Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

I do, thank you. The amendment would remove the provisions of the bill that would allow costs to be awarded against people who make false allegations. Labor is sympathetic to those people who are falsely accused of violence or abuse against their ex-partners or their children. It must be truly devastating in the extreme to be accused of such a thing. However, we do need to be careful not to erect disincentives to people reporting family violence. The evidence received by both the House and Senate committees was that underreporting of violence is a much bigger problem in Australia than false allegations. If violence is an issue, it is something the Family Court must know about. It is central to the best interests of the child. What we must avoid, though, is a situation in which people do not raise genuine allegations of violence because they are worried that they will face cost penalties if the court does not believe them. That would be dreadful.

This is clearly a tricky issue. It is difficult to get the right balance between discouraging false allegations and not discouraging genuine allegations. Labor’s view is that the whole issue should be considered after the Australian Institute of Family Studies has completed its study of the interaction of violence and family law. That way, we will be in a position to work from some real data, rather than mere anecdotes and accusations.

The government has previously taken the arrogant attitude that it should make the law first and review it later. It seems to me that that is a theme of this government. However, we are pleased that the government senators on the Senate committee have agreed with our position. Hopefully the government will now see how untenable its position is. Now that Senator Payne and her colleagues have reached the same conclusion as Labor, I look forward to the government’s response. I look forward to the government—for once—moving to agree to a genuine amendment that comes from the crossbenches and Labor.

There are also a couple of areas on which I would like to seek the government’s view. They turn around the role of the mediator in this whole affair. If an allegation of violence is brought to a mediator, how does the mediator deal with it? Does the mediator report it? Does the mediator then have to judge it and provide evidence to the court? If a person turns up for a certificate and says that they have been the victim of violence, does the mediator have to determine whether the allegation has truth in it or is false, and then report it as such? If they put it in their certificate and hand it to the court, what does the court then make of that? Does it say, ‘There has been a certificate from the mediator that says that there has been an unsubstantiated allegation from one of the parties,’ and therefore take it into consideration and penalise the party accordingly? Can you then effectively be penalised for what you have said and done in the mediation?

That is of great concern to Labor because, if it is so, you are not going to get the parties to go to mediation with all the information that they have. They will be guarded because they will be concerned that they will get there, they will say something and it will not be substantiated or the mediator will not think it is substantiated. The mediator might take an opening statement but then report it. The court looks at it, having received it from the mediator, and says: ‘There has been a false allegation made; costs can follow.’ It would be helpful if the government would clarify how the mediator would deal with those sorts of circumstances.