Senate debates

Wednesday, 5 December 2018


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

11:36 am

Photo of Helen PolleyHelen Polley (Tasmania, Australian Labor Party, Shadow Assistant Minister to the Leader (Tasmania)) Share this | | Hansard source

This bill, the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill, 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, choose to settle in order to avoid it, often with suboptimal 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 is 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.

Before the 2016 election, Labor pledged to change the law so that this horrible practice stops happening. We also pledged $43 million in funding for Legal Aid, over four years, to provide legal representations during hearings to prevent direct cross-examination from being necessary. Our party leader committed Labor to that policy on White Ribbon Day in November that same year. It was then and it is now an initiative I am very proud of. It was something that needed to happen. As the member for Maribyrnong 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 …

And we can put a stop to it.

Labor's policy would have compelled judges to first 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 this bill, the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill, which imposes an automatic ban on direct cross-examination of family violence survivors by their 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 automatically be imposed 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, then 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 those conditions are met. In that case, the court still has the discretion to impose a ban if it is deemed appropriate, and, if a ban is not imposed, the court will be required to apply other protections for the victim 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 survivor and perpetrator. If either party cannot obtain or refuses to obtain legal representation, no cross-examination can take place.

This bill was put through the House ahead of any funding for Legal Aid being announced, which Labor objected to on the basis that it was premature. However, we are pleased to hear that a deal has in fact been struck with Legal Aid of $7 million over three years, commencing 1 July next year. Although this is substantially smaller than Labor's commitment, and Labor remains sceptical that the amount will be sufficient, we accept that National Legal Aid has expressed satisfaction with this amount. We continue to believe, for instance, that the current numbers of instances of victims facing cross-examination by their abuser are an underestimation, given many women are likely to choose to settle rather than face such an ordeal.

There is a two-year review written into this legislation, which will be a welcome test of the adequacy of this funding. Should that review show that $7 million over three years does not stretch far enough, the government of the day must commit to addressing this shortfall. It is 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. This 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 and let them tell me of the issues that they're facing. Let me tell you, there is nothing left in the tank. That's what I get told, and I hear that regularly. National Legal Aid gave evidence at the inquiry into this bill. They said:

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 who are the most vulnerable and in need of assistance. In August, 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 will read a few lines from that letter:

… as a matter of urgency, we are asking you 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.

Protecting victims of family violence is not a second-order matter for this parliament; it is one of the most important things. With this bill today, although it has taken far too long, we are a step closer. I commend the bill.

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.

11:54 am

Photo of Ian MacdonaldIan Macdonald (Queensland, Liberal Party) Share this | | Hansard source

This bill, the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018, was reviewed by the Senate Legal and Constitutional Affairs Legislation Committee, which I have the honour to chair. I want to thank the other members of the committee, Senator Pratt, Senator Hume, Senator McKim, Senator Molan and Senator Watt, for their contributions to the report into this bill, a report to the Senate which was unanimous and recommended that, subject to one condition, the bill be passed.

I congratulate the Attorney-General and the Liberal-National government for addressing this issue, which has been an issue for some time. It simply points out yet again that the Liberal and National parties are the parties that don't just talk about the social issues, that don't just talk about victims' rights, particularly for women in these situations, but actually do something about them and introduce legislation to deal with pressing issues. I'm pleased to say that in this instance the government's approach has been followed and adopted by both the Australian Labor Party and the Greens political party. As I mentioned, as a result of that, the committee's report was unanimous.

I do want to thank all of those many people who made very detailed submissions to the committee and those who attended before the committee's public hearing to give evidence. Can I at this time, as we approach Christmas, particularly mention the staff of the secretariat—Dr Sean Turner, Mr Nicholas Craft, Ms Ophelia Tynan, Ms Alexandria Moore and Ms Kate Morris—who did a wonderful job on this report, as usual. I thank publicly the committee secretariat for the work they do throughout the year. My committee seems to get its fair share of work through a number of bills relating to legal and constitutional matters, which means the committee secretariat is always at full speed in dealing with these things. In this instance, as in the case of all committee reports, the committee has done a wonderful job encapsulating many of the important points made by those who submitted in writing and those who gave evidence, and the views of individual senators who constitute part of the committee.

Very briefly, the committee recognises that there exists a significant problem in relation to direct cross-examination of parties in cases where allegations of family violence have been raised. In particular, the committee is alert to the fact that retraumatisation can occur as a result of a victim being cross-examined by the perpetrator. The committee welcomed the bill's attempts to address this situation and prevent further harm to those experiencing family violence. The committee also notes that the intent of the bill was widely supported in the evidence tendered to the inquiry. The committee noted, as Senator McKim also noted, that a critical tension emerged in the evidence—that is, that a balance had to be maintained between procedural fairness and the protection of parties who've been affected by family violence and who've experienced family violence. After carefully considering the evidence presented to the committee in relation to these matters, the committee came to the conclusion that the bill did provide the correct balance that was required.

During all of the committee's inquiry and in the evidence, concerns regarding funding of the bill's proposed measures were a consistent theme throughout the evidence provided. Basically, the bill requires that for people in these situations—where a perpetrator wants to cross-examine them—the rules should be that legal advice is provided so that this doesn't happen. The committee further acknowledged the evidence given that related to litigants who might not qualify for legal assistance and who cannot afford private legal representation. Evidence gathered by the committee suggested that this group of people may be significantly impacted by the bills proposed measures. Again, the committee notes the advice provided by the Attorney-General's Department that the issue is currently being considered. I note the Labor Party tried to make some political capital of this by suggesting that Mr Shorten had written to the Attorney, but Mr Shorten's letter was after the committee had reported and published its recommendation along the same line.

I'm delighted that the committee's first recommendation was that details regarding funding of the measures contained in the bill needed to be made public prior to the commencement of the date of the bill and that that needed to be provided to the Senate. I'm delighted that on 20 November this year Ms O'Dwyer, on behalf of the government, in releasing the women's economic safety package, specifically provided that $7 million would be provided over three years ongoing, commencing from 1 July next year, to ensure that the provisions of this bill are able to be met and that the legal aid is properly funded to do the duty it's required to do under this bill. Those measures in the bill will be reviewed after the two-year period.

I conclude by thanking all of those involved—my colleagues in the Senate, the submitters and particularly the secretariat. I emphasise again my congratulations to the government and the Attorney-General for dealing with this issue which has been around for a long period of time. Minister, my congratulations to you and to the minister whom you represent here for actually doing the work—not just talking about it, not just wringing your hands with regret at what was happening but taking practical measures to support it. I again emphasise that the committee's report was unanimous. I thank the Labor Party and the Greens political party for supporting the committee's recommendations and thank the government for acceding to recommendation 1, regarding legal aid.

12:02 pm

Photo of Michaelia CashMichaelia Cash (WA, Liberal Party, Minister for Small and Family Business) Share this | | Hansard source

I rise to sum up the debate on the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018. I thank all senators for their contributions to the debate on this bill and for their support of this very, very important measure. Before I go into the summing up debate, I understand, Senator McKim, that you had asked a question. I now do have the response to that question. I understand it was in relation to legal aid funding. I am advised that legal representation under the scheme will be available to all parties, subject to the ban on direct cross-examination. Legal aid commissions' usual means and merits tests will not apply. I hope that answers.

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


Photo of Michaelia CashMichaelia Cash (WA, Liberal Party, Minister for Small and Family Business) Share this | | Hansard source

Excellent; thank you very much.

During debate in the House of Representatives the Attorney-General confirmed that the government will ensure adequate funding is provided to legal aid for representation of those affected by the bill. On 20 November 2018, the government announced ongoing funding, initially of $7 million over three years, to establish the new Family Violence and Cross-examination of Parties Scheme. Legal representation under the scheme will be available to all parties, as I've just said to Senator McKim, subject to the ban on direct cross-examination in the bill. The usual legal aid means and merits tests will not apply. Parties may be required to contribute to the cost of their legal representation under the scheme based on their ability to pay, their circumstances and the cost of the matter. The government has worked extensively with National Legal Aid to accurately cost this measure and ensure that the scheme is fully funded.

The government has relied on the Australian Institute of Family Studies research it commissioned on the prevalence of direct cross-examination in family law proceedings involving allegations of family violence to identify the number of people likely to be affected by the ban. Further, the government consulted extensively on the measures in the bill, which strike the right balance between the need to protect victims of family violence from retraumatisation and the need for procedural fairness.

Evidence suggests that safeguards are not applied consistently in family law proceedings involving family violence. This creates a risk of retraumatisation for victims and, consequently, a deterrent from actually engaging in the judicial system. This bill will prioritise the safety of family-violence victims in family law proceedings by requiring that legal representatives conduct cross-examination or by ensuring that other protections are in place. Parties will be able to access the judicial system knowing that there are mechanisms in place to support them through what can be a very, very difficult process.

The government acknowledges that demonstrating the existence of family violence is complicated. Reporting family violence is challenging and, consequently, allegations of family violence are often made for the first time during family law proceedings. The government also acknowledges that each victim of family violence is unique and the effects of that violence will vary from victim to victim. For these reasons, the circumstances in which the legislative ban will apply comprise a variety of indicators that family violence has occurred. The court will also have the discretion to apply the ban where there are allegations of family violence but the prescribed circumstances are not met. If the ban does not apply, the bill will require the court to apply other protections for the victim, such as a video link or screens.

This bill will protect all victims of family violence in family law proceedings that involve allegations of family violence. In short, this bill will ensure that all parties have a fair hearing, sufficient opportunity to make their case and the opportunity to test any adverse evidence presented by the other party. The measures in the bill will be reviewed after two years. This review will include looking at the costs of providing legal representation under the measures in the bill and will inform ongoing funding requirements.

This bill will improve the justice system's ability to support vulnerable witnesses by requiring the use of protections in family law proceedings that involve allegations of family violence. Further, this bill implements a number of expert recommendations and demonstrates the Morrison government's ongoing commitment to addressing family violence. I thank senators for their contribution, and I commend the bill to the Senate.

Question agreed to.

Bill read a second time.