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

We support amendments (2) to (4) and amendment (5). I will not go to those in any detail. Amendment (1) tries but in truth fails to implement one of the recommendations of the Senate legislation committee. The amendment tries to address one of the criticisms of an objective test—namely, that it does not allow the court to consider the subjective circumstances of the victim, such as a history of abuse that might make that person more likely to apprehend fear in circumstances in which the reasonable person might not.

Labor is not convinced that this government amendment is a real solution to the problem. Firstly, these interpretive notes are not binding on courts. Secondly, and more importantly, there is ambiguity in what it means to take into account particular circumstances—for example, do those circumstances just involve the history of the particular relationship or is the court allowed to consider a history of abuse at the hands of former partners or other family members? It is not hard to appreciate that a person in the latter category might be more disposed to feel afraid than the reasonable person in a similar particular circumstance.

The problem with an objective test is that it involves judges making decisions about what level of fear is or is not reasonable. Judges must find it impossible to empathise with the particular circumstances of each of the many and varied cases they see. This is why, as we have said, we want the whole issue considered by the AIFS so we can see what recommendations they can make.

In fact, we have been advised that this amendment could even make matters worse, constricting even further the court’s ability to put itself in the shoes of the individual, to use the Senate committee’s phrase. We are advised that the use of the phrase ‘particular circumstances’ could draw the court’s attention to only the circumstances existing at that point in time. We are also advised that the phrase ‘reasonable person’ is even more restrictive than ‘reasonable fear’, which is the terminology of the substantive provision. According to that advice, the former allows less and not more consideration of the experiences and feelings of the individual.

Given these concerns, we will oppose this amendment. We cannot accept the risk that it could reduce the ability of the court to deal with family violence even more than the current bill. As we argued on the proposed substantive provisions and on the Democrat amendment, we believe that it is inappropriate to be making policy on the run on this important definition. It may seem minor and technical, but it is actually a crucial definition for the operation of the family law system, especially the way it responds to the difficult issues of family violence.

The issue is not critical to the reforms we are considering. The government knows and understands that. We say: let us stop tinkering. Let the AIFS study it and let us have a serious look at these recommendations before making any changes to the form of this definition. The government knows that it is tinkering to try to explain its position away. I think it has failed and should just give up.