Senate debates

Wednesday, 5 December 2018

Bills

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

11:45 am

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | Hansard source

I rise to speak on the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018. This bill amends the Family Law Act 1975 to provide protections for victims of family violence during cross-examination in family law proceedings.

Direct cross-examination is where one party asks questions of a witness directly, rather than having questions asked by a lawyer. These circumstances usually occur where one of the parties is self-represented. In this particular context, one of those circumstances could be the cross-examination of family violence survivors by people who are alleged to have been their abusers. There is no doubt that that has the capacity to inflict significant extra pain and trauma on survivors of family violence and to reopen wounds that may have been healing over.

So it is important that legislative provisions in this country do everything that they can to protect survivors of family violence from further and, particularly, unnecessary extra pain and trauma. But it is also important that we get the balance right and do everything we can to provide procedural fairness for everyone who is caught up in our legal system, including our Family Court system. This bill proposes a ban on cross-examination in certain circumstances, on direct cross-examination, and that when that ban applies, cross-examination must be conducted by a legal representative.

The question of how this legal representation will work has been the subject of some concern in submissions to the Senate inquiry into the bill. We have seen submissions from various groups and organisations which have expressed some concerns about the balance struck in this bill. I want to refer senators particularly to the submission from the Law Council of Australia, where they observed that proceedings involving direct cross-examinations between perpetrators and victims at trial, whilst raising significant concerns, are of limited number in the family law system. Their submission also noted that there are already significant legislative tools to prevent victims from improper exposure. The Law Council also explained that the right to cross-examine another party is an essential part of any adversarial system of justice, and for that reason it had concerns about the removal of that right.

The Law Council also submitted concerns around what it regarded as the lack of clarity regarding the proposed model for participation of a lawyer to perform the cross-examination; the failure by government to confirm that extra funding would be provided to legal aid commissions to enable them to perform this vital role of cross-examination; the lack of clarity regarding the guidelines that would be applied by legal aid commissions to people who cannot afford a private lawyer and who seek the appointment of a legal aid lawyer; and the uncertainty about what is to occur if a party cannot afford a private lawyer and is not eligible for legal aid. I think it would be reasonable to expect the government to respond to those concerns.

The government has acknowledged the issue of extra funding for legal aid commissions, and that is absolutely critical to ensuring that this legislation actually works on the ground in our family law system. The Australian Greens share the scepticism outlined by Senator Polley, the previous speaker, that the government's commitments to date are enough to ensure that this system is going to work well, properly and fairly for all parties concerned. We urge the government to revisit its current level of commitments to ensure that, in fact, the money is there for legal aid commissions to provide this essential service to ensure that the interests of all parties in our family law system are delivered.

Importantly, parties will be able to engage their own legal representation. It is where a party is unable to obtain private legal representation that they will be able to seek representation through legal aid commissions. I would be particularly interested, Minister Reynolds, in a response from you about the circumstance where someone is ineligible to receive legal assistance from Legal Aid and yet maintains a lack of capacity to employ their own counsel, and whether that matter may be addressed in the guidelines that we hope will be developed by legal aid commissions in this area. It's worth pointing out that the Parliamentary Joint Committee on Human Rights reported that it considers that the bill does not raise human rights concerns.

We also support the two-year review that is included in this legislation. When something like this, which does fundamentally change the way some cases will be dealt with by our family law system, is initiated, it is important that, after an appropriate period, a review is conducted to ensure that the legislation is delivering as intended and that there have not been unintended consequences such as, for example, a reduction in procedural fairness in our Family Court system. In regard to funding increases for legal aid, I can't let the opportunity go by without once again placing on the record, on behalf of the Australian Greens, our community legal sector and the important role that it plays in the provision of legal assistance to so many Australian people and organisations. I urge the government to more adequately fund that sector.

Although this is undoubtedly a difficult issue, and one where we need to do everything we can to ensure that an acceptable balance is reached between protecting the rights of those who have suffered family violence and ensuring that procedural fairness is maintained in Family Court proceedings to the greatest degree possible, we will support this bill through the Senate today.

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