Deborah O'Neill (NSW, Australian Labor Party, Shadow Assistant Minister for Innovation) Share this | Hansard source

I rise to put on the record Labor's position with regard to the Family Law Amendment (Family Violence and Other Measures) Bill 2017. Family violence continues to be a scourge on Australian society. Politicians on all sides in this place must never lose focus on addressing its root causes and aiming to eliminate it altogether from Australian homes. A damning report issued by the Australian Institute of Health and Welfare in February 2018 sent the strong message that we are not doing enough. That report found that, on average, one woman a week and one man a month were killed by a current or former partner. It found that intimate partner violence was the single greatest health risk factor for women aged 25 to 44, and it found that Indigenous women are more than 32 times more likely to be hospitalised due to family violence than their non-Indigenous sisters.

With those sobering statistics in mind, Labor welcomes the intent of this bill, which aims to make a number of changes to how the family law system operates in this country in relation to family violence. Its main aim is to simplify the jurisdictions in which family matters can be heard and dealt with. To summarise its main provisions, the bill would expand the powers of some state and territory courts, such as children's courts, so that those courts gain some family law parenting jurisdiction; increase the property value threshold under which the state and territory courts can hear contested family law property matters without both parties' consent; allow for short-term judgements in interim matters before the state and territory courts; remove the 21-day time limit which applies to a family law order that is revived, varied or suspended by a state or territory court when making an interim family violence order; strengthen the power of the family law courts to summarily dismiss unmeritorious cases and vexatious claims; remove the requirement that a court must explain certain matters to a child when that explanation would not be in the child's best interests; and remove vastly outdated wording in the act that suggests that conjugal rights and an obligation to perform marital services still exists in Australian law.

The original bill also contained a measure that would criminalise the breach of personal protection injunctions, which the government has excised from this bill following negotiations with Labor. Let me take some time to explain why this change was made. Labor supports taking a tough approach to the prevention of domestic violence. Making sure injunctions and intervention orders are properly enforced is part of that. So Labor supports, in principle, the criminalising of breaches of PPIs. The system at present, where victims must bring a civil action in the family law courts to enforce the civil penalty for a breach, puts too much onus on victims to be the ones upholding the integrity of the system. That's not fair, and it's not a fair responsibility for traumatised and often fearful people to have to take on that burden.

However, the proposal for criminalisation contained in the government's bill contained some serious flaws. Namely, criminal penalties would have applied to breaches of PPIs that were already in place. This added a retrospective element to the bill, which was unacceptable to Labor. As a rule, parliaments should never pass retrospective laws. Our citizens should know the terms and consequences of our laws before they make decisions. It is unfair, unjust and undemocratic to change these terms and consequences later. In this case, the terms of existing PPIs, which are often reached by agreement and negotiation between the two parties, would have changed after they were made. This is unacceptable. Labor believes it would be an abrogation of the rights of both parties to consensual PPIs if criminal liability were to retrospectively apply to a breach. However, this was not the only problem with this particular measure. The new criminal offence for the breach of a PPI would be a Commonwealth criminal offence. But the whole idea behind the provision is to enable state and territory police to enforce the orders. This is a basic problem. As Tasmania Police said during the Senate committee hearings:

For your information, state and territory police—this may not be something of which the committee is aware—do not routinely enforce the Commonwealth criminal law.

Therefore, the very problem which this measure is trying to fix—enforcement of breaches—may be unchanged due to the difficulties inherent in asking state and territory police to enforce Commonwealth law. The Attorney-General's Department acknowledged this was a problem to which it had not yet found a solution, telling the Senate committee that:

… the practical implementation issues with the enforcement of criminalisation of personal protection injunctions need to be worked through.

The parliament cannot pass a law that the government has not yet worked out how to implement effectively. It's pretty simple.

The other consideration is the major Australian Law Reform Commission report into the Family Law Act and the family law system, which is due in March next year. This report will inevitably address how family violence matters are dealt with through the family law system, including measures like PPIs. We in Labor have called for the government to wait until that report is published to consider how best to make the significant change of criminalising the breaching of PPIs, and to take action to legislate immediately thereafter. This would not impose a time delay on this change being made. Under the original bill, the criminalisation of PPI breaches would not have come into force until 12 months after the royal assent—that is, after the publication of the ALRC report at the end of March. So the only difference excising this measure from the bill will make is that it will be done better, and in a more informed way, immediately after the publication of the ALRC review. In fact, it could happen even earlier. I thank the government for being willing to negotiate with Labor on this point and I urge them to use the time between now and 31 March next year to work through the implementation issues that have been highlighted through this legislative process.

Another contentious part of this bill is the expansion of some of the family law parenting jurisdiction to relevant state and territory Magistrates Courts. Again, Labor supports this measure in principle. If relatively simple parenting matters can be adjudicated in the same jurisdiction as other family law matters, then that's a good thing for all parties involved. However, it is well known—and evidence at the Senate inquiry was given to this effect—that state and territory Magistrates Courts are already incredibly underresourced, with the workload that they have now. This is partly due to an increase in unrepresented litigants, thanks to cuts to legal aid and Community Legal Centre funding and inadequate funding for the judicial system in general.

Giving certain courts expanded jurisdiction, with no extra funding, would be unworkable. You cannot expect overstretched systems to take on more responsibility without more resources. It's pretty basic. Moreover, the Law Council gave evidence during the relevant Senate inquiry that many state and territory courts do not actually exercise the family law jurisdiction that they already have, due to a lack of training or expertise:

Many judicial officers in state and territory local courts do not have experience or knowledge of the family law jurisdiction, or have only limited knowledge and experience, and are reluctant to exercise their powers as a result.

The government has sought to allay these concerns by arguing that the expanded jurisdiction will first be tested through a series of pilots in different states and territories, in conjunction with those governments. We in federal Labor would take the opportunity to urge the government to put funding concerns first and foremost when considering the design of these pilots, and to work cooperatively with state and territory governments and court systems. It's imperative that these already struggling court systems are not pushed beyond the brink.

This bill we are currently debating comes in the middle of a period of intense change for the family law system. There is another bill currently in the House, also focused on the issue of family violence, which seeks to ban cross-examination of domestic violence victims by their perpetrators—it is a much-overdue bill, I would add, and has Labor's support. Of course, we are also shortly expecting the government to introduce a bill that will overhaul the Family Court system completely. The government has expressed an intention to merge the Federal Circuit Court and the Family Court and gradually phase out the Family Court as a specialist division. It also wants to abolish the appeals division of the Family Court and have that responsibility instead become part of the Federal Court. Labor is yet to see that legislation, and so we are reserving our position, but, as a general observation, it's important that in this time of great change for the family law system we tread carefully and deliberately, that in the general sweep of things we don't forget to examine the detail.

It's an obvious point to make, but family law, more than any other part of our court system, touches people's lives, often at their most vulnerable moments. Tinkering with that system should come with a great amount of care. Labor will ensure that we diligently scrutinise any and all of the changes that the government puts forward to our family law system. It's a responsibility that we take very seriously.