BILLS; Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018; Second Reading

September 10, 2018

Mr HAYES (FowlerChief Opposition Whip) (17:45): I commend the member for Mackellar. I agree with much of what he had to say. The only thing where we would depart is on the fact that, when you bring a piece of legislation of this substance into this House, you should make sure it's funded; otherwise, it becomes inoperative as a legal instrument.

I rise in this contribution to speak on the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 because I want to make it clear, firstly, that we support the bill, but we do so because this has been Labor's policy for some time. As a matter of fact, the reforms captured in this bill are the very matters that were discussed in this House over two years ago. They are reforms that Labor committed to in 2016 in the lead-up to that election. We recommitted to them in 2019, and we think this bill is sound in what it does—that is, to impose an outright ban on the direct cross-examination of both victims and perpetrators in family law hearings where there is evidence or allegations of domestic or family violence.

This legal prohibition will be administered through the processes in the courts. The court, through the judicial officer, will make a direction to the party to engage a lawyer, either privately or through legal aid, for the purposes of cross-examining, where either party is unrepresented. We think that's a good thing. We support that. The Queensland Law Society—of which you are no doubt well aware, Mr Deputy Speaker Vasta—says this about what's contained in this bill:

It is well recognised that direct cross-examination of victims of family violence not only perpetuates the abuse but can result in the court receiving incomplete or poor quality evidence.

That's from our legal colleagues in Queensland. I don't think that's rocket science. I think that is precisely the case. If we want to have good-quality evidence, we need someone to be unintimidated when they're presenting evidence to the court.

As are many in this chamber, I am also a White Ribbon ambassador. I think it's good that most of us take an interest particularly in matters of domestic and family violence, and this bill is no different. It's on that basis that I say it is an absolutely shameful practice where we've allowed within our judicial systems for victims of domestic violence to be cross-examined by the actual perpetrators of that violence. We've heard from so many women who say that they have settled for less than adequate outcomes solely to avoid cross-examination by the perpetrators of their violence. Other women have said that they've gone through the experience and it's had horrible consequences.

All of us sitting in this chamber would have to say that that's an absolutely woeful practice that's been allowed to continue. Subjecting victims to hostile questioning in court by the perpetrators of their domestic violence inflicts a new and fresh trauma and often makes victims reluctant, quite frankly, to take their cases through the court process, so it would appear that the aggressor becomes the victor in those situations. It perpetuates a cycle of violence by reasserting the perpetrator's power over the victim, albeit on this occasion through the courtroom.

When we on this side first introduced the policy that is now the subject of this bill, we actually made it with a tag—the tag being that we committed $43 million to Legal Aid in order to facilitate the representation of litigants. We made the funding commitment because we listened to the stakeholders. Legal Aid told us that this change could not be possible on the current funding levels. In highlighting the importance of legal representation in matters of family violence and the need for adequate funding, the Australian Human Rights Commission emphasised that this could not be accommodated under the existing Legal Aid funding levels. So neither side of parliament can be excused for making any mistake about what is in this bill and the fact that there are costs associated with it.

In essence, we are seeing now a bill come through the parliament without proper resources to support its implementation. In its current form, it lacks the necessary teeth to ensure the desired outcome. There has been no additional funding for Legal Aid proposed in this bill—and, for that matter, none was set aside in the last budget. All we have is a statement that says, 'the government is working with the National Legal Aid Office to determine impacts that are expected to result from the measures in this bill'. However, on 28 June this year, it was reported that the Attorney-General said:

… the government was "working closely" with National Legal Aid on implementing the new law.

However, he said there would be no extra legal aid funding as a result of the legislative change, and those prevented from cross-examining their ex-partner would only be able to access legal aid if they met its usual rules for qualifying.

That is pretty simple. There is no intention to put any money aside to support the implementation of this bill. So, while it's pleasing that the government have finally decided to move on preventing the cross-examining of victims of domestic violence by their perpetrators, they have not matched Labor's commitment to properly fund this scheme. As far as I'm concerned, with such critical reform like this, there can only be a true commitment to ban the horrible practice when we have a very clear and strong intention as to how we should fund the scheme in the first place. Without proper funding, this bill is, in effect, holding the general practice now to ransom.

Statistics tell us that there are still many, many cases where direct cross-examination of family violence survivors remains prevalent. A study by the Australian Institute of Family Studies published in June this year, found that there were 173 direct cases of cross-examination in family law matters over the course of the last two years alone. But, as the Women's Legal Services Australia points out, this does not include the many cases which were settled before they even went to court. The National Legal Aid has voiced its concern about the funding aspects of this bill and it has given evidence at a hearing of the Senate committee, noting the difficulty the service has in responding to a direction by the court without additional funding.

Passing this legislation without guarantees of additional funding could create a crisis situation in the family law system. We could see a situation in which Legal Aid is unable to fulfil requests for representation when made by a judge. This could result in the denial of due process and the court being unable to test the facts or make the necessary findings. The Law Council of Australia has explored this issue in detail, warning that it could have many unintended consequences, particularly in relation to the delivery of justice. In discussing the ramifications of this bill, the Law Council went on to say:

It is foreseeable that the Bill will have the consequence of trials being adjourned or trial listings being vacated so that legal representation can be obtained. The new provisions may also give parties the opportunity to delay for strategic reasons.

In other words, unless this is funded and the victim is able to have representation in terms of cross-examination by the perpetrator of the violence, this could inordinately delay those court proceedings, and delaying that is justice denied.

We have also been issued a number of comments from stakeholders—principally the Law Council of Australia. It goes on to say that, in the event that a legal aid commission may not be able to redirect funding away from other essential services, to comply with a judge's direction Legal Aid may have to take money that otherwise would have been used in other cases funded by the legal aid commission. Quite frankly, this is inefficient, ineffective and certainly mitigates against the broad thrust of this piece of legislation that it before us, the intent of which, as I said at the outset, is a good thing. It will pass the parliament, but, because of these concerns that we have, I do support the second reading amendment made by the shadow Attorney-General.

We do think that the government should be acting quickly to explain how it expects Legal Aid to facilitate these important reforms if they are not going to be funded. The government must give certainty on how it intends to meet the funding questions, and it must be done before this bill not only passes the parliament but comes close to being enacted, because it would be absolutely embarrassing, for all of us that have the honour of sitting in this chamber, to think that we've passed a piece of legislation that had no teeth, because there will be consequences which will be borne mainly by women, who in the main are the victims of domestic violence, seeking redress and justice through our judicial system. It is the absolute least this government should be doing for survivors of abuse, for those families, for the women and children and for those who have been so active in calling for reform in this area, that we show not only that we care but that we will do everything we can to mitigate the ongoing suffering in this regard.

Labor will always remain committed to be an Australia free from domestic and family violence. We think this is a measure going to that and we support it on that basis, but we ask the government to consider the amendment of the shadow Attorney-General. We need these measures appropriately and properly funded.