Monday, 13 August 2018
Family Law Amendment (Family Violence and Other Measures) Bill 2017; Second Reading
I rise to put on the record Labor's position with regard to the Family Law Amendment (Family Violence and Other Measures) Bill 2017. Family violence continues to be a scourge on Australian society. Politicians on all sides in this place must never lose focus on addressing its root causes and aiming to eliminate it altogether from Australian homes. A damning report issued by the Australian Institute of Health and Welfare in February 2018 sent the strong message that we are not doing enough. That report found that, on average, one woman a week and one man a month were killed by a current or former partner. It found that intimate partner violence was the single greatest health risk factor for women aged 25 to 44, and it found that Indigenous women are more than 32 times more likely to be hospitalised due to family violence than their non-Indigenous sisters.
With those sobering statistics in mind, Labor welcomes the intent of this bill, which aims to make a number of changes to how the family law system operates in this country in relation to family violence. Its main aim is to simplify the jurisdictions in which family matters can be heard and dealt with. To summarise its main provisions, the bill would expand the powers of some state and territory courts, such as children's courts, so that those courts gain some family law parenting jurisdiction; increase the property value threshold under which the state and territory courts can hear contested family law property matters without both parties' consent; allow for short-term judgements in interim matters before the state and territory courts; remove the 21-day time limit which applies to a family law order that is revived, varied or suspended by a state or territory court when making an interim family violence order; strengthen the power of the family law courts to summarily dismiss unmeritorious cases and vexatious claims; remove the requirement that a court must explain certain matters to a child when that explanation would not be in the child's best interests; and remove vastly outdated wording in the act that suggests that conjugal rights and an obligation to perform marital services still exists in Australian law.
The original bill also contained a measure that would criminalise the breach of personal protection injunctions, which the government has excised from this bill following negotiations with Labor. Let me take some time to explain why this change was made. Labor supports taking a tough approach to the prevention of domestic violence. Making sure injunctions and intervention orders are properly enforced is part of that. So Labor supports, in principle, the criminalising of breaches of PPIs. The system at present, where victims must bring a civil action in the family law courts to enforce the civil penalty for a breach, puts too much onus on victims to be the ones upholding the integrity of the system. That's not fair, and it's not a fair responsibility for traumatised and often fearful people to have to take on that burden.
However, the proposal for criminalisation contained in the government's bill contained some serious flaws. Namely, criminal penalties would have applied to breaches of PPIs that were already in place. This added a retrospective element to the bill, which was unacceptable to Labor. As a rule, parliaments should never pass retrospective laws. Our citizens should know the terms and consequences of our laws before they make decisions. It is unfair, unjust and undemocratic to change these terms and consequences later. In this case, the terms of existing PPIs, which are often reached by agreement and negotiation between the two parties, would have changed after they were made. This is unacceptable. Labor believes it would be an abrogation of the rights of both parties to consensual PPIs if criminal liability were to retrospectively apply to a breach. However, this was not the only problem with this particular measure. The new criminal offence for the breach of a PPI would be a Commonwealth criminal offence. But the whole idea behind the provision is to enable state and territory police to enforce the orders. This is a basic problem. As Tasmania Police said during the Senate committee hearings:
For your information, state and territory police—this may not be something of which the committee is aware—do not routinely enforce the Commonwealth criminal law.
Therefore, the very problem which this measure is trying to fix—enforcement of breaches—may be unchanged due to the difficulties inherent in asking state and territory police to enforce Commonwealth law. The Attorney-General's Department acknowledged this was a problem to which it had not yet found a solution, telling the Senate committee that:
… the practical implementation issues with the enforcement of criminalisation of personal protection injunctions need to be worked through.
The parliament cannot pass a law that the government has not yet worked out how to implement effectively. It's pretty simple.
The other consideration is the major Australian Law Reform Commission report into the Family Law Act and the family law system, which is due in March next year. This report will inevitably address how family violence matters are dealt with through the family law system, including measures like PPIs. We in Labor have called for the government to wait until that report is published to consider how best to make the significant change of criminalising the breaching of PPIs, and to take action to legislate immediately thereafter. This would not impose a time delay on this change being made. Under the original bill, the criminalisation of PPI breaches would not have come into force until 12 months after the royal assent—that is, after the publication of the ALRC report at the end of March. So the only difference excising this measure from the bill will make is that it will be done better, and in a more informed way, immediately after the publication of the ALRC review. In fact, it could happen even earlier. I thank the government for being willing to negotiate with Labor on this point and I urge them to use the time between now and 31 March next year to work through the implementation issues that have been highlighted through this legislative process.
Another contentious part of this bill is the expansion of some of the family law parenting jurisdiction to relevant state and territory Magistrates Courts. Again, Labor supports this measure in principle. If relatively simple parenting matters can be adjudicated in the same jurisdiction as other family law matters, then that's a good thing for all parties involved. However, it is well known—and evidence at the Senate inquiry was given to this effect—that state and territory Magistrates Courts are already incredibly underresourced, with the workload that they have now. This is partly due to an increase in unrepresented litigants, thanks to cuts to legal aid and Community Legal Centre funding and inadequate funding for the judicial system in general.
Giving certain courts expanded jurisdiction, with no extra funding, would be unworkable. You cannot expect overstretched systems to take on more responsibility without more resources. It's pretty basic. Moreover, the Law Council gave evidence during the relevant Senate inquiry that many state and territory courts do not actually exercise the family law jurisdiction that they already have, due to a lack of training or expertise:
Many judicial officers in state and territory local courts do not have experience or knowledge of the family law jurisdiction, or have only limited knowledge and experience, and are reluctant to exercise their powers as a result.
The government has sought to allay these concerns by arguing that the expanded jurisdiction will first be tested through a series of pilots in different states and territories, in conjunction with those governments. We in federal Labor would take the opportunity to urge the government to put funding concerns first and foremost when considering the design of these pilots, and to work cooperatively with state and territory governments and court systems. It's imperative that these already struggling court systems are not pushed beyond the brink.
This bill we are currently debating comes in the middle of a period of intense change for the family law system. There is another bill currently in the House, also focused on the issue of family violence, which seeks to ban cross-examination of domestic violence victims by their perpetrators—it is a much-overdue bill, I would add, and has Labor's support. Of course, we are also shortly expecting the government to introduce a bill that will overhaul the Family Court system completely. The government has expressed an intention to merge the Federal Circuit Court and the Family Court and gradually phase out the Family Court as a specialist division. It also wants to abolish the appeals division of the Family Court and have that responsibility instead become part of the Federal Court. Labor is yet to see that legislation, and so we are reserving our position, but, as a general observation, it's important that in this time of great change for the family law system we tread carefully and deliberately, that in the general sweep of things we don't forget to examine the detail.
It's an obvious point to make, but family law, more than any other part of our court system, touches people's lives, often at their most vulnerable moments. Tinkering with that system should come with a great amount of care. Labor will ensure that we diligently scrutinise any and all of the changes that the government puts forward to our family law system. It's a responsibility that we take very seriously.
The principle behind the Family Law Amendment (Family Violence and Other Measures) Bill 2017 is sound and positive, because it's intended to strengthen the power of our legal system to protect victims of family violence. As we know, overwhelmingly and tragically in Australia, the people who suffer the impacts of family violence are women.
This bill does many things. Perhaps its most significant reform is to allow relevant state and territory courts to be prescribed to have the same family law parenting jurisdiction as that held by state and territory courts of summary jurisdiction under part VII of the Family Law Act. The minister has been clear in the second reading speech about the other changes that this legislation proposes to bring about, including criminalising breaches of family law injunctions made for personal protection; removing the 21-day time limit which applies to a family law order that is revived, varied or suspended by a state or territory court when making an interim family violence order; strengthening and codifying the power of the Family Law Court to dismiss unmeritorious cases and proceedings that are frivolous, vexatious, or an abuse of process; removing the requirement that a court must explain certain matters to a child when it would not be in the child's best interest to receive the explanation; and removing misleading and unnecessary wording that suggests that conjugal rights and an obligation to perform marital services still exist in Australian law.
The Greens regard all of these as worthwhile steps, but we do want to place on the record that our legal system is groaning and bursting at the seams. There are many things that need to occur to deal with the pressure on our legal system. In the main, we need to see extra funding allocated to those parts of our legal and judicial system that are under the most pressure. We also need to make sure that, where we are providing some courts with extra responsibility, the responsibility is coupled with not only extra funding but extra training being provided to officers of the court and to community legal centres, which often provide support for people who are going through legal processes covered by this legislation.
That's why the Greens recommend that courts and legal aid services be properly resourced to adapt to the changes proposed by the bill. We made that view clear in the additional comments that we made to the Legal and Constitutional Affairs Legislation Committee's inquiry into this legislation. We based those comments on submissions made, including by the Law Council of Australia, which expressed concern that the explanatory memorandum made no mention of training state and territory judicial officers in family law. We note and support the Law Council of Australia's argument that 'training is essential for the proper administration of justice' and that it is crucial that 'any such training must be ongoing so that state and territory judicial officers are kept up to date about changes in the law and so that any new judicial officers appointed to the state and territory local courts receive the base-level training as part of their induction'. Those quotes are taken from the law council's submission to the committee's inquiry.
We also note the Australian Human Rights Commission's submission, which cites research that indicates that many judges do not have the skills or the training to directly interact with children and young people. We think it crucial that all judicial officers, including judges, are provided with training that allows them to understand the ways that they can best interact with children and young people. It goes without saying that children and young people are often incredibly vulnerable, particularly when they become engaged with our judicial system. It is worth pointing out that this legislation deals with legal processes that are often where the rubber hits the road, in terms of our community coming into contact with our legal system, and often at times when members of the community are particularly vulnerable. It's really important that our courts are provided with not only the resources to deal with the changes proposed in this legislation but the proper training and upskilling that will allow them to provide the best possible service in the most compassionate and reasonable way for members of our community who are engaged with our judicial system.
As I said earlier, funding for family law courts is not currently at acceptable levels—neither, I might add, is funding for our legal aid system or our community centres. While changing elements of the law may well be a positive step—and, in the Australian Greens' view, there are positive steps in this legislation—doing that in and of itself may become largely redundant if the courts and the legal services are not given the human and financial resources to do their jobs. We can't as a society solve the terrible problem of family violence by only making technical amendments to the law. We have to do a lot more than that and we have to do a lot better than simply and only making these changes. While, as I've argued, additional resources, financial and human, are crucial and urgent, ultimately it is going to take significant cultural change for our country to eradicate the scourge of family violence, which, as I said at the start, overwhelmingly impacts women and, in Australia, is overwhelmingly perpetrated by men.
Parliaments can play an important role because it's in parliaments that we can change the law and make allocations of resources. But it is also from parliaments that many of our country's leaders flow. I saw our country's leaders—Prime Minister Turnbull, the Leader of the Opposition, Bill Shorten, and the leader of the Australian Greens, Richard Di Natale—speak in a united and constructive way at an event at Parliament House last year regarding family violence. We need to make sure we keep showing the leadership that is necessary, because far too many Australian women and families are devastated and destroyed by family violence. We need to change our culture in this country, because for too long too many men in Australia have failed to understand how appalling and unacceptable their violence towards family members, overwhelmingly women, is.
We are going to need to change attitudes. We're going to need leadership. We're going to have to have some difficult conversations in our country. We're going to have to overturn many of the sexist, anti-women prejudices which still pervade our society and, as we've seen in recent times, still, unfortunately, exist in this very chamber.
This evening I rise to contribute to the debate on the Family Law Amendment (Family Violence and Other Measures) Bill 2017. I was pleased to be part of the Legal and Constitutional Affairs Legislation Committee inquiry into this bill. Submitters to the inquiry noted almost overwhelmingly the worthy objectives behind this legislation, but they noted that there were still some significant and problematic aspects to it that should be resolved.
Firstly, as has been noted in the debate already, the question was raised about the fact that this reform is happening in a piecemeal way, without concern for the future findings of the Australian Law Reform Commission's review of our family law system. The resources are being taken up in implementing this legislation within the context of an urgent need for more change to our family law system—specifically, putting the needs of children first and enabling much faster access to justice. In addition, we know that family violence and child abuse, and the way those issues are managed within the courts, will also be incredibly important to the review.
In terms of the bill's provisions, there are significant issues in relation to PPIs. I note, for example, that the criminal penalties that would have applied to breaches of PPIs that were already in place have added a retrospective element to the bill, which is unacceptable to us. We, in this place, should all understand that parliaments should not pass retrospective laws. The citizens of this nation need to know the consequences of our laws before they make decisions. For this not to be the case is incredibly unfair and undemocratic. All of our citizens need to know the terms and consequences of our laws, which should not be retrospective.
So we can see in this situation the terms of existing PPIs, which are often reached by agreement and negotiation between the parties, would have, as we found in this legislation, been changed after they were made. We heard clear evidence and concern about this during the course of the inquiry. It is unacceptable for this to be the case. It would be an abrogation of the rights of both parties that have made these agreements, which were consensual, if criminal liability were to apply retrospectively to a breach of such an order.
This is not the only problem that has arisen with this measure. The new offence for the breach of a PPI would be a Commonwealth criminal offence, but the whole idea behind the provision is to enable state and territory police to enforce the orders. The Tasmania Police, very clearly during the Senate committee hearings, said:
For your information, state and territory police—this may not be something of which the committee is aware—do not routinely enforce the Commonwealth criminal law.
I've seen numerous examples of this problem, not only within family law but also within breaches of privacy, breaches of technology privacy, online abuse and a whole range of other offences where it's quite difficult to engage state police in federal offences—postal offences and other kinds of things. I do not think that this kind of issue has been adequately addressed for us in this place.
The problem which this measure is trying to fix—which is the enforcement of breaches—may be unchanged due to the difficulties inherent in asking state and territory police to enforce this law. I'm very pleased to note that the Attorney-General's Department did, in fact, acknowledge that this was an issue to which a solution has not yet been found. To my mind, this completely underscores the reason we need the Australian Law Reform Commission to report. We need to work closely with the states and territories on how issues of family violence are policed so that we can embed their enforcement, be that under state or Commonwealth law, in an effective way so that we have confidence that breaches of those laws can be upheld. As I said before, the examples of state police not enforcing Commonwealth law are, to my mind, in terms of what I've seen since my time in this place, too numerous to name. Short of having an officer of the AFP in every police station around the country, I do not see that we have adequately resolved these issues. It's pretty incredible to me that this place should be put in the position of seeking to put in place an unenforceable law. It's important that the personal protection injunctions should be excised from this bill, and it's significant that the government has negotiated with the ALP on this point. We're going to have to continue, as has been highlighted by my colleagues, to work through those implementation issues.
I note that there's been significant support from many stakeholders in relation to independent children's lawyers and children's courts being able to make findings on behalf of children in relation to these issues. I personally think it's important that we see children's courts in Australia able to deal with these issues. They are often much better placed to deal sensitively with the needs of young people who are caught up in situations of family violence. I think it is a worthy measure within the bill that they have been given jurisdiction over these issues. I also believe, through the findings of the Senate inquiry, that we have missed the opportunity to participate in a holistic debate about this issue, because we don't know where the Law Council of Australia is up to in relation to the issues that it is currently deliberating on.
In relation to the dispensing with explanations regarding orders on injunctions to children, this evidence was before the committee:
Currently, if a court makes an order or injunction that is inconsistent with a family violence order, the Act requires the court to explain the order to the protected person, who may be a child. The bill would amend this provision, to give the court some discretion not to do so–or to exclude a particular matter from explanation, where it would be in a child's 'best interests'.
I was pleased to see that the department noted:
… this could be used to avoid re-traumatisation of a child who had witnessed or been a victim of family violence having to return to court to have a decision explained—
to them. It was clear that that measure had broad support in evidence, but a number of submitters made it very clear that it would normally be in a child's best interests to have an order explained in the vast majority of cases. I don't want to see Australian judges in a position where they use this capacity now within the law to not explain outcomes to children, because they've not generally been well equipped with the skills and training to undertake direct interactions with children and young people.
As the Law Council said in their evidence to the inquiry, we do not want to see this change in the law leading to:
… judges and court officials adopting a default position that avoids providing children with explanations of court orders and injunctions relevant to their safety and wellbeing because they consider that the children are 'too young to understand'.
These issues need to be dealt with sensitively by the courts. In order to do that I believe it will require a greater level of resources and training to be made available to our courts to be able to deal with these issues sensitively.
I note, for example, that Domestic Violence Victoria said they supported the amendment in principle, in relation to infants and very young children, but objected to it in relation to older children and young people, who have consistently told them that they feel disempowered in the context of family violence and frustrated by others speaking on their behalf. It was particularly significant, as raised by DV Victoria, that the royal commission in Victoria found:
… children and young people were noted as saying their experiences of the family court were unpleasant, and that it was a space in which they felt ignored.
What we need to see is a sound basis for which judges or courts opt out from explaining decisions to children. It has to be made based on a developmental assessment made by an appropriately qualified professional, and, in the case of First Nations children and their best interests, other considerations also need to be taken into account, including: their relationship with a broader set of family members, such as grandparents; their right to enjoy their Aboriginal and Torres Strait Islander culture; and their right to share that culture with other people.
I note that the department found that there was broad support for the measure in most of the submissions, but it's important, I believe, as does Labor, to make sure that it is applied in only very specific and limited circumstances and that it does, as the department says:
… strike an appropriate balance between ensuring that judges do not dispense with an explanation lightly and avoiding an excessive burden on judges to consider an extensive range of matters in making a relatively confined decision.
I hope that the government takes those issues on board. Key to that in particular is more resourcing for our courts, to make sure that they can deal with issues of family violence sensitively.
We have also expressed concern in relation to time limits. The bill removes the 21-day time limit on parenting or related orders made by state and territory courts, including where they're revived, varied or suspended when making an interim family violence order. We can see that it was broadly supported in evidence by organisations such as Victoria Legal Aid. They noted, for example:
…it would be particularly beneficial in regional areas where courts may not be able to offer another hearing for parties within a specific period.
However, we can also see that the Law Council and ATSILS in Queensland expressed considerable concern that this may lead to parents and children being separated for longer periods of time than they otherwise would have needed to be because the court has been delayed in making that decision, because it's interpreted by the court as a status quo parenting arrangement.
I know I don't need to stress the point of how overwhelming the impact of being before the family courts and waiting for a parenting decision is. But we need to make sure that these provisions are exercised, most importantly, in a way that puts children's interests first. I note that the department, at the time, disagreed in evidence:
… the 'change to any 'status quo' parenting arrangement is only one of a number of additional factors which a judge must consider'.
The department also noted:
… there was an intention to provide the state and territory magistrates with information so they would fully understand the operation of this amendment.
However, Labor's concern around this issue was ultimately that we should be able to review these provisions in the future to ensure that they are working effectively.
Our recommendations, within Labor, in addressing this—and we look forward to putting pressure on the government to make sure that these issues are resolved—are indicative of our approach in government. First of all, there's got to be appropriate funding and increased resources and continuing training to accompany these measures, particularly the measures that expand the jurisdiction of state and territory courts. Second:
That a review be undertaken after the summary dismissal provision amendments have been in operation for a period of two years—
That the provisions criminalising breaches of personal protection injunctions be excised from the Bill and the intent of those provisions revisited as a matter of priority as soon as the Australian Law Reform Commission review of the family law system has released their report.
I thank the chamber for its consideration of these important issues.
I'm very pleased to rise to speak to the Family Law Amendment (Family Violence and Other Measures) Bill 2017. The epidemic of family violence in this country is reaching crisis point. It sometimes feels like we can't go more than a few hours without hearing of a woman who's been murdered by a member of her family or hearing of a story of a woman and her children being terrorised by their partner and father. Indeed, it was only a couple of weeks ago that four out of seven of the top stories on The Age website—four out of seven—were of women murdered by men, three of them by their current partner or ex-partner. We know that domestic and family violence doesn't discriminate. It affects people from every walk of life. It disproportionately affects women. We know that domestic and family violence is the No. 1 cause of homelessness for women and their children. We know that one woman is killed per week, on average, by a current or former partner.
So we need to say it like it is: this is an epidemic. Women and their children are being terrorised in their homes—in the place where we expect to feel the safest. Yet in the 2018 budget there was no new funding to tackle sexual assault and male violence in the home. We still don't have adequate funding for the essential frontline services for people experiencing domestic and family violence—services which cannot keep up with the surge in demand. You would think that, facing such an epidemic of violence, the government would spring into action with a response that matches the scale of the problem.
Instead, what have we got from the Turnbull government? We have an amendment to the Family Law Act that has no increase in resources for its implementation. There is a lot of good in this bill. The aims of this bill are good. But the practical effect of this bill will shift the existing cumbersome workload from one court that has more work than it can handle to another court, and without any extra resourcing. You cannot solve the epidemic of family violence by passing some amendments to a bill without investing resources into implementation. Indeed, the Law Council of Australia has said that because this bill doesn't come with any increased funding to state and territory courts, the changes proposed: (1) are unlikely to have any practical effect; and (2) may result in list blow-outs in the children's courts. This is what this bill is going to achieve. This is what not increasing resourcing to family violence ends up achieving: next to nothing.
The Greens want to see our courts and legal aid services appropriately resourced. They must be appropriately resourced to adapt to the changes proposed by this bill. On top of that, the officers of the court must be appropriately trained in family law. They must also be trained so they can appropriately interact with children and young people, many of whom have experienced trauma. This requires extra resourcing, but extra resourcing is not there as part of the legislation. Changing elements of the law, as proposed in this bill, is a positive step, but it is largely redundant if the courts and the legal services are not given the resources they need to implement the changes and to do their jobs properly.
One woman is killed per week, on average, by a current or former partner. We must strive to honour their memories through action, and that means investing in the legal services, investing in the crisis centres and preventive programs that save lives, and improving and investing in the legal system and the courts to ensure that survivors of family violence are given the safety and the justice that they deserve.
I thank the senators for their contribution to the debate on this bill. The government is pleased to support the passage of the Family Law Amendment (Family Violence and Other Measures) Bill 2017. This bill will enhance the capacity of the justice system to provide effective outcomes for vulnerable Australians who are experiencing family violence. It will implement a number of expert recommendations, including those from the Family Law Council, Victoria's 2016 Royal Commission into Family Violence, the Australian Law Reform Commission and the New South Wales Law Reform Commission, and the coronial inquest into the death of Luke Geoffrey Batty.
The bill will facilitate the resolution of family law matters by state and territory courts in appropriate cases. This will reduce the need for vulnerable families to interact with multiple courts across the family law, family violence and child protection systems to address their legal needs.
The bill will increase protections for victims of family violence by reducing the potential for inconsistent family violence orders and family law parenting orders. It will facilitate the expeditious resolution of family law matters and enable courts to better protect victims from perpetrators who attempt to use the family law system as a tool of continued victimisation. It will do this by strengthening and codifying the summary dismissal powers of the family law courts. To ensure that this provision is operating as intended and providing better protection to victims, the government will review this provision after two years.
This bill will also reinforce the principle of equality within relationships by removing a redundant provision in the Family Law Act that suggests that conjugal rights and an obligation to perform marital services still exist in Australia.
The government has delayed introducing criminal offences for breaches of family law injunctions made for personal protection. This government takes the safety of family violence victims seriously and remains committed to the policy intention of the proposed offences. The government will continue to work on implementation issues with policing agencies and other stakeholders and will further consider the proposed offences under the Australian Law Reform Commission's process when it has completed its comprehensive review of the family law system.
The measures in the bill will deliver immediate benefits for families and the courts dealing with complex issues involving family violence, including across multiple jurisdictions. I thank senators for their contributions, and I commend the bill to the Senate.
Question agreed to.
Bill read a second time.