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Bureaucratic disaster: Fed Govt failed to proclaim changes to Family Law Act for 3 years

I just read this headline on the Australian Divorce Blog: Bureaucratic disaster: Fed Govt failed to proclaim changes to Family Law Act for 3 years. Many people will miss out re de facto cases  but there are no more details. http://australiandivorce.blogspot.com/%20
Does any one know about this? Does it mean that all de facto cases in the Family Law court of Australia since 1 March 2009 are not legally valid as the court has no jurisdiction because the government failed to proclaim the changes to the Act?

If so what happens to the de facto's who lost their property under the new changes to de facto legislation?

Last edit: by BusyBee2009

Court bungle to hit de factos as error throws property settlements into doubt

    by: NICOLA BERKOVIC
    From: The Australian
    February 22, 2012 12:00AM

  
THOUSANDS of Family Court orders relating to de facto couples, including property settlements and maintenance agreements, have been cast into doubt by a major federal government blunder.

The government neglected in 2009 to arrange for the Governor-General to proclaim a start date for legislation that handed power to the Family Court to handle property and maintenance disputes between de facto couples. The mistake, which Attorney-General Nicola Roxon last night labelled an "unfortunate administrative error", means all such property and maintenance orders by the Family Court and Federal Magistrates Court between March 2009 and February 11 this year are now uncertain.

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Can the goverment legally put in retrospective legislation and would that be against the constituion?

Good find Frenzy. Maybe we should find out if they really can put in retrospective legislation and it is legal under the constitution. This property de facto legislation effectively "married" people off against their will. De facto's deliberately choose not to get married so they had a different legal status and different rights and obligations to married couples. Children are looked after the same way as for married couples.

To have their de facto legal status changed to be the same as marriage appears to be against human rights on the right to self determination and status. See article 1 and 2 on International Covenant on civil and political rights
ERROR: A link was posted here (url) but it appears to be a broken link.
http://www2.ohchr.org/english/law/ccpr.htm 

Also de factos living outside of Australian state should not be covered any way as the power on de factos came from states conferring power under section 51(xxxvii) of the constitution http://en.wikipedia.org/wiki/Section_51%28xxxvii%29_of_the_Australian_Constitution. This is unlike marriage which was already in the constitution. Any new federal laws under section 51(xxxvii) can only be applied back to a state. Taking Family law cases as an individual is extremely costly. Is any sort of class action possible?

Section 51 Legislative powers of the Parliament

It does not have de facto in s 51 of the constitution for the Commonwealth to legislate and if the state wishes to refer a state law to the Commonwealth then a conflict has to have occurred between 2 states, and if those 2 states can't agree on a way to solve the problem then they can refer it to the Commonwealth. But both the upper and lower houses of the state parliament must be in a unanimous vote on the issue and then if both houses pass in votes then a referendum is held to the people.  If the vote of the referendum is in favor of referring it to the Commonwealth then the Commonwealth can accept it and start legislating against it but NONE OF THIS EVER HAPPENED, and not only did none of this happen but section 51 never allowed for defacto to be legislated against and once again this would require an amendment to the constitution an extra sub section within s51 which also never happened.

Moderator Note
Irrelevant material relating to US Constitution deleted

First they ignore you, then they laugh at you, then they fight you, then you win.  M K Gandhi

Section 51(xxxvii) other matters

De facto legislation was enacted by the states conferring their power to the commonwealth under section51(xxxvii) of the constitution on matters. Any new federal law created using section 51(xxxvii) can then only be applied back to the state that conferred their power. The attorney generals department put in geographical requirements to the Family Law Act, 90RG, 90SD and 90Sk of the Family Law Act. to create a state nexus so the legislation would be constitutional. However I think the law cannot be applied internationally as it is outside of states territorial limits much like a fishing limit.

Marriage is different and is in the constitution in sections 51(xxi) and 51(xxii). But the moderator is right the judges of the federal and family court do not want to hear any argument on the constitution despite their duty. It is the duty of the court under section 78B of the Judiciary Act 1903 not to proceed until formal notice that the constitution shall be discussed is given to the Attorney Generals department. However in my case Justice Le Poer-Trench said it was all double dutch, (a joke because I live in the Netherlands) to him and just crossed it out of affidavits.

Last edit: by BusyBee2009

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