EXPLANATORY STATEMENT
Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012
Proclamation
The Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 validates certain orders of the Family Court of Australia and the Federal Magistrates Court made in the absence of Proclamations under subsection 40(2) of the Family Law Act 1975. Schedule 2 makes related amendments to the Family Law Act, including the substitution of subsection 40(1) and the repeal of subsection 40(2).
Clause 2 of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act provides that Schedule 2 is to commence on a single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day the Act receives the Royal Assent, then the provisions commence on the day after the end of that period. These commencement provisions enable regulations to be made to maintain the status quo of the exercise of jurisdiction by the Family Court of Australia by restricting this jurisdiction in certain states and territories from time to time.
Regulations restricting the jurisdiction of the Family Court of Australia have been made and enacted in conjunction with this Proclamation.
The Proclamation fixes 21 April 2012 as the date on which Schedule 2 commences.
The Proclamation has been drafted by the Office of Legislative Drafting and Publishing. No consultation was required given the administrative nature of this instrument.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003. However, the Proclamation is exempt from disallowance and sunsetting provisions under the Legislative Instruments Act 2003.
Authority: Subsection 2(1)of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Family Law Amendment (Validation of Certain Orders and Other Measures) Proclamation 2012
This Proclamation is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Proclamation
The Proclamation sets 21 April 2012 as the date on which Schedule 2 of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 commences.
The Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 validates certain orders of the Family Court of Australia and the Federal Magistrates Court made in the absence of Proclamations under subsection 40(2) of the Family Law Act 1975.
Schedule 2 amends the Family Law Act to remove the requirement for a Proclamation to be made in respect of fixing a date on and after which jurisdiction of the Family Court of Australia under the Family Law Act could be exercised in each of the States and Territories. The effect of Schedule 2 provides the Family Court of Australia with a default ability to exercise jurisdiction validly conferred on it. This differs from the previous situation which required something additional to happen, in the form of a Proclamation, before the court was able to validly exercise jurisdiction.
Human rights implications
The Proclamation engages but does not limit the right to a fair trial. The right to a fair trial is protected in Article 14 of the International Covenant on Civil and Political Rights (ICCPR). Article 14 is aimed at ensuring the proper administration of justice, which includes the right to equality before the courts and tribunals and the right to a fair and public hearing by a competent, independent and impartial tribunal established by law.
The right to a fair trial will not be prejudiced by the Proclamation. The Proclamation commences a Schedule of an Act which clarifies the jurisdiction of the Family Court of Australia. This aligns with the aims of Article 14.
Conclusion
The Proclamation is compatible with human rights.