Dear A/g Assistant Secretary,
Thank you for the opportunity to provide further comments on the Exposure Draft Family Law Amendment Bill (No. 1) 2024: protected confidences following our meeting on Tuesday 23 July.
As discussed at the meeting, National Legal Aid (NLA) is of the view that it is essential to have a better understanding of how the legislative amendments will be implemented in practice when providing comment on the legislation. It is difficult to comment on the draft legislation without the broader context of the details and practicalities of how it will be implemented. For example, there are concerns about the possible effect of the legislation on case management and the cost impacts for parties, particularly regarding the work of Independent Children’s Lawyers. Further, a number of questions in the Consultation Paper are related to the process and implementation of the legislation and cannot be answered without more information.
As such, it is recommended that further consultation with key stakeholders be undertaken on both the legislation and process of implementation once further details of this process have been confirmed. It is also recommended that this consultation occurs prior to a broader circulation of the Exposure Draft.
It is also recommended that the legislation be amended to focus on objection to the disclosure of protected confidence, rather than the application. As currently drafted, the legislation requires the court to consider if a document is a protected confidence, regardless of whether an objection has been raised by a party or not. This is likely to create additional processes and administrative burdens, which should be taken into account when considering the details of how the legislation will be implemented. Similarly, it will be important to understand how ‘harm’ would be determined under the legislation and to ensure that this process does not create additional work for the parties. Finally, consideration should be given to amending the legislation to allow or require the Court to advise parties of a potential PC issue and /or refer them for legal advice in circumstances where one or both are self-represented, as per provisions in existing legislation such as s299 of the NSW Criminal Procedure Act 1986.
With regard to the Exposure Draft and the specific questions raised in the Consultation Paper, it is noted that the draft legislation specifies that protected confidence means information provided in professional context, and that this is to be kept in confidence while the issue of potential harm is considered. It is recommended that the term ‘professional service’ be used instead of defining a ‘health service’ and that ‘health service’ be removed from 102BA(a), and 102BB be removed in its entirety. It is agreed that third parties including litigation guardians should have standing to make an application, in which case they need to be listed in all relevant areas of the legislation. It is also recommended that the definition of protected confidence refer to documents only. Finally, it is agreed that the reference to ‘adducing’ evidence in section 102BC is correct.
Thank you again for the opportunity to comment and we look forward to further consultations on this matter.
Regards,
Nicky Davies
Chair, Family Law Working Group