Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

Family violence is an issue that, thankfully, no longer hides in the shadows. In the last five years or so, thanks to the tireless advocacy of campaigners like Rosie Batty, it has become an issue that can no longer be ignored. There has been welcome bipartisanship on this issue, both at state and federal levels. It is good that both Labor and the coalition have agreed that such an issue is beyond politics, that this is a national crisis that we cannot waste time bickering about. I am proud that Labor has played a role in making a difference on the issue of family violence. At the 2016 election, for example, Labor pledged to end the cross-examination of family violence survivors by perpetrators and committed $43 million in additional funding to legal aid to facilitate that change. I note that a government bill to impose this same ban will be debated in this place at a later time this week—although without the pledge of any additional funding, which is of course a grave concern that Labor will highlight.

One of the most significant steps forward has been in my home state of Victoria, with the landmark Royal Commission into Family Violence. The 13-month inquiry, led by Marcia Neave, made landmark recommendations that were all adopted by the Victorian government. Last year's Victorian state budget contained $1.9 billion in funding dedicated to the prevention of family violence and, in March this year, the government announced the creation of a standalone agency, Respect Victoria, dedicated to the cause.

We have also had a television advertising campaign from the federal government, which had as its aim the early prevention of negative attitudes towards women, and funding of a domestic violence package at the federal level.

All such measures are welcome. We have made a lot of progress in a short time. However, on an issue like this, of the most grave importance and which affects so many families, we must constantly be checking on ourselves as to whether we are doing enough. Recently there have been indications that the answer to that question is no. Last month, readers of The Age woke up to a confronting front page. There were the faces of four smiling women, one on a beach in sunglasses, others dressed up for a party. All had been or are alleged to have been killed by domestic partners. One of them, 26-year-old Snezana Stojanovska, was three months pregnant when she died. There are, of course, hundreds of other women whose faces and names we will never know who are affected every day by domestic violence.

Every domestic violence case that ends in a death is another reminder that we as a political collective have failed. A report issued by the Australian Institute of Health and Welfare in February 2018 sent the strong message that not enough progress is being made. 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 intimate partner violence was the single greatest health risk factor for women aged 25 to 44. It found Indigenous women are more than 32 times as likely to be hospitalised due to family violence than their non-Indigenous sisters. With all of this in mind, Labor welcomes the intent of this bill, which makes a number of changes to how the family law system operates in this country in relation to family violence.

This bill contains measures that are designed to simplify the jurisdictions in which family matters are dealt with. It expands the powers of some state and territory courts, such as children's courts, so that those courts gain some family law parenting jurisdiction. It will also increase the property value threshold under which state and territory courts can hear contested family law property matters without both parties' consent. In practice, this should mean that related matters, such as child protection and custody matters, can be decided at the same time and in the same place, with both parties present.

The government has informed Labor that it intends to trial these matters in selected locations with cooperation from state and territory governments. The terms of each pilot will be put to parliament at a later date through regulation. In principle, Labor supports this measure, at least in its pilot form. It is vital, of course, that if state and territory courts are asked to do additional work they are delivered commensurate additional funding by the federal government. Again, the government has said that additional funding will be part of the negotiations with the states and territories.

There are several factors for the government to take into account as it progresses with these pilot schemes. The first, as I highlighted just now, is the funding gap that currently exists in our court system, which has contributed to extensive delays in many matters coming to trial. This is closely related to inadequate funding for legal services, including legal aid and community legal centres, and a consequent increase in unrepresented litigants. This can be particularly difficult and damaging in family law cases. All of this must be taken into account as the government considers how much funding to deliver to the state and territory courts as part of this trial. Funding cannot be an afterthought in these pilots; it has to be a first-order consideration.

The second factor is evidence given by the Law Council during the committee process that many courts are not currently exercising the family law jurisdiction that they have already. The Law Council said that the problem was due to lack of training, competence and expertise. I quote from the Law Council's submission:

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.

Proper training for state and territory magistrates is vital if these pilots are to work. It certainly seems that there has not been enough training to date. The evidence shows there is a lot more to be done. If improvements for families are achieved through this trial—and it seems like this may be the case, if done properly—then that can only be a welcome thing. Labor will closely monitor the pilot schemes as they progress.

The bill also makes a number of sensible changes, including: allowing for short-form judgements in interim matters before state and territory courts; 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; and removing the requirement that a court must explain certain matters to a child when such an explanation would not be in the child's best interests.

The bill would also strengthen the power of the family law courts to summarily dismiss unmeritorious cases and vexatious claims. There was some concern raised during the committee process that this could disadvantage victims who perhaps made procedural errors leading to their claims being labelled as 'vexatious'. The Attorney-General's Department has attempted to assure those critical of this measure in the bill that there are appropriate safeguards. But Labor calls on the government to commit to a two-year review of this measure to ensure that it is indeed the case in practice.

This bill also removes shockingly outdated wording in the act that suggests that conjugal rights and an obligation to perform marital services still exist in Australian law—something that many in this place will be surprised to hear has been in the law until now. It's anomalies like this which remind us just how far we have come in gender relations in a relatively short time.

The original bill, introduced by the government into the Senate, also contained a measure that would criminalise the breach of personal protection injunctions, or PPIs, which was cut from the bill following negotiations with Labor. I want to explain why this decision has been made. Make no mistake: Labor support taking a tough approach to the prevention of domestic violence. We want injunctions and intervention orders to be properly enforced. However, the proposal for criminalisation contained in the government's original bill contained some serious flaws which we believed could have made the measure counterproductive. In particular, 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. 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 believe it would be an abrogation of the rights of both parties to PPIs arrived at by consent if criminal liability were to all of a sudden apply to a breach without any opportunity to renegotiate that PPI.

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 serious problem. As the Tasmanian 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.

So the very problem which this measure is trying to fix—the lack of enforcement of breaches—may be made worse 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 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 personal protection injunctions. Labor has 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 royal assent—that is, after the publication of the Australian Law Reform Commission report at the end of March next year. So the only difference that 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.

Labor supports in principle the criminalisation 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 a fair responsibility for traumatised and often fearful people to have. It's something that we want to fix. But let's make sure that, if this change is made, it is done properly. The areas of family law and family violence are too important to tinker with unthinkingly, and, in general, criminalising an act that previously had only civil penalties is always a significant change that should be carefully examined.

I urge the government to use the time between now and the publication of the ALRC report on 31 March next year to work through the implementation issues that have been highlighted through this process. There are currently a number of significant changes planned for the family law system which, if all successful, would remake the current system as we know it. Undoubtedly, family law is an area of our legal system that needs scrutiny and needs change. It is failing many families, often at their most vulnerable points. But, in the rush to get changes made, we have to ensure that we are doing these changes well and doing them properly. The family law system, more than any other part of the legal system, touches people's everyday lives. The consequences for getting things wrong are very grave. In particular, we must make sure that any changes that are made have a strong evidence base and that they are the outcome of extensive consultation with the sector. Making change any other way would be poor practice indeed.

This bill is a good example of the benefits of proper process, with a significant change being made as an outcome of consultation and public hearings, which is to the benefit of all. I commend the bill to the House.

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