Gai Brodtmann (Canberra, Australian Labor Party, Shadow Assistant Minister for Cyber Security and Defence) Share this | Hansard source

The ongoing cross-examination of domestic abuse survivors by their perpetrators is a shameful practice and it has gone on for far too long. It has forced victims to settle with underwhelming outcomes in order to avoid being questioned by their perpetrator. We know that victims who are cross-examined by their abusers are less likely to reveal the full extent of their abuse, and courts are less likely to find out the truth. This is an incentive for perpetrators to cross-examine their victims, and we need to remove that incentive.

This bill imposes an outright ban on direct cross-examination of both victim and perpetrator in family law hearings where there is evidence of, or allegations of, family violence. Labor support this bill; we have done so for at least two years. We understand the importance of it, so much so that we took it to the 2016 election. It is a relief to see the government finally joining us in this commitment. There is one major difference, however, between Labor's plan and this bill; the government has failed to guarantee additional funding for Legal Aid or to set aside funding in this year's budget.

National Legal Aid has stated it is very difficult for the service to respond to this proposed legislation without additional funding. Passing this legislation without a guarantee of additional funding could create a crisis situation in the family law system. Legal Aid will not have the appropriate resources to fulfil requests for representation when made by a judge. This means the ban on cross-examination automatically applies to both perpetrators and victims. This could result in a denial of due process, with courts being unable to test facts and thereby being unable to make actual findings. This is the outright denial of justice.

The government says it is conducting ongoing discussions with Legal Aid, which include the topic of funding. At a Senate committee hearing this year, National Legal Aid said those discussions were at an early stage and were not conclusive. If they're 'not conclusive' and they're 'at an early stage', where is this government actually up to in terms of those discussions with National Legal Aid?

Attorneys-General, past and present, have also sent mixed messages about funding for this legislation. In June this year, the Attorney-General told The Australian there would be no extra Legal Aid funding as a result of the legislative change and those prevented from cross-examining their ex-partners would only be able to access Legal Aid if they met the usual rules for qualifying. This means, where the ban on cross-examination applies, parties will be directed to obtain legal representation either privately or through Legal Aid, but only if they are eligible. If a party cannot obtain or refuses to obtain legal representation, no cross-examination can take place. In the government's plan, no-one wins. The accused may lose their right to a fair trial and the affected person may be forced to wait years for the outcome of their case. That is why Labor's plan committed additional funding to support this change.

In the lead-up to the 2016 election, and again on White Ribbon Day in November that year, the Leader of the Opposition announced Labor would commit $43 million to Legal Aid to facilitate a ban on direct cross-examination of survivors of family violence by their perpetrators. This $43 million would be a separate, standalone fund operating outside of ordinary Legal Aid eligibility and it was designed to cover all who are underrepresented. For example, if parties do not qualify for Legal Aid but cannot afford a lawyer, they will be provided for through this fund. This includes both victims and perpetrators.

Without additional funding, the right to a fair trial may be at risk. If the accused isn't eligible for Legal Aid, the government simply says the cross-examination cannot go ahead. This is simply not good enough. National Legal Aid told the Senate Legal and Constitutional Affairs Legislation Committee that it is increasingly difficult for the service to respond to this proposed legislation without additional funding. Without a guarantee of additional funding, passing this legislation could create a crisis situation, as I said, in the family law system.

Here in Canberra, the nation's capital, we are feeling this sting. In its annual report the Law Society of the ACT reported it donated over $1 million in funding to legal aid and community legal centres in the ACT and its pro bono work program helped more than 1,000 Canberrans seeking legal advice in areas of property and tenancy, family law, employment and wills. This is at the same time that the government cut $30 million to legal aid funding right across Australia.

Through pressure from Labor, National Legal Aid and community legal centres, the government restored funding in 2017, announcing an additional $39 million to the legal aid sector, but this was just a restoration of funding. The only new funding was $8.4 million over a three-year period. The government stated the full amount, the $39 million, was intended to prioritise frontline family law and family violence services. But in a sector that is already struggling to meet the needs of the community, taking funding away and rebadging it for something else doesn't really help anyone. It doesn't fix the underlying problem. It doesn't make all the other legal issues people need assistance with go away. It just forces community legal centres to reprioritise their case loads in favour of one area over the other because they are so strapped; they are so up against it. This is the sting on Canberra's legal system right now, even before this bill comes into effect. This bill has the potential to flood Legal Aid with both victims and those accused, yet the government is failing to compensate—or even recognise or discuss it. It's still early days in those discussions, and they're still not conclusive. This is the situation we are facing at the moment.

A recent study by the Australian Institute of Family Studies found there were 173 cases of direct cross-examination of family violence survivors over the course of two years. Organisations, including Women's Legal Services Australia, say this figure does not represent the full extent of the issue, because it fails to include cases that settle before a hearing in order to avoid the prospect of direct cross-examination. According to an Australian Institute of Health and Welfare study, women are at far greater risk of family violence than men. On average, one woman is killed every week by a current or former partner, one in three women has experienced physical and/or sexual violence perpetrated by someone known to her, and one in five women over the age of 18 has been stalked in her lifetime. Domestic violence is the principal cause of homelessness for women and their children, and this compares to one in 16 men. We have heard from so many women who say either they settled for an imperfect outcome to avoid cross-examination by their perpetrators or they went through the experience and suffered really horrible, horrendous circumstances and consequences. Women are likely to be the main beneficiaries of this policy. That makes this a women's issue. Domestic violence is one of Australia's most pressing issues, and the numbers that prove it are alarming. For every woman who comes forward, there are so many who won't have their story heard. They suffer in silence.

A recent report published by the Women's Centre for Health Matters found that here in the ACT most women who experience domestic violence are staying in their homes post crisis and not accessing the crisis service and the crisis system. This means that they're not accessing homelessness services and do not have access to the support systems that are available to others. Many of these women are middle-income earners and are employed full time. They are not able to access financial assistance and support, because they don't qualify for hardship provisions or loans. So it's not just a case of women being afraid to leave; in these circumstances they can't leave. They're caught in this vicious cycle of being compelled to stay in an abusive situation because there's nowhere for them to go. There is simply nowhere for them to go. Without additional funding to legal aid, we are providing another roadblock for women in this situation. These women can't escape. They're caught in this vicious cycle of not having the money to leave or not having the homelessness support systems and the legal support systems because of the income that they're earning, and yet that income is relatively modest. These women may not be eligible for legal aid and are unable to afford private legal representation, and this gives them another reason to stay in an abusive relationship, to stay in an already dire situation.

We already know how this government feels about women. You don't need to look further than their frontbench to figure it out, and we've had it all playing out for us over the last three weeks. Women make up 51 per cent of the population, yet representation of women on the other side is about 20 per cent in the lower house and 32 per cent in the upper house. This is outrageous and shameful in 2018. On this side, however, tackling equality for women is very important. We have nearly 50 per cent women in the House of Representatives. Compare that to those opposite. For us, tackling family violence is a priority, in government or in opposition. We are extremely proud of the work that we've done, but there is always more to do.

Labor supports the substance of this bill. That is why we have been calling for it for two years now. We committed to this important change ahead of the 2016 election and we recommitted to it on White Ribbon Day in November 2016. That commitment included $43 million for Legal Aid in order to facilitate the representation of under represented litigants. We made that funding commitment because we listened to stakeholders. We listened to women who were in abusive relationships, women trying to escape abusive relationships, women who had been victims of this cross-examination. We spoke to Legal Aid, legal societies, women's support services, rape crisis services. We spoke to stakeholders long and extensively. They told us that this change could not be made on current funding levels. Labor will welcome any form of announcement from the government to commit to additional funding to support this bill. We encourage the government, we beg the government to invest in Legal Aid and to fund to properly fund this legislation—not with reheated money, but with new money, with significant funding to ensure that people actually have access to their legal rights, particularly those women who are fleeing domestic violence relationships, fleeing hardship, fleeing horrible consequences in their homes. We ask the government, please, please commit the funding so that we do not have already stretched Legal Aid services and support services being flooded with the changes that arise from this bill.

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