If I were Attorney-General, I would legislate to incorporate international human rights treaties such as the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child and the like into domestic law. This would be preferable to legislating for a Bill of Rights and would provide an appropriate lead to the eventual incorporation of an Australian Charter of Rights into the Constitution. Another major area that I would reform is the law relating to children and families. I would seek the consent of the States and Territories to refer their child protection powers and criminal jurisdiction over offences committed by or against children. If the States and Territories refused to co-operate in the reference of powers, I would rely upon the external affairs power incorporating the Convention on the Rights of the Child to implement national legislation covering the whole of these areas.
The legislation would provide for a unified national Family and Children’s Court. The Court would consist of three tiers, an appellate division, a general trial division and a summary division. The new Court would incorporate the existing Family and Federal Magistrates’ Court, which would be strengthened by appropriate appointments from State and Territory jurisdictions.
All judicial officers would be required to satisfy criteria similar to those set out in the Family Law Act: that by reason of training, experience and personality, the person is a suitable person to deal with matters of family and children’s law.
The selection of judges and magistrates would be more transparent, with positions being advertised and appointments being recommended by a neutral committee.
The method of exercising family and child protection jurisdiction would closely resemble the less adversarial jurisdiction of the present Family Court and I would also develop a less adversarial jurisdiction in juvenile criminal cases while protecting existing rights to due process and a fair trial.
The Court’s ability to deal with issues of sexual and other abuse of children and family violence would be strengthened by the provision enabling it to exercise criminal jurisdiction in relation to offences against children.
Geographically, the Court would be divided for administrative purposes into regions that may, but need not necessarily, reflect existing State and Territory boundaries.
The Court would be fully staffed with appropriate professionals including legally trained registrars, psychiatrists, psychologists and social workers, including Indigenous people. I would also legislate to bring existing family mediation centres into the Court. I can see little point in preserving these institutions which are directed only at mediation of disputes relating to children in private family law proceedings and would be better integrated into a court that takes an overall view of family problems.
I would see the new Court as providing a model for an eventual Australian judicial system and the reformation of the adversary system as it operates in general law.
The focus of the Court would be very much upon children and their rights and needs, rather than upon the ‘rights’ of parents. Therefore Howard Government changes made under pressure from men’s groups including presumptions of equal parenting responsibility, and the need for the court to consider equal division of time between parents, would be repealed.
I would legislate for the appointment of an independent Children’s Commissioner reporting to Parliament, with responsibility to monitor the system, including the performance of the new Court. All legislation affecting children would be referred to the Commissioner for report before being passed.
I would urge the PM to appoint a Minister for Children in charge of a Department of Children.
I would repeal the 2004 amendments to the Marriage Act defining marriage as a union between a man and a woman and reform the law to enable marriages between gay and lesbian and transsexual and intersex people.
In accordance with the recommendations of the Australian Law Reform Commission, I would legislate to ensure that underage Indigenous girls forced into traditional marriage and their children would not suffer disadvantage as a result. I would similarly look at improving the lot of Islamic women and their children in second and subsequent marriages, whether married under the Marriage Act or pursuant to Islamic law.
I would repeal the Intervention legislation in the Northern Territory and the provisions abrogating the Racial Discrimination Act. In its place, I would provide proper police services to remote communities, including accelerated recruitment of Indigenous police and the involvement of many more Indigenous people in the Court system as judicial and administrative officers and as counsellors, mediators and social workers.
Finally, I would legislate to preserve Indigenous customary law in so far as it is not inconsistent with human rights principles and for example, recognise practices such as Torres Strait islander traditional adoptions. I would give legislative effect to the UN Declaration on the Rights of Indigenous Peoples.
The Hon Alastair Nicholson AO RFD QC is the Former Chief Justice of the Family Court of Australia. He is an Honorary Professorial Fellow at the Department of Criminology, University of Melbourne.