Chris Hayes (Fowler, Australian Labor Party) Share this | Hansard source

I too would like to make a contribution in this debate on the Family Law Amendment (Family Violence and Other Measures) Bill 2018. I should make clear from the outset that we on this side will be supporting this bill. This is something, by the way, that has been part of Labor Party policy for some time. The reforms captured in the bill are issues that we on this side of the House have been demanding over the last two years. As a matter of fact, we took the measure that's included in this bill to the last election, in 2016. I was with the Leader of the Opposition in November 2016 when he reaffirmed his support for this measure at a White Ribbon Day function.

What the bill does, in essence, is put an outright ban on the direct cross-examination of both victims and perpetrators in family law hearings where there is evidence or allegations of family violence. The explanatory memorandum to the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 says the prohibition will be administered through the process of the court, which will make a request or a direction that the party engage a lawyer, either privately or through legal aid, for the purpose of cross-examination where either party is not represented by a solicitor.

The significance of these reforms was certainly captured by the Queensland Law Society in their submission to the Senate Legal and Constitutional Affairs Committee when they stated:

It is well recognised that direct cross-examination of victims of family violence not only perpetuates the abuse but can result in the court receiving incomplete or poor quality evidence. Victims of family violence are likely to find court processes stressful and traumatic, which will impede their capacity to properly present their case and effectively cross-examine the other party.

Like many in this House, I am an ambassador for White Ribbon and have participated in various events organised either here, around the parliamentary precincts, or in our electorates. I have taken a very strong view when it comes to family violence. That is why we should all have a direct interest in this matter that is before us today.

But the point I want to stress is that the ongoing cross-examination of domestic abuse survivors by the perpetrators of the abuse is an absolutely shameful practice and has been allowed to go on for too long. We have heard from many women that, in various family court proceedings, they have settled for imperfect outcomes in order to avoid being cross-examined by the person who perpetrated the violence against them. In other words, they took the line of least resistance: they were prepared to accept an inadequate outcome that would bind themselves and their families for quite some time—simply to not have the perpetrator of the violence cross-examine them in court.

That is a shocking practice and it must end. Subjecting victims to hostile questioning by the perpetrator of the domestic violence in court inflicts a fresh trauma; it often makes the victim reluctant to even take a case to court. It perpetrates the cycle of violence by reasserting the perpetrator's power over the victim—in this case, in a courtroom. This is unacceptable, it is disrespectful, and anyone in this place who stands against domestic violence should say it must end.

When the Labor Party introduced its policy of preventing the cross-examination of victims of domestic violence in Federal Court proceedings by the perpetrator of that violence, we committed $43 million for legal aid. For the courts to decide to either request or direct an unrepresented party to have a lawyer undertake the cross-examination means the person must either fund the lawyer themselves, if they have the capacity to do so, or, alternatively, rely on legal aid. That is the basis for the Labor Party's commitment of $43 million for legal aid to facilitate the representation of litigants.

The bill before us today does not have any funding commitment with it. It says the right things about not having victims of domestic violence being cross-examined by the perpetrator of violence. It says the right things about the courts having a power to direct or request the litigant to have representation. But it does not give legal aid any additional funds to be able to facilitate this. In highlighting the importance of legal representation in matters of family violence and the need for adequate funding, the Australian Human Rights Commission, in its submission to the Senate inquiry, emphasised 'the need for full legal representation for each party to ensure procedural fairness' and suggested that 'the administration of the appointment of lawyers could be managed by the legal aid commission'. They went on to say that 'this could not be accomplished under existing legal aid funding levels'. In other words, the Legal Aid Commission doesn't have the additional money to facilitate this. If they were to respond to the direction of a judge to provide representation to the litigant—if they put a lawyer in charge of the cross-examination—it might be that they have to take funding away from other matters which are before the Legal Aid Commission. Matters that ordinarily would have been funded would be redirected to facilitate the judge's request in this regard.

That's not the way that you run legislation, particularly on such a sensitive issue as this. It's not the way that you make laws in this country that have bipartisan support. Say the government are serious about implementing these measures—and I hope they are, because we might have our differences with our colleagues on the other side, but, when it comes to family violence, I think we are all prepared to stand up as one and call out family violence wherever it occurs. If we are serious about making these changes and supporting the victims of domestic violence, and if we are serious about ensuring that we don't facilitate the continuation of violence even in another form, such as being attacked in cross-examination in the courts, surely the government would fund these measures? It cannot introduce legislation in this place making powers for the courts to unilaterally make directions but, when they do, there is no funding capacity for people who do not have the financial ability to engage their own lawyer. There is no additional funding capacity for Legal Aid to make good on the directions given by the court in this regard.

Governments make decisions on many things. We will argue to and fro, particularly when it comes to budgets. We will have our priorities that we believe in on our side of the parliament, and clearly those on the government benches will seek to fund the priorities that they think are most appropriate to them and the constituents they purport to represent. But, when you produce a piece of legislation that is supported by both sides—a piece of legislation that is designed to make a difference for the better in our community—and you bring it to the parliament with no funding attached to it, it's almost dooming it to failure. Either the legal aid commission can find efficiencies in other areas or the legal aid commission can give priority to one matter over another matter. That means injustice might be done to other people as a consequence. It just shows that this is very poorly thought out.

In June this year it was reported that the Attorney-General said the government was working closely with National Legal Aid on the implementation of the new law. However, he said there would be no extra legal funding as a result. If that were going to be the case and you'd gone to the national legal aid commission and told them there was to be no extra funding, why would you bother bringing the legislation into this place? This is not just to get a tick off for the purpose of politics to make yourself look good—and possibly go into an election shortly, if the pundits are right. I think that, on something that has the support of both sides of the House, we all have a vested interest in making sure we protect the victims of domestic violence. We all have a vested interest in ensuring that we don't perpetuate the trauma of victims of domestic violence. Surely we can make this work, not simply go to Legal Aid and tell them there's no extra money and they can work it out the best they can to facilitate directions of the courts.

The Australian Law Council has certainly explored much of this. It hasn't held back with its warnings that there could be significant unintended complications in the delivery of justice as a result of not attaching funding to this piece of legislation. The Law Council of Australia notes that it cannot envisage a process in which the family courts would be able to oversee parties acquiring legal representation without additional and further procedural requirements for the case management before trial, thereby adding additional costs to the cost of representing litigants. It also can result in delays of proceedings. The Law Council went on to say:

It is foreseeable that the Bill will have the consequence of trials being adjourned or trial listings being vacated so that legal representation can be obtained. The new provisions may also give parties the opportunity to delay for strategic reasons.

In other words, if one party is of wealth they could actually frustrate these trials for a party which relying solely on legal aid for their representation.

The government must give certainty on how it intends to meet the funding question, and it can't be by putting its head in the sand and saying, 'It's all up to National Legal Aid.' On our side, Labor have always maintained a commitment to an Australia free from domestic violence. We renew that commitment. We support the bill before the House but reiterate that our policy position is to appropriately fund National Legal Aid to be able to facilitate the outcomes envisaged in this bill.

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