Cathy O'Toole (Herbert, Australian Labor Party) Share this | Hansard source

Labor has been calling for the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 for some two years. The ongoing cross-examination of domestic violence survivors by their perpetrators is a shameful practice which has gone on for far too long. This is a demeaning, stressful and shocking practice that must be stopped as soon as possible. Subjecting victims of domestic violence to hostile cross-examination by their perpetrators in court causes people to relive devastating experiences and creates fresh trauma. This often makes victims reluctant to take their case to court. This is completely unacceptable, so many women say that they have either settled for imperfect outcomes to avoid cross-examination by their perpetrators or they have gone through the experience only to suffer horrible consequences.

My sister is a family law barrister, and as such I am very well aware of the stress, anxiety and re-victimisation that occurs when an alleged abuser cross-examines their alleged victim. Although my sister is a family law barrister, I am not a lawyer. I have never been through or experienced the family law court system myself. However, in preparation for debates like this one this evening, I wanted to be educated and aware of the issues on the ground. At the invitation of Judge Coker, I spent a full day listening to interim hearings regarding matters before the family law court. I witnessed a very professional and caring approach to what is, in fact, an extremely complex and distressing environment. I was surprised at the number of people who present to the court unrepresented, and, as such, this takes more of the judge's and the court's time. I witnessed a very effective court process where procedural fairness was delivered for all parties. I also witnessed a strong focus on the needs of children who are powerless and sadly caught up in very complicated cases.

But I also witnessed how incredibly underfunded and under resourced the family law courts are. Our family law court in Queensland is underfunded as people are waiting lengthy periods to have their cases heard in the court. Legal Aid and community legal centres are also stretched to their maximum capacity and are in desperate need of significant additional funding. Although I wholeheartedly support this bill, when workloads are significantly increased and the system is already underfunded, more funding must be allocated not only for the courts, but also extra funding for Legal Aid, community legal centres and Aboriginal legal centres. This is supported by the fact that the Australian Law Reform Commission report has identified a funding shortfall for Legal Aid to the tune of $400 million.

Labor is ahead of the government on this vital issue of funding. Labor committed to this important change ahead of the 2016 election and recommitted in November 2016 on White Ribbon Day. As part of our policy pledge, Labor is committed to amending the Family Law Act 1975 to compel a judge, when domestic violence is alleged, to consider whether any vulnerable witness should be protected during court proceedings under a range of mechanisms already available under the Family Law Act 1975 using existing resources and facilities so that, if the judge believes that the available mechanisms under the Family Law Act 1975 are insufficient to protect the vulnerable witness, the judge is empowered to direct all unrepresented litigants in the matter to be represented by Legal Aid. The commitment included $43 million for Legal Aid in order to facilitate the representation of unrepresented litigants.

Labor made that funding commitment because we listened to stakeholders, in particular Legal Aid, who clearly stated that this change could not be made on current funding levels. The government, by contrast, is refusing to commit to any additional funding for Legal Aid as it seeks to pass this bill through the parliament. In fact, signals have been given through the media that indicate that the Attorney-General, Christian Porter, has no intention of giving additional funding to Legal Aid. The government has already thrown Legal Aid and community legal centres into crisis with its cruel funding cuts, and now the government wants to add additional workload to Legal Aid and community legal centres without any extra funding on top of the previous cuts. The government has not explained just how it expects Legal Aid to facilitate this very important change if it is not given any additional funding to take on the extra unrepresented litigants. If the government does plan to announce additional funding, why can't that happen now? Why can't the government at least give Legal Aid a pledge that additional funding will be forthcoming?

These concerns are serious, and I want to reiterate the concerns expressed by a number of legal organisations regarding the need for extra funding for Legal Aid, community legal centres and Aboriginal legal centres. A number of submitters raised concerns regarding the funding arrangements to support the bill's proposed model. These submitters noted that the bill requires a party to seek private legal representation or a grant under Legal Aid in order to cross-examine a witness if the mandatory protections are found to apply. This may significantly increase demand for Legal Aid representation in addition to other legal services such as community legal services or Aboriginal legal services. Some submitters argued that National Legal Aid and other community legal services operate on tight budgets and may not be able to absorb the cost of the bill's proposed model. Rape and Domestic Violence Services Australia stated in its submission:

The Bill envisages that legal aid commissions will provide assistance where parties are prohibited from personal cross-examination but cannot afford to access private representation. However, R&DVSA are concerned that legal aid commissions are not equipped to respond to even the current level of demand for legal assistance in relation to family violence.

Several witnesses recommended that the Australian government establish a separate funding stream for the bill's measures. National Legal Aid, for example, recommended the creation of a dedicated Commonwealth family law and family violence fund which would support the bill's measures and assist in funding legal assistance centres. Rape and Domestic Violence Services Australia also supported the creation of a separate funding stream for the measures contained in the bill. Rape and Domestic Violence Services Australia believes that additional dedicated funding to legal aid commissions is vital to ensure that legal assistance is accessible to all parties who are prohibited from personal cross-examination, especially women who have experienced family violence. Moreover, a dedicated funding stream will ensure this initiative does not detract from other vital services provided by legal aid commissions to people who have experienced sexual, family or domestic violence. Women's Legal Services Australia also stated in its submission that, without a separate funding stream for the bill's measures, legal aid commissions, community legal centres and other specialised legal services would be unable to cope with the demand to provide lawyers to conduct cross-examination without redirecting resources from other areas of major need.

Other submitters put the view that the bill's provisions may create an added burden on court resources and cause delays in proceedings. The Law Council of Australia noted that trials would likely be delayed due to the bill's proposed requirement that parties seek legal representation in certain circumstances. It stated:

The Law Council struggles to see how the family courts can oversee parties acquiring legal representation without, at least, one more extra procedural for each case before trial, adding to the costs of any represented litigant and delays. 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.

The Law Council further observed that the bill did not provide additional funding for the family courts to enable them to implement the bill.

The Council of Single Mothers and their Children also highlighted this issue, stating that the courts would require additional resources to implement the protections proposed by the bill, including increased use of video and audio technology, separate safe spaces for parties to enter and wait in the courts and alternative venues. The Law Council also stated that the bill was likely to prompt parties who have experienced family violence who may previously have avoided court action for fear of direct cross-examination to proceed with their cases. This could subsequently cause further delays to court listings and add to the workload of the family courts. Clearly these calls echo the concerns of Labor. The law profession is making their case very clearly: funding is needed, and it's needed urgently.

I want to acknowledge the work and dedication of my colleague shadow Attorney-General, Mark Dreyfus, whose continual lobbying and hard work has led Labor to put real commitment and real funding on the table for legal organisations. If people in this place are committed to real change in domestic and family violence, additional funding must be put on the table. Labor is committed to an Australia free from domestic and family violence. I call on the government to match Labor's funding of $43 million for legal aid. Addressing the legal issues associated with family and domestic violence is essential in reducing the fear, anxiety and stress associated with complex family law cases. Labor is clearly focused on the welfare of families, especially children, which is evident in the fact that Labor has committed the additional funding to the sector.

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