Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Bill 2019

By Matt Keogh MP

09 November 2020

We're here today to debate, finally, the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Bill 2019. What does this bill do? This bill gives effect to a referral of power from Western Australia to the Commonwealth, in respect of superannuation matters in family law proceedings for separating de facto couples in Western Australia. It also extends federal bankruptcy jurisdiction to the Family Court of Western Australia to hear bankruptcy proceedings concurrently with family law proceedings concerning de facto couples. It provides for some transitional arrangements and it makes consequential amendments to 21 other acts.

Why? Because Western Australia is blessed to have a separate Family Court system to the rest of the Commonwealth. I say 'blessed' because, as the shadow Attorney-General alluded to, there have been many reviews of the Family Court and family law system in this country, over many decades. Interestingly, the most substantial recommendation that has been made for reform is not what this government has placed on the table by abolishing a specialist Family Court; the best reform put forward to date has been to remodel the Commonwealth Family Court system on the Western Australian Family Court system.

But to come back to the particulars of this legislation, it has had a long and tortured history to get to the point where we can speak on it today. The Family Law Legislation Amendment (Superannuation) Act 2001 provided for superannuation splitting for married couples, and that applied in Western Australia as well. Then the states referred powers to the Commonwealth for de facto property maintenance and superannuation in family law matters from 2003 onwards. The Family Law Amendment Act 2005 amended the Bankruptcy Act to confer on the Family Court of Western Australia the same jurisdiction in bankruptcy—which related, again, to parties to a marriage—that had been conferred on the Family Court of Australia by the Bankruptcy and Family Law Legislation Amendment Act of that same year.

Then we come to 2006, when the Western Australian parliament referred power to the Commonwealth to allow it to provide for the separation of superannuation in relation to de facto couples—both heterosexual de facto couples and homosexual de facto couples. That was done despite the then government's position that it would not support the use of the power in so far as it concerned homosexual de facto couples. This is a great illustration of how Western Australian family law was ahead of the game of the Commonwealth when it came to supporting homosexual couples who were separating, and it took a long time for the Commonwealth to catch up. Then we had the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008. That applied to both heterosexual and homosexual couples, but it didn't pick up the Western Australian provisions and provide that power to Western Australia. So, again, we had Western Australia missing out.

Finally, from 2008 through to this 2019 bill, we have legislation that was foreshadowed by the Commonwealth Attorney-General in March 2018, nearly 13 years after the Western Australian parliament made its referral of power to this parliament. This bill was then introduced on 27 November last year. That's 20 months, or over 1½ years, after the federal Attorney-General foreshadowed the legislation. It was referred to a committee in December of last year. The committee reported in March of this year. That's only a three-month inquiry. The committee kept its work short because it understood the urgency of this work. And now, on 9 November 2020, eight months after that committee reported, a total of 14 years after the original referral of power and 12 years after the Commonwealth dealt with this issue for all other homosexual de facto couples in the country except Western Australia, we finally come to the point where we are debating this legislation in this House.

The explanatory memorandum to this legislation says that the measures in this bill are machinery in nature and will have no more than minor regulatory impacts, that the measures in the bill will address an increasing inequality faced by de facto couples in Western Australia and that the bill promotes human rights. I will just highlight the distinction here between a bill that is said to be machinery in nature and legislation that will deal with an inequity and is about promoting human rights. The core there is that this parliament, until this point, has actively discriminated against homosexual couples in de facto relationships in Western Australia. This is not machinery in nature. This is real-world stuff for real couples who have had to use our family court system, and it is a disgraceful situation. It is so disgraceful that, during my time as a member of the executive of the Law Society of Western Australia, and, then, as President of the Law Society of Western Australia, time and time again I and the society raised this inequity and raised this issue with Commonwealth attorneys-general, both Liberal and Labor, waiting and trying to push for this reform to happen.

So I am now very proud to be able to stand as a member in this place and see this law that will provide equality for Western Australians in accessing the family law system now come through this House. I thank the federal government for their work with the Western Australia government. The new Attorney-General in Western Australia, John Quigley, reagitated this with the current federal Attorney-General—who, I might point out, was also a Western Australian Attorney-General and never pushed this matter then. I thank the government for bringing this forward, but I also ask that they don't let this bill languish in the other place for as long as they have let it languish in this place. It is important that this bill actually gets passed and that it gets passed quickly, because 14 years is way too long and we cannot let this go for any longer. It is imperative not only that this bill is passed but that it is now passed quickly. I commend the bill.