Monday, 10 September 2018
Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018; Second Reading
The Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 reflects a change to the Family Law Act which Labor has been calling on the government to make for some time. It's hard to believe that in 2018 family violence survivors are still sometimes required to endure cross-examination conducted by their own abusers. It seems unthinkable, but it happens.
According to an Australian Institute of Family Studies report, published in June 2018, 173 survivors were directly cross-examined by their abusers in family law matters over the course of two years. But that number likely disguises the much larger number of women who, faced with the possibility of direct cross-examination, chose to settle in order to avoid it, often with bad outcomes. It's hard to put into words how horrific an experience it must be to have the person who has inflicted hurt and pain on you question you in front of others about that very experience. It's a tool perpetrators can and have used to inflict fresh pain and trauma on survivors. It should have stopped a long time ago. It's an outrage that it continues.
Let me pause here to note, with some dismay, the fact that this important bill was interrupted by the chaos that engulfed this government in the last sitting week. I was sitting in the chamber, ready to speak on this bill, just before the Leader of the House rose to his feet to suspend parliament because the government had completely lost control. That's the same person, the Leader of the House, who has just tried to claim to the chamber that this government is somehow in control. Instead, what we saw on the Thursday of the last sitting week was a shameful act, an extraordinary act, not just because it was unprecedented that the government should decide that the House should no longer sit because of its own inability to manage its own affairs or to even agree on how to go forward, but because of the delay caused to important bills like the bill that's now before the House. While I'm glad that this bill is being debated and progressed through the House, I could not neglect to mention that this could have happened two weeks ago, that the bill could now be in the Senate and that domestic violence survivors could now be one step closer to being protected, if not for this government's shameful actions in the last sitting fortnight.
Before the 2016 election, Labor pledged to change the laws so that this horrible practice stops happening. We also pledged $43 million in funding for Legal Aid to provide legal representation during hearings to prevent direct cross-examination from being necessary. Our party leader recommitted Labor to that policy on White Ribbon Day in November in the same year. It was then and is now an initiative of which I'm very proud. As the member for Maribyrnong, the Leader of the Opposition, said in his speech two years ago:
This is trial by ordeal. It is an added indignity, a further injustice, inflicted by the abuser who has already done enough damage. Cross-examination in family violence by unrepresented perpetrators is a re-injury. It is new harm on top of the old, we must put a stop to it.
Labor's policy would have compelled judges to consider whether appropriate protection should be put in place during cross-examination of domestic violence survivors and, if available mechanisms were insufficient, to impose a ban. Labor has led the debate on this issue and, thankfully, finally, the government has followed.
The government has produced the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018, which imposes an automatic ban on direct cross-examination of family violence survivors by perpetrators. This automatic ban applies where there is evidence or allegations of family violence between the two parties in a family law matter. The ban will be imposed automatically if certain conditions are met. If there is an allegation of family violence between the two parties and either party has been convicted of or charged with an offence involving violence or threat of violence to the other party, the automatic ban will apply. Similarly, if a family violence order applies to both parties or if an injunction is in place for the personal protection of either party, the automatic ban will apply. Of course, there could still be serious family violence in play, even if none of these conditions are met. In that case, the court still has the discretion to impose a ban if it deems appropriate. If a ban is not imposed, other protections are available for the victims, such as video link or screens during cross-examination. In cases where the ban is imposed, unrepresented parties will be directed by a judge to obtain representation, either through Legal Aid or through private funding. This includes both the survivor and the perpetrator. If either party cannot obtain or refuses to obtain legal representation, no cross-examination can take place. Contained in the measures I've just described are the bones of a good policy, perhaps similar to the one that Labor may have introduced after the 2016 election, had we won that election. But there is one glaring and very, very major omission: additional funding for Legal Aid to make it all work.
Before I discuss this issue in depth, I will address some of the concerns raised through the committee process about other parts of the bill. One concern raised by lawyers is the lack of discretion available to judges, thanks to a ban on cross-examination being automatically triggered if certain circumstances are met. This is a concern that is linked with the issue of insufficient funding for Legal Aid and lack of availability for representation for those who cannot afford a private lawyer. If a party is directed to obtain legal representation but is unable to obtain that representation, then no cross-examination can take place. This could present a significant problem in terms of testing the key facts and evidence of the case and will potentially make it difficult for a finding to be made. This could cause as much of a problem for survivors as for perpetrators if legal representation is unable to be provided. As the Australian Bar Association said in its submission:
Without cross-examination, a Court is left in the unenviable position of determining a dispute without a proper and fulsome testing of the evidence. In short, where there is a dispute of fact but no cross-examination, the court cannot make a finding one way or the other.
This is, indeed, a problem. If a ban on direct cross-examination is imposed but legal representation cannot be obtained in a large number of cases, a serious and systemic problem could eventuate. But this is a problem that has a solution. The missing piece, of course, is funding. It's well known that legal aid services across the country are stretched to their absolute limit. National funding levels are forecast to increase less than five per cent in the four years from 2014-15 to 2019-20. That is barely enough to keep up with demand.
Wherever I go around the country, I always make an effort to visit legal aid commissions and community legal centres. Let me tell you: there is nothing left in the tank. National Legal Aid gave the following evidence at the inquiry into this the bill:
If new funding is not made available to support the scheme, legal aid commissions would be unable to provide legal representation outside existing legal aid funding. Legal aid commissions operate within an already stretched funding regime and strict guidelines that prioritise those in our community that are the most vulnerable and in need of assistance.
The government appears to believe that the passage of this bill would not result in a significant increase in demand for legal aid services, and quotes the Australian Institute of Family Studies figure that only 173 survivors were directly cross-examined in two years—which, of course, is far too many. But if a ban on direct cross-examination were put in place, plenty more survivors would be willing to proceed with their cases, where previously they would have settled. It is likely that the demand for legal aid services would be significant.
When Labor modelled the policy that we took to the 2016 election, for example, we assumed that as many as 658 cases of potential direct cross-examination could arise where legal aid services would be required in any year. It is actually anyone's guess. There is simply no way the measures in this bill can be properly implemented without additional funding. It would be a shell of a policy and a show of good intentions, but completely ineffective. If no additional funding is granted by the government, the most likely outcome is that unrepresented litigants who are directed to obtain representation from legal aid could be turned away. Labor recognised this reality and pledged $43 million in additional funding for legal aid so that we could make this change work.
There is another consideration to keep in mind. Thanks to the failure to adequately fund legal aid, eligibility requirements are incredibly strict, and many litigants are turned away. However, many of these people, similarly, cannot afford a private lawyer. They fall between the gaps. As Rape and Domestic Violence Services Australia said in their submission to the inquiry:
… we note that women who have experienced family violence often fall into the "missing middle"—the gap between those who are eligible for legal aid and those who can afford to pay a private lawyer.
So simply directing unrepresented litigants to go to legal aid or obtain private legal representation is not as simple as it looks. Labor made clear in our funding pledge that the additional money would go into a dedicated fund for legal aid, which would operate outside normal eligibility requirements so that an unrepresented litigant who could not afford a private lawyer would still be guaranteed representation. So not only has the government failed to announce adequate additional funding; it has also failed to address the problem of access. When this additional funding is announced—we hope it will be imminently—this is an issue that the government must take into account.
It's not just Labor calling for additional funding in order to make this reform work; it's the government's own senators. The Legal and Constitutional Affairs Legislation Committee, chaired by government senator Ian Macdonald, produced a bipartisan report with complete agreement on its final recommendations. This is what the committee noted:
The committee believes there should be a commitment to additional funding for Legal Aid before the bill is put to a vote in the Senate, including the amount, timeline for distribution and method of distribution; and in any additional funding for Legal Aid that is announced, the government make clear the eligibility of litigants who do not meet regular eligibility requirements but could not otherwise afford a private lawyer.
The committee went on to make two recommendations. Recommendation 1 was this:
The committee recommends that details regarding the funding of the measures contained in the bill be made public prior to the commencement of debate on the bill in the Senate.
Recommendation 2 was, 'The committee recommends that the bill be passed, subject to Recommendation 1.' There you have it: the government's own senators calling out the Attorney-General for not committing to the funding that would make this reform work. I thank the government's senators on that committee—and, of course, the other senators as well—and particularly the chair of the committee, Ian Macdonald, for working with Labor on achieving that sensible outcome. This is maybe the only time that Senator Ian Macdonald has received praise from our side of the parliament! But, on this occasion, Senator Ian Macdonald deserves praise.
Here we are debating the bill in the House, and the clock is ticking for the government to make its announcement. If the government is to adhere to the recommendation of its own senators in announcing details of additional funding for legal aid before the bill is debated in the Senate, it does not have much time. I sincerely hope that real progress is being made towards the outcome, but my fear is that the Attorney-General and his colleagues may be a little distracted at present with their own infighting. This is the worst thing about the kind of chaos that is engulfing the government. The focus of those opposite is only on themselves, not on the Australian people, who they are meant to be serving. Domestic violence survivors are people who deserve our attention. The government cannot look away from its obligation to help. Ignoring the calls for appropriate funding for legal aid to make this cross-examination ban effective in practice would be the government turning its back on these survivors.
Last week, the opposition leader and deputy leader wrote to the Prime Minister, urging him to step in and act on the funding that is missing from the bill that we are currently debating. I'll read a few lines from that letter:
… as a matter of urgency, we are asking you—
The current Prime Minister—
and the Attorney-General to provide a guarantee of funding before this bill is put to the Senate for a vote. This is fundamental to making the reform worthwhile. We have often attended events together where we've both spoken of the need for parliament to do more to eliminate the scourge of family violence from our national life and to deliver better services and resources for survivors and their families. It's a policy area we all care deeply about. By allocating a small sum of money alongside an overdue reform, we have the opportunity to make a difference as soon as parliament resumes. So let's get it done.
Unsurprisingly, we are yet to receive a response. Who knows when we might receive a response or who we might even receive it from? The Prime Minister may be a completely different person this time tomorrow. Perhaps we'll never receive a response. This is a government that is completely engulfed in crisis, with 10 frontbenchers straining to dump the Prime Minister and the government completely incapable of making a decision. There will be many Australians who will suffer while the government is focused on itself instead of on them. I sincerely hope that domestic violence survivors are not among the number of groups who will be forgotten by this government. That would indeed be a tragedy.
Labor will not stand in the way of this bill passing the House today. That is because we believe in the important principle of stopping the direct cross-examination of domestic violence survivors, and we will not delay this reform any longer. But I urge the government in the strongest possible terms: do not forget the most important ingredient required to make this reform work—funding. You simply must announce how much additional funding you will deliver legal aid before this bill is debated in the Senate; otherwise you are asking the parliament to pass a law without a guarantee that it can be implemented in practice. That is crazy and ultimately hurtful to the people the bill is aiming to protect—domestic violence survivors. Amid this chaos, I call on the government to step up and show us that you have not lost the ability to make decisions in the best interests of this nation; guarantee the funding now. I do commend this bill to the House, but I also move:
That all words after "That" be omitted with a view to substituting the following words:
"whilst not declining to give the bill a second reading, the House calls on the Government to provide adequate funding for Legal Aid to ensure sufficient access to legal representation in order to facilitate a ban on direct cross-examination of family violence survivors in court"
The original question was that this bill be now read a second time. To this, the honourable member for Isaacs has moved as an amendment that all words after 'That' be omitted with a view to substituting other words. If it suits the House, I will state the question in the form that the amendment be agreed to. The question now is that the amendment be agreed to. I have taken the view that the deferred division should not be proceeded with until the member speaking at 12 noon had completed his speech and so I did not interrupt the member. The debate is adjourned and the resumption of the debate will be made an order of the day for a later hour.