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 Strategic Priority 3 - Justice

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Maintain an efficient Commonwealth justice system

Our government is responsible for the Commonwealth law and justice system. We work closely with justice institutions and support services to develop laws, policies and programs to ensure the system meets the needs of the Australian community.

Most stakeholder survey targets for this strategic priority were exceeded this year. Stakeholders across organisations including Australian, state and territory governments, courts, tribunals, peak bodies, legal service providers and research institutions provided feedback on our delivery of activities under this strategic priority. The stakeholder survey showed a high level of client satisfaction with 'professionalism, skills and commitment of the staff involved in maintaining the Commonwealth justice system' (91 per cent). The stakeholder survey results for client satisfaction with 'staff effectiveness in maintaining the justice system' was not achieved with a survey score of 78 per cent; just below the target of 80 per cent.

Australia's regional and global position on civil justice (Factor 7) in the World Justice Project's Rule of Law Index is used to measure whether justice systems are accessible and affordable, and free of discrimination, corruption and improper influence by public officials. It measures whether court proceedings are conducted without reasonable delays and if decisions are enforced effectively. It measures accessibility, impartiality and effectiveness of alternative dispute resolution mechanisms. Australia's ranking improved to position 13 of 113 countries.

We also participated in all performance meetings and forums as outlined in the National Partnership Agreement on Legal Assistance Services 2015-20.

Table 6 provides results of the client survey against each of our performance measures.

Table 6: KPI performance statement for Strategic Priority 3: Justice
KPI Performance criterion(a) Target Result
Effectiveness Stakeholder and client satisfaction with the department's effectiveness in maintaining the Commonwealth justice system 80% 78%
Efficiency in meeting goals Civil justice policy advice, program work and legislative changes Work is completed on time, within budget and in compliance with relevant guidelines 79%
Professionalism, skills and commitment Stakeholder and client satisfaction with the professionalism, skills and commitment of our staff 80% 91%
  Actively engage with all parties under the National Partnership Agreement on Legal Assistance Services Participate in all meetings and forums 100%
Community impact Australia's regional and global position on civil justice (Factor 7) in the World Justice Project's Rule of Law Index Position 15 or above 13
(a) Performance criteria as per Corporate Plan 2017–21, p. 11 and Portfolio Budget Statements 2017–18, Program 1.1, p. 13, Program 1.4, p. 15, Program 1.6, p. 16 and Program 1.9, p. 18.

The key activities under this strategic priority and a summary of relevant progress are provided Table 7. Further information about progress of achievements follows in the Analysis section.

Table 7: Activity performance statement for Strategic Priority 3: Justice
Key activity Result
Develop and implement reforms to the family law system to meet the needs of Australian families, including responses to family violence ACHIEVED
Marriage Amendment (Definition and Religious Freedoms) Act 2017
Family Law (Superannuation) (Interest Rate for Adjustment Period) Determination 2018 registered
Maintenance Orders (Commonwealth Officers) Regulations 2018 remade
Legislation (Family Law Instruments) Sunset-altering Declaration 2018 made
ALRC members appointed to review the family law system
ONGOING
Amendments to laws consequential to the amended legal definition of marriage
Amendments to the Family Law (Superannuation) Regulations 2001
ALRC review of the family law system
Civil Law and Justice Legislation Amendment Bill 2017
Family Law Amendment (Parenting Management Hearings) Bill 2017
Family Law Amendment (Family Violence and Other Measures) Bill 2017
Family Law Amendment (Family Violence and Cross-Examination) Bill 2018
Pilots for legally assisted and culturally appropriate family dispute resolution services
Scholarship program for family law services training
Collaborate with states and territories to improve the intersection between the family law system and the state and territory criminal justice and child protection systems ONGOING
Leadership role in the Council of Attorneys-General Family Violence Working Group
Administer funding for family law services and the regulation of family dispute resolution practitioners ACHIEVED
Completion and evaluation of the Post Order Support Pilot
Research on children and young people in separated families
Redevelopment of the Family Relationships Online website
ONGOING
Administering the Family Relationships Services Program and piloting services
Accreditation of Family Dispute Resolution practitioners
Pilots for legally assisted and culturally appropriate family dispute resolution services
Undertake international parental child abduction casework ACHIEVED
82 applications finalised for the return of children abducted to and from Australia
ONGOING
Processing 126 applications for the return of children abducted to and from Australia
Support the federal courts and tribunals to improve their efficiency and funding arrangements ACHIEVED
Court and tribunal appointments
Legislative Options Report to harmonise practice and procedures in the Administrative Appeals Tribunal
High Court of Australia funding to enhance security
ONGOING
Legislative amendments following the Legislative Options Report
Implement and administer programs and schemes for legal assistance ACHIEVED
Financial assistance scheme for witnesses attending royal commissions
Provision of additional funding under the National Partnership Agreement on Legal Assistance Services 2015–20
ONGOING
Administering the National Partnership Agreement on Legal Assistance Services 2015–20
Administering the Indigenous Legal Services Program
Financial assistance schemes for legal costs and related expenses
Native Title Respondents Scheme
Administering the Expensive Commonwealth Criminal Cases Fund
Administering the Community Legal Services Program
Support ongoing development of commercial law and policy, including in the areas of personal property securities and bankruptcy ONGOING
Participation with The Hague international conventions
Response to the Review of the Personal Property Securities Act 2009
Bankruptcy Amendment (Debt Agreement Reform) Bill 2018
Bankruptcy Amendment (Enterprise Incentives) Bill 2017

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Analysis

Reforming marriage laws and programs

This year saw historic reforms in marriage equality in Australia. On 9 December 2017, the definition of marriage in the Marriage Act 1961 was amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 to be: 'the union of two people, to the exclusion of all others, voluntarily entered into for life'. The right to marry in Australia is no longer determined by sex or gender.

Our key achievements in delivering marriage equality:

  • Developing exposure draft legislative reforms to change the legal definition of marriage, and supporting Parliamentary committee consideration of these proposals.
  • Providing advice to the Attorney-General during Parliament's consideration of the Marriage Amendment (Definition and Religious Freedoms) Act 2017.
  • Leading the process enabling prompt commencement of the reforms, including preparing the instrument of proclamation. The Governor-General signed the proclamation on 8 December 2017. Marriage equality commenced within two days of being passed by the Parliament.
  • Working closely with marriage celebrants, religious bodies, state and territory governments, marrying couples and the public to ensure the marriage equality reforms were successfully implemented immediately after the legislation commenced.
  • Developing dedicated accessible advice and information about the reforms which was available immediately for the public, celebrants, state and territory officials and media.
  • Providing information to more than 8500 marriage celebrants in Australia to ensure they were aware of the change to the law and what it meant for marrying couples.
  • Engaging with celebrant associations and religious bodies authorised to perform marriages as 'recognised denominations' under the Marriage Act 1961 to explain the changes.
  • Advising foreign embassies and consulates in Australia about the reforms, including the recognition of foreign same-sex marriages in Australia.
  • Working with state and territory governments that are responsible for registering marriages in Australia to ensure their systems and processes were updated and able to register same-sex marriages, including through the National Marriage Equality Working Group.
  • Updating marriage forms and stationery used in Australia to remove gendered terms and ensure these are appropriate for use by marrying couples (changes were made in consultation with the Australian Bureau of Statistics, which uses this data to compile national statistics on marriages in Australia).

The new category of 'religious marriage celebrant' created by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 was also implemented as part of the Marriage Celebrants Programme, enabling celebrants in the new category to exercise their religious beliefs to refuse to solemnise a marriage.

In the first six months of the reforms, around 2500 same-sex marriages were registered in Australia. Many more overseas same-sex marriages are also recognised. Data suggests that greater than 10 per cent of same-sex couples who live together are now married.

We reviewed the Marriage Regulations 1963 in line with the sunsetting framework, replacing them with new Marriage Regulations 2017 on 1 April 2018. The new regulations streamline and simplify requirements, remove obsolete and unnecessary provisions and reduce the regulatory burden imposed on marriage celebrants. We consulted celebrant associations, federal courts, state and territory justice departments and marriage registries, registered training organisations and Australian Government agencies to prepare the new Regulations.

We revised the Guidelines on the Marriage Act 1961 for authorised celebrants to reflect the marriage equality reforms, and provide additional guidance to celebrants and the marrying public.

We prepared the Marriage (Recognised Denominations) Amendment (New Denominations and Other Name Changes) Proclamation 2018 that commenced on 31 May 2018. The Amendment Proclamation declared 10 new religious bodies or organisations as 'recognised denominations' for the purposes of the Marriage Act 1961 and updated the names of nine existing denominations.

We established new arrangements between the Governor-General of the Commonwealth and the Governor of each state to enable state officers to perform functions under the Marriage Act 1961. The new arrangements replace out-of-date instruments and ensure the appropriate legal authority exists in each state to make nominations for office holders under the Marriage Act 1961.

We continue to administer the Marriage Celebrants Programme, which regulates over 8500 marriage celebrants in Australia. We successfully meet regulator performance and cost-recovery reporting obligations.

Improvements to the family law system

Changes in social norms and increasing community expectations for tailored services require reviews and reform of legislation, policy and programs. Reviews of the family law system pave the way for long-term, fundamental improvements to adapt to the needs of families in Australia.

We supported the establishment of the first comprehensive review of the family law system since the Family Law Act 1975 came into operation. This included issuing terms of reference and the appointment of experts in family law and services to the Australian Law Reform Commission to lead and undertake the review.The Commission is considering what reforms to the system are required to meet the needs of families into the future. It has received over 400 submissions in response to the Issues Paper it published and has undertaken over 100 consultations with stakeholders; reflecting a strong public interest in the review of the family law system.

The Family Law Amendment (Parenting Management Hearings) Bill 2017 was introduced into Parliament in December 2017. This legislation implements a trial of Parenting Management Hearings to provide multi-disciplinary (and less adversarial) alternatives to court processes for those resolving parenting arrangements following separation. It allows self-represented parties to come to parenting agreements quickly and with less expense.

This year we provided advice to the Attorney-General on family law policy issues related to the proposed referral of powers from Western Australia for superannuation-splitting for de facto couples.

The Maintenance Orders (Commonwealth Officers) Regulations 2018 were remade in consultation with the Department of Defence and the Department of Veterans' Affairs. The Orders enforce state and territory court orders that relate to the maintenance of children (or other people). The sunsetting dates of family law regulations were deferred until after the review of the family law system by the Australian Law Reform Commission.

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Improving the family law system's response to family violence

Pilots under the Third Action Plan of the National Plan to Reduce Violence against Women and their Children 2010–2022 are in the second year of a three-year program. The pilots provide legally assisted and culturally appropriate family dispute resolution services through eight family relationship centres and integrated duty lawyer services with social support services in 16 family law court registries, and circuits in some states and territories.

The specialist domestic violence units and health justice partnerships pilot program, which commenced under the Women's Safety Package in 2015, was increased by six new units and expansion of one existing unit, commencing operations in January 2018.

At the 2016 COAG National Summit on reducing violence against women and their children, concerns were identified about the additional trauma that victims experience when cross-examined by their alleged perpetrator. In response, we finalised and released an Exposure Draft of the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill in July 2017 that received 43 submissions.

We engaged the Australian Institute of Family Studies (AIFS) to work with the family law courts to determine the prevalence of direct cross-examination of victims by alleged perpetrators. The AIFS report of March 2018 found that direct cross-examination occurred in 173 finalised hearings in the Family Court of Australia and the Federal Circuit Court of Australia over two years.

The Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 was introduced into the House of Representatives in June 2018. The Bill gives victims of family violence appropriate protections from personal cross-examination by alleged perpetrators.

We partnered with the Council of Attorneys-General Family Violence Working Group to improve the interaction between federal family law and state and territory child protection and family violence law systems. The working group produced best practice principles for information sharing and will soon finalise a framework for sharing court orders, judgments and transcripts.

In December 2017, the Family Law Amendment (Family Violence and Other Measures) Bill 2017 was introduced into the Senate. The Bill reduces the need for families to deal with multiple courts across federal family law and state and territory family violence and child protection systems. The Bill was referred to the Legal and Constitution Affairs Legislation Committee on 7 December 2017. In April 2018, the committee recommended that the Bill be passed.

The National Judicial College of Australia commenced a roll-out of family law training for state and territory judicial officers about exercising parenting and property jurisdiction under the Family Law Act. This project was funded by the Attorney-General's Department and will assist state and territory judicial officers to assist families holistically with their family violence and family law matters in one court setting.

Under the Family Law Act 1975, we identify and nominate appropriate advocates to act as litigation or case guardians for children and people with a disability in family law proceedings. In 2017-18, we processed 14 requests for litigation guardians and nominated four guardians.

Administer funding for family law services and the regulation of family dispute resolution practitioners

Under the Family Relationships Services Program, the government provides funding to 65 not-for-profit organisations to deliver family law services. This gives families alternative means to resolve family disputes rather than going to a family law court. The services include family relationship centres, counselling, family dispute resolution and mediation, children's contact centres and other intensive post-separation support services.

We administer the Family Dispute Resolution Practitioner Accreditation scheme under the Family Law (Family Dispute Resolution Practitioners) Regulations 2008. The scheme provides nationally consistent standards for family dispute resolution practitioners providing competency in screening and assessing families for family violence and child abuse. In June 2018, there were 2280 accredited family dispute resolution practitioners. The number of registered practitioners remains steady.

Between July 2016 and October 2017, a Post Order Support Pilot was conducted to provide additional services to families that had already been to court. The pilot involved around 160 adults who had been to court and obtained interim or final parenting orders. The pilot was evaluated and a report was published in June 2018 for service providers and the department about the delivery of future services.

Australian Institute of Family Studies research was undertaken with children and young people whose parents had separated and had accessed the family law system. The research looked at the experiences of children and young people after their parents separate to identify areas where the family law system and other services could be improved. The interviews provided rich insights into the experiences and needs of children and young people. The report was released in June 2018.

During 2017-18, we funded a fourth round of scholarships for Aboriginal and Torres Strait Islander peoples and people from CALD communities to undertake study and build skills in understanding the family law system. Previous recipients have obtained employment in government-funded family law services. This has expanded the culturally sensitive services available to families.

The Family Relationships Online website was updated and refreshed during 2017-18 in partnership with the Department of Social Services. The website includes new resources and gives access to information that helps families understand dispute resolution especially when undertaking the process themselves without going to court.

Undertake international parental child abduction casework

We administer Australia's obligations under the Hague Convention on the Civil Aspects of Child Abduction and the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children.

We received 126 new abduction applications involving children abducted from and brought to Australia. This compares to 144 abduction applications in 2016-17. We finalised 82 applications.

Supporting federal courts and tribunals

We assisted the High Court of Australia in obtaining funding to enhance security following a review of the High Court of Australia's security arrangements.

In July 2017, a report to standardise the practices and procedures of the Administrative Appeals Tribunal was finalised. The changes follow the amalgamation of the Administrative Appeals Tribunal with the former Social Security Appeals Tribunal and Migration Review and Refugee Review Tribunals and the transition to its current structure and responsibilities. The revised practices and procedures bring about efficiencies in the operation of the tribunal.

During 2017-18, the following were finalised:

  • Federal Courts - five judges were appointed to the Federal Court of Australia, four judges to the Family Court of Australia and nine judges to the Federal Circuit Court of Australia. This includes the appointment of the Chief Justice of the Family Court and the Chief Judge of the Federal Circuit Court.
  • Administrative Appeals Tribunal - 72 appointments comprising four deputy presidents, 16 senior members and 52 members.
  • Australian Law Reform Commission - a new president of the Commission who was dually appointed as a Federal Court judge.

We are progressing a key government priority to reform Australia's family law courts system, by bringing together the Family Court of Australia and the Federal Circuit Court of Australia to be known as the Federal Circuit and Family Court of Australia (FCFC). Division 1 of the FCFC will be a continuation of the Family Court and Division 2 of the FCFC will be a continuation of the Federal Circuit Court. A new Family Law Appeal Division in the Federal Court of Australia will be established to hear all appeals in family law matters from the FCFC. The reform will complement the Australian Law Reform Commission review of the family law system.

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Improving legal assistance

We administer and manage programs that deliver legal assistance services and provide quality outcomes. The implementation and administration of programs and schemes for legal assistance is an ongoing activity for the department. We administer the National Partnership Agreement on Legal Assistance Services 2015–2020 that provides funding to states and territory legal aid commissions and community legal centres. This is to ensure that the most vulnerable people in Australia have access to legal services.

We have commenced a review of the partnership as required by Clause 41 of the agreement. The review is a joint effort involving the Commonwealth, state and territory governments. An independent reviewer has been engaged and the review is due for completion by December 2018.

During 2017-18, we administered the Indigenous Legal Assistance Program that funds organisations to deliver culturally appropriate legal assistance services so that Indigenous communities receive the help to overcome legal problems and exercise legal rights. This work involved liaison with seven Indigenous legal assistance providers.

We administered the changeover to the Northern Australian Aboriginal Justice Agency as the sole service provider for Indigenous legal assistance in the Northern Territory. We also coordinated the tabling of the Australian Law Reform Commission final report, Pathways to justice–an inquiry into the incarceration rate of Aboriginal and Torres Strait Islander peoples.

An independent review of the Indigenous Legal Services Program has commenced and is expected to be finalised by December 2018. The outcomes of this review will inform future arrangements for legal assistance services from 1 July 2020.

During 2017-18, we administered legal financial assistance schemes to help people who do not qualify for legal aid and could not otherwise afford to pay for their legal costs. These include:

  • 22 statutory and non-statutory schemes (most include legal costs and disbursements while some are limited to disbursements only)
  • native title respondent funding and native title officers scheme
  • legal financial assistance for royal commissions (legal costs and disbursements associated with witnesses attending an interview or hearing).

During 2017-18, we assessed 756 applications across the various schemes resulting in 503 grants of legal financial assistance. This is a decrease from 1070 applications and 884 grants of legal assistance in 2016-17. The reduction is largely attributable to the completion of the Royal Commission into Institutional Responses to Child Sexual Abuse and the Royal Commission into Protection and Detention of Children in the Northern Territory.

At the start of 2018, we established a legal financial assistance scheme for witnesses attending a hearing or interview with the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. The scheme will run for the life of the Royal Commission.

We also administer funding under the Community Legal Services Program for the provision of legal assistance. In 2017-18, funding was provided for service delivery projects, innovative pilot programs and support activities. During 2017-18, 12 new funding agreements were established and administered alongside existing agreements including initiatives such as the Legal Aid Commission of South Australia's Online Dispute Resolution System project and Legal Aid Western Australia's Blurred Borders project.

We administer the Expensive Commonwealth Criminal Cases Fund (ECCCF) to reimburse legal aid commissions for costs incurred defending clients in serious and high-cost Commonwealth criminal matters. This program ensures that legal aid commissions have resources to defend individuals charged with serious Commonwealth criminal offences. During 2017-18, we managed the successful transition of the ECCCF to the Community Grants Hub within the Department of Social Services. This is part of the whole-of-government approach to streamlining grants administration.

Reforming commercial law, personal property securities and bankruptcy

In consultation with stakeholders, we developed two Bills to reform the Bankruptcy Act 1966. These reforms improve the safeguards for debtors and creditors involved in debt agreements. The Bankruptcy Amendment (Debt Agreement Reform) Bill 2018 improves the operation of debt agreements under the Act. The Bankruptcy Amendment (Enterprise Incentives) Bill 2017 reduces the default period of bankruptcy from three years to one year and is designed to reduce the stigma of bankruptcy.

Progress has occurred in the government response to the Review of the Personal Property Securities Act 2009. The aim is to simplify the Act and the Personal Property Securities Register, complementing the Australian Government's deregulation, innovation and digital transformation agenda. The review improves the personal property securities framework. Simplifying personal property securities law reduces the cost of secured finance and makes it easier for businesses and consumers to use their assets as security.

Other work, personal property securities and bankruptcy

Australia has been an active member of the Hague Conference on Private International Law since 1973. Australia is a party to a number of progressive conventions negotiated under the auspices of the Hague Conference, both in family and civil law. These instruments establish harmonised rules and procedures for cross-border civil matters and are regularly used by Australian and foreign litigants.

We are developing the International Civil Law Bill 2018 to enable Australia to accede to the Hague Convention on Choice of Court Agreements. The convention provides harmonised rules for courts relating to exclusive choice of court agreements in international civil matters (agreements that specify a court in a particular jurisdiction that will hear any dispute arising under the agreement). The convention also provides rules for the recognition and enforcement of judgments that are made pursuant to these agreements. The legislation will create certainty for Australian civil litigants involved in international disputes and will reduce the risk of unnecessary court costs.

We negotiated on the Hague Conference Convention for the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters. Australia will participate in a Diplomatic Conference to finalise the convention in 2019.

These conventions are robust regimes for the recognition and enforcement of foreign judgments. Australians will have greater certainty when it comes to the enforceability of an Australian judgment overseas, for example where assets are located in another country.

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