mark Dreyfus KC MP)
AMENDMENTS TO THE FAMILY LAW AMENDMENT (INFORMATION
SHARING) BIL 2023
(Government)
GENERAL OUTLINE
1. The purpose of these amendments to the Family Law Amendment (Information
Sharing) Bill (the Bill) is to strengthen the protections within, and statutory oversight of
the operation of, the enhanced information sharing framework within the Family Law
Act 1975, to be established by provisions in the Bill. The proposed amendments would
address Recommendation 2 of the Senate Standing Committee on Legal and
Constitutional Affairs (the Senate Committee) report in its inquiry into the Bill (the
Senate Committee Report) and address key issues raised in the Senate Committee
Report, informed by submissions made to the Senate Committee inquiry into the Bill.
2. Amendment 1 would amend proposed new paragraph 67ZBD(2)(a) to ensure the court
is not required to form a view on the existence of abuse, neglect or family violence risk
prior to making an order for particulars. Instead, the amendment would provide that
only a suspicion of a child being subjected or exposed to abuse, neglect or family
violence is required for such an order to be made.
3. Amendment 2 would make the same amendment to proposed new paragraph
67ZBE(2)(a) to ensure the court is not required to form a view on the existence of abuse,
neglect or family violence risk prior to making an order for documents or information.
4. Amendments 1 and 2 will therefore provide greater flexibility to the court to issue
orders for particulars, documents and information. These amendments would support
the policy intention of the Bill and the National Strategic Framework for Information
Sharing between the Family Law and Family Violence and Child Protection Systems, by
ensuring family safety risk information is available to support the court's
decision-making in the best interests of the child.
5. Amendment 3 would amend proposed new subsection 67ZBG(2) to require that
information sharing agencies must provide advice to the court about any risks to
consider when disclosing particulars, documents or information.
6. Amendment 3 removes ambiguity for agencies, changing a discretionary consideration
on behalf of the agency, to a mandatory requirement. This change strengthens the
protections around the disclosure of sensitive information, by ensuring the court is made
aware of any specific risks to safety identified by the information sharing agency.
7. Amendment 4 would expand the operation of proposed new subsection 67ZBH(4) to
ensure the court must notify information sharing agencies and consider their advice
when seeking to disclose the identity of a notifier who is also a party to the proceedings.
This expansion strengthens the legislative protections afforded to notifiers of suspected
child abuse or family violence who are also a party to the proceedings, which could
include victim-survivors of abuse or family violence.
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8. Disclosing the identity of a notifier who is also a party to proceedings, as permitted by
new paragraph 67ZBH(3)(b), is intended to support the court in identifying and
mitigating the risk of systems abuse. This amendment balances the benefits of
identifying patterns of systems abuse against the potential risk of harm to victim-
survivors who have made notifications, if their identities are disclosed.
9. Amendment 5 would amend proposed new section 67ZBL to require that a review of the
operation of the amendments in the Bill be conducted as soon as practicable after the
end of 3 years following commencement of the Bill. This amendment would represent a
second statutory review of the Bill, being in addition to the review to be arranged by the
Minister 12 months after commencement of the Bill currently proposed by new section
67ZBL.
10. A review of the provisions in the Bill 12 months after enactment will ensure they are
achieving their intended objective, while an additional review 3 years following
enactment will further ensure the provisions are operating to protect the safety of
families accessing the family law system. This amendment to introduce a second review
of the provisions will allow for the appropriate examination of the effectiveness of any
amendments to the enhanced information sharing framework made as a result of the
12 month review, and provide an additional opportunity for evolving best practice in
responding to family and domestic violence, child abuse and neglect to be considered.
FINANCIAL IMPACT
11. There are no financial impacts associated with these amendments.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Family Law Amendment (Information Sharing) Bill 2023
1. The amendments to the Bill are 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.
Overview of the Bill
1. The purpose of these amendments to the Family Law Amendment (Information
Sharing) Bill (the Bill) is to strengthen the protections within, and statutory oversight of
the operation of, the enhanced information sharing framework within the Family Law
Act 1975, to be established by provisions in the Bill. The proposed amendments would
address Recommendation 2 of the Senate Standing Committee on Legal and
Constitutional Affairs (the Senate Committee) report in its inquiry into the Bill (the
Senate Committee Report) to address key issues raised in the Senate Committee Report,
informed by submissions made to the Senate Committee inquiry into the Bill.
2. In summary:
a. Amendments 1 and 2 would amend proposed new paragraphs 67ZBD(2)(a)
and 67ZBE(2)(a) to ensure the court is not required to form a view on the
existence of abuse, neglect or family violence risk prior to making an order for
particulars, documents or information. Instead, these amendments would
provide that only a suspicion of a child being subjected or exposed to abuse,
neglect or family violence is required for such an order to be made.
b. Amendment 3 would amend proposed new subsection 67ZBG(2) to require
that information sharing agencies must provide advice to the court about any
risks to consider when disclosing particulars, documents or information.
c. Amendment 4 would expand the operation of proposed new subsection
67ZBH(4) to ensure the court must notify information sharing agencies and
consider their advice when seeking to disclose the identity of a notifier who is
also a party to the proceedings. This expansion strengthens the legislative
protections afforded to notifiers of suspected child abuse or family violence
who are also a party to the proceedings, which could include victim-survivors
of abuse or family violence
d. Amendment 5 would amend proposed new section 67ZBL to require that a
review of the operation of the amendments in the Bill be conducted as soon as
practicable after the end of 3 years following commencement of the Bill. This
amendment would represent a second statutory review of the Bill, being in
addition to the review to be arranged by the Minister 12 months after
commencement of the Bill currently proposed by new section 67ZBL.
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Human rights implications
2. The amendments will promote the effective operation of the enhanced information
sharing framework to be established by the Bill. The Bill engages the following
human rights:
• The right to a fair trial and a fair hearing: Article 14(1) of the International
Covenant on Civil and Political Rights (ICCPR)
• The right to privacy: Article 17 of the ICCPR
• Protection of children, including on dissolution of a marriage: Articles 23(4)
and 24(1) of the ICCPR
• Child's rights are guaranteed and must be available to all children without
discrimination of any kind: Article 2 of the Convention on the Rights of the
Child (CRC)
• Child's best interests must be the primary consideration of the family courts,
State and Territory courts, public welfare institutions and administrative
authorities or legislative bodies: Article 3(1) of the CRC
• Protection and care of children for his or her well-being to this end, shall take
all appropriate legislative and administrative measures: Article 3(2) of the
CRC
• Protection from a child being separated from his or her parents against their
will, unless it is in the best interests of the child and necessary to protect from
abuse or neglect, or where parents are living separately: Article 9(1) of the
CRC
• Child's right to maintain personal relations and direct contact with parents, if
separated from one or both, unless contrary to the child's best interests: Article
9(3) of the CRC
• Protection of children from physical or mental violence, injury or abuse,
neglect or negligent treatment, maltreatment or exploitation, sexual abuse and
exploitation: Articles 19(1) and 34 of the CRC
• Taking appropriate measures to modify social and cultural patterns of men and
women with a view to eliminating discrimination: Article 5 (a) of the
Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW), and
• Rights of equality and non-discrimination in matters relating to marriage and
parental responsibility: Article 16(d) of the CEDAW.
3. The Bill as amended is compatible with these applicable human rights and freedoms
as provided for in the Explanatory Memorandum to the Bill.
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NOTES ON AMENDMENTS
Amendment 1: Item 7, page 4 (lines 21 to 24) Provision of particulars relating to
suspected abuse
1. Amendment 1 responds to submissions made to the Senate Committee which
indicated new paragraphs 67ZBD(2)(a) and 67ZBE(2)(a) could be interpreted
narrowly, requiring the court to form a view of the existence of abuse, neglect or
family violence risk prior to making an order for particulars, documents or
information. This narrow construction could unintentionally limit the court's
discretion to issue an order for particulars, documents or information, preventing the
court from considering all available information when making decisions in the best
interests of children, with regard to their safety and the safety of those involved in
their care.
2. Amendment 1 would omit new paragraph 67ZBD(2)(a) and substitute amended
paragraph 67ZBD(2)(a).
3. The amended paragraph 67ZBD(2)(a) instead requires there to be a suspicion that a
child has been subjected or exposed to abuse, neglect or family violence, and does not
require that the court formally come to this view. This drafting is reflective of what is
currently included within section 69ZW of the Act.
4. Amendment 1 will mitigate the potential risk of narrow interpretation of orders under
new section 67ZBD, and provides greater flexibility to the court to issue orders for
particulars, seeking critical family safety information.
Amendment 2: Item 7, page 6 (lines 11 to 14) Provision of information relating to
suspected abuse
5. Amendment 2 mirrors amendment 1 in new paragraph 67ZBE(2)(a) to ensure
consistency between an order for particulars in new section 67ZBD, and an order for
documents or information in new section 67ZBE.
6. Amendment 2 would omit new paragraph 67ZBE(2)(a) and substitute amended
paragraph 67ZBE(2)(a).
7. The amended paragraph 67ZBE(2)(a) requires there to be a suspicion that a child has
been subjected or exposed to abuse, neglect or family violence, and does not require
that the court formally come to this view.
8. Similar to amendment 1, amendment 2 will mitigate the potential risk of narrow
interpretation of orders under new section 67ZBE, and provides greater flexibility to
the court to issue orders for documents or information relating to critical family safety
information.
Amendment 3: Item 7, page 8 (line 33) Advice to the court
9. Amendment 3 would provide certainty about when information sharing agencies
would provide additional information to the court concerning risks associated with the
disclosure of particulars, documents or information shared.
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10. Amendment 3 would omit 'may' from new subsection 67ZBG(2), and substitute
'must' in its place within the subsection.
11. In doing so, this amendment removes possible ambiguity regarding when information
sharing agencies would provide advice to the court under new section 67ZBG,
amending the provision from a discretionary consideration on behalf of the agency, to
a mandatory requirement.
12. Advice under new section 67ZBG is intended to support the court when considering
the disclosure of particulars, documents or information to balance the risk of harm
posed by disclosure to all relevant persons, against the principles of natural justice and
procedural fairness. Strengthening the obligation on agencies to provide this advice
will ensure the court has all relevant information available to consider any risks
associated with material shared under new Subdivision DA. Additionally, it makes
clear the expectation that where there is potential risk associated with the disclosure
of shared information, the information sharing agency has a responsibility to bring
this to the attention of the court.
Amendment 4: Item 7, page 9 (line 32) Admission of particulars etc. into evidence
13. Amendment 4 would expand the operation of proposed new subsection 67ZBH(4) to
ensure the court must advise information sharing agencies and consider their advice
when seeking to disclose the identity of a notifier who is also a party to the
proceedings.
14. Amendment 4 would omit '(3)(c)' from new subsection 67ZBH(4), and substitute
'3(b) or (c)' into this subsection.
15. In doing so, the amendment retains the obligation for the court to ensure an
information sharing agency is notified about an intended disclosure, and consider
advice provided, where that disclosure is made under new paragraph 67ZBH(3)(c),
while extending that same obligation to an intended disclosure under new paragraph
67ZBH(3)(b).
16. New paragraph 67ZBH(3)(c) provides that the identity of a notifier may be disclosed,
subject to the steps in subsection 67ZBH(4), if the court is satisfied that the notifier's
identity, or information that could identify the notifier, is critically important to
proceedings and that failure to make the disclosure would prejudice the proper
administration of justice.
17. New paragraph 67ZBH(3)(b) provides for disclosure of the identity of a notifier who
is also a party to the proceedings. The intention behind allowing the court to disclose
the identity of a notifier who is also a party to the proceedings is to support the
identification of systems abuse as a form of family violence.
18. Amendment 4 recognises the importance of identifying systems abuse by parties to
the proceedings, while strengthening the legislative protections against the potential
risks of harm to victim-survivors who have made notifications, if their identities are
disclosed under new paragraph 67ZBH(3)(b).
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Amendment 5: Item 7, page 11 (lines 4 to 7) Review of provisions
19. Amendment 5 would address Recommendation 2 of the Senate Committee Report
regarding the need for continued monitoring and oversight of the effective operation
of provisions contained in the Bill. This recommendation was informed by a number
of submissions made to the Senate Committee inquiry, which were supportive of the
existing statutory review in new section 67ZBL, but emphasised the importance of
ongoing monitoring and review when establishing a new framework for the sharing of
sensitive information. This particularly applied to the effectiveness of the legislative
protections contained in the Bill and information sharing safeguards to be prescribed
by amendments to the Family Law Regulations 1984 (the Regulations).
20. Amendment 5 would omit new subsection 67ZBL(1), and substitute amended
subsection 67ZBL(1), and new paragraphs 67ZBL(1)(a) and (b).
21. New paragraph 67ZBL(1)(a) would retain the requirement for the Minister to arrange
a review of the operation of the new Subdivision DA to be introduced by the Bill, and
related amendments to the Regulations, no later than 12 months after commencement.
22. New paragraph 67ZBL(1)(b) would introduce a new requirement for the Minister to
arrange a review of the operation of the new Subdivision DA, and related
amendments to the Regulations, as soon as practicable after the end of 3 years after
commencement of the provisions in the Bill.
23. Amendment 5 will ensure that the enhanced information sharing scheme introduced
by new Subdivision DA in the Bill is operating as intended to support the safe, timely
and effective sharing of family violence, abuse and neglect information, beyond the
12 month statutory review period and within the first 3 years of operation. The second
review will ensure that the effectiveness of any amendments to the framework made
as a result of the 12 month review can be appropriately examined, and provide an
additional opportunity for evolving best practice in responding to family and domestic
violence, child abuse and neglect to be considered.
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