Second Reading
Resumed from 5 December 2018.
Comments and speeches from various members
HON ALISON XAMON (North Metropolitan) [9.26 pm]: I rise as the lead speaker for the Greens and I indicate that we will support the Child Support (Commonwealth Powers) Bill 2018. I was quite pleased when I saw that this bill had been developed. I have called for this move in the last couple of times that we have adopted the various child support commonwealth laws. As has already been discussed, section 51 of the Australian Constitution sets out a long list of the matters about which the Australian Parliament has the power to make laws. Relevant to this bill, this includes the power to legislate on child support, but only for children who have been born within a legal marriage. The Australian Parliament has so legislated, passing the Child Support (Registration and Collection) Act and the Child Support (Assessment) Act. For children who are born outside a legally recognised marriage, children known as exnuptial children, in Western Australia, the Australian Parliament has the power to legislate only as long as the WA Parliament either refers that matter to it or passes its own law by adopting the commonwealth law after it has been passed. To date, the WA Parliament has chosen to go down the latter path and has been passing its own laws to adopt commonwealth child support laws so that they apply to exnuptial children in WA as well as children born of a marriage. As I have mentioned, I have been party to debating two lots of that type of legislation in this place to date.
As the commonwealth law has been amended repeatedly, WA has repeatedly had to legislate to adopt those laws. I note that WA has never not adopted a commonwealth amendment. But, unfortunately, this means that necessarily there is always a time lag between the commonwealth law changing and the WA Parliament getting the opportunity to pass the laws in order to adopt them. During those time lags, the child support laws are applicable to those WA children who are born within a legal marriage, whereas exnuptial children are effectively operating under different child support laws. That is a problem. It is a problem for families and I think it is also unfair for those children. Apart from treating some WA children differently from other children based solely on the marital status of their parents, it also creates particular complications for blended families who are trying to navigate the child support system, which is complicated enough as it is.
The other Australian states that have been faced with the same problem referred their child support powers for exnuptial children to the commonwealth years ago. New South Wales, Victoria and South Australia did it in 1986; Tasmania in 1987; and Queensland in 1990. It has taken us a long time to get to this point. I recognise that WA, for a lot of good reasons, as has been outlined by the previous speaker, likes to hold on jealously to its right to make its own laws, but this bill finally brings WA in line with what the other states have been doing for decades. I note that the bill is also supported by the Family Law Practitioners Association of Western Australia, which deals with people in this situation all the time.
This bill will adopt the commonwealth child support laws, as they stand, on the date of royal assent, which is when the whole act will come into operation. I note that the very helpful report by the Standing Committee on Uniform Legislation and Statutes Review, which was tabled on 12 March this year, identifies what new commonwealth laws will be adopted. From the point of adoption on, the bill refers power to the commonwealth to legislate on child support for exnuptial Western Australian children. The adoption and referral can, together but not separately, be terminated by proclamation by the WA Governor with the prior approval by resolution of both houses of the Western Australian Parliament. The requirement for parliamentary approval is unique to this state and safeguards parliamentary sovereignty. Termination in the other states is by executive proclamation without parliamentary approval. At paragraph 5.60, the committee report noted that three WA referring statues contain an identical requirement for parliamentary approval of termination. The date for termination in the proclamation cannot be any earlier than 12 months after publication of the proclamation in the Government Gazette. This is to make sure that WA has the time to establish any replacement child support regime for exnuptial children, including any necessary validation of child support–related acts done under the regime that is being terminated. That is a sensible provision. Any terminating proclamation can be revoked, and the process again is proclamation by the Governor, with prior approval by resolution of both houses of the WA Parliament.
The bill relates only to child support, which is termed as “maintenance” for exnuptial children. Unlike the other states, it does not also refer power over other family law matters relating to exnuptial children; WA will be retaining its authority in that regard. The committee report identifies that “maintenance” is not defined and so, in theory, the commonwealth might try to expand its legislative power—for example, to include provision of a home for a child—and thereby encroach on what is normally covered by a residence or custody order. I think it is unlikely that the meaning of “maintenance” in this bill would be interpreted as broad as that in order to cover that. In any case, the committee report goes on to note that even if the commonwealth did legislate in that way, this state could well adopt this change too, in the interest of treating exnuptial WA children the same as other children.
Although finding 1 of the uniform legislation committee report found that the bill derogates from parliamentary sovereignty through its potential to exclude parliamentary oversight, the report identified the safeguards for parliamentary sovereignty and outlined the termination process, which, as noted, necessitates parliamentary approval. It refers to Parliament’s ability to repeal the referral legislation. This has happened before, although in each case the statutes were already out of force. The committee report notes that repealing a current law is a different matter and might create uncertainty about the validity of commonwealth laws already passed under the referral legislation. For that reason, appeal is less preferable than the termination process in the bill. That is finding 3. Another safeguard that the committee identified is challenging in court the validity of any commonwealth law that may be considered to be out of scope. The last safeguard the committee identified is the statutory interpretation of the term “maintenance” in this referring bill as meaning child support only, as already noted.
The Greens have quite easily formed the opinion that on balance, and given the desirability of commonwealth laws applying equally to exnuptial children in Western Australia in a timely way, we agree with the committee that this bill is justifiable and acceptable. It has been unfortunate that to date, even though WA has wanted to retain its own authority in this space, the net result has meant that exnuptial children have been subject to considerable lag. This is a smart move for an area that is rightfully placed within commonwealth jurisdiction as a whole. All children should be treated equally, regardless of the marital status of their parents. With those few notes, and noting that it is important that we try, where appropriate, to maintain the sovereignty of the Western Australian parliamentary process, I am happy to support this legislation.
Comments and speeches from various members
Question put and passed.
Bill read a second time.
Leave granted to proceed forthwith to third reading.
Third Reading
Bill read a third time, on motion by Hon Sue Ellery (Leader of the House), and passed.