Nick Xenophon (SA, Independent) Share this | Hansard source

I will limit my remarks to no more than five or so minutes because I am grateful to my colleagues who have slotted me in tonight. I want to reflect on something that Senator Madigan told me privately, with his permission. I want to share his disgust at the lack of appropriate process in dealing with such an important piece of legislation.

What is more, there are four other bills tonight that there will be no opportunity to speak on because at 9.30 effectively the guillotine will be applied. We will not have an opportunity to discuss the Crimes Legislation Amendment Bill (No. 2) 2011, which deals with issues of systemic corruption; we will not have an opportunity to discuss the Aviation Transport Security Amendment (Air Cargo) Bill 2011, again an important piece of legislation; we will not have an opportunity to discuss the Veterans' Affairs Legislation Amendment (Participants in British Nuclear Tests) Bill 2011; nor will we have an opportunity to discuss the Protection of the Sea (Prevention of Pollution from Ships) Amendment (Oils in the Antarctic Area) Bill 2011. That is clearly unsatisfactory. This is meant to be the house of review. This is the place where we are supposed to scrutinise legislation. What is happening in this place tonight, and indeed what occurred last night, is completely unsatisfactory.

In the remaining two or so minutes I will reflect on this particular piece of legislation, the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011. There is no question that the safety of children is absolutely fundamental and paramount in our family law system and that we are dealing with vexed and difficult issues. We are dealing with deep sadness, instances of violence and abuse and the fundamental issue of protecting children. I have reservations about the bill in its current form—reservations as to whether there will be a number of unintended consequences and as to whether we will end up taking a step backward from having a fair and just family law system, a system that will put the protection of children first and foremost.

I am concerned that the bill does, as Senator Brandis indicated, overreach and, by doing so, is fundamentally flawed. I think there are issues in relation to the proposed new definition of family violence—that the existing definition is being taken away from us and that issues of reasonableness and a test at common law will be taken away from us with this bill; not to have a more measurable test is deeply flawed. I am concerned that removing issues of reasonableness is dangerous. I am concerned, in relation to the friendly parent provisions that this bill effectively seeks to remove, that there will be a number of adverse consequences. I am concerned that the report of the Legal and Constitutional Affairs Legislation Committee makes mention that some submitters argued that repealing the friendly parent provisions could reward those parents who actively prevent non-resident parents from having contact with their children. And I am concerned at remarks made by the Chief Justice of the Family Court, the Hon. Diana Bryant, who argued that many cases close to completion could be prolonged, putting children at extra risk by log jamming the courts and increasing family stress, unless there are significant extra resources for the Family Court.

But there is one clause that I find particularly objectionable, a clause that I think is almost Orwellian in its scope—that is, the clause that proposes to repeal section 117AB, which provides for mandatory costs orders in the event that false statements have been made. You need to prove that. There is a high threshold.

Mandatory costs orders in such circumstances send a strong message to family law litigants that making false allegations is not tolerated. Unfortunately, false allegations are made in this jurisdiction by all sides. There are a number of cases that have been brought to my attention. I will not mention the names of the parties but, for instance, there was a case where the mother was found to have fabricated allegations of abuse against the father, another where a father was found to have knowingly made false statements about the mother's parenting capacity, another where the mother was found to have knowingly made false statements that a child sustained an injury while in his father's care. Although mandatory costs orders are not often applied, removing the ability for the courts to impose such orders will remove the incentive for people not to make false accusations. That is a fundamental concern I have in relation to this bill.

I also have a concern about the process here. Australians deserve better. They deserve such an important piece of legislation to be debated properly, to be dealt with properly in the committee stages and to be subject to appropriate scrutiny—for questions to be asked and substantially answered by the government. We will not get that opportunity tonight.

I cannot support the bill in its current form. There will be a number of amendments moved by the coalition. I indicate that I will support those amendments because I think they will make the bill tenable. But in the absence of those amendments being passed, I cannot in good conscience support this bill.