Louise Pratt (WA, Australian Labor Party, Shadow Minister for Environment and Water (Senate)) Share this | Hansard source

This evening I rise to contribute to the debate on the Family Law Amendment (Family Violence and Other Measures) Bill 2017. I was pleased to be part of the Legal and Constitutional Affairs Legislation Committee inquiry into this bill. Submitters to the inquiry noted almost overwhelmingly the worthy objectives behind this legislation, but they noted that there were still some significant and problematic aspects to it that should be resolved.

Firstly, as has been noted in the debate already, the question was raised about the fact that this reform is happening in a piecemeal way, without concern for the future findings of the Australian Law Reform Commission's review of our family law system. The resources are being taken up in implementing this legislation within the context of an urgent need for more change to our family law system—specifically, putting the needs of children first and enabling much faster access to justice. In addition, we know that family violence and child abuse, and the way those issues are managed within the courts, will also be incredibly important to the review.

In terms of the bill's provisions, there are significant issues in relation to PPIs. I note, for example, that the criminal penalties that would have applied to breaches of PPIs that were already in place have added a retrospective element to the bill, which is unacceptable to us. We, in this place, should all understand that parliaments should not pass retrospective laws. The citizens of this nation need to know the consequences of our laws before they make decisions. For this not to be the case is incredibly unfair and undemocratic. All of our citizens need to know the terms and consequences of our laws, which should not be retrospective.

So we can see in this situation the terms of existing PPIs, which are often reached by agreement and negotiation between the parties, would have, as we found in this legislation, been changed after they were made. We heard clear evidence and concern about this during the course of the inquiry. It is unacceptable for this to be the case. It would be an abrogation of the rights of both parties that have made these agreements, which were consensual, if criminal liability were to apply retrospectively to a breach of such an order.

This is not the only problem that has arisen with this measure. The new 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. The Tasmania Police, very clearly during the Senate committee hearings, said:

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.

I've seen numerous examples of this problem, not only within family law but also within breaches of privacy, breaches of technology privacy, online abuse and a whole range of other offences where it's quite difficult to engage state police in federal offences—postal offences and other kinds of things. I do not think that this kind of issue has been adequately addressed for us in this place.

The problem which this measure is trying to fix—which is the enforcement of breaches—may be unchanged due to the difficulties inherent in asking state and territory police to enforce this law. I'm very pleased to note that the Attorney-General's Department did, in fact, acknowledge that this was an issue to which a solution has not yet been found. To my mind, this completely underscores the reason we need the Australian Law Reform Commission to report. We need to work closely with the states and territories on how issues of family violence are policed so that we can embed their enforcement, be that under state or Commonwealth law, in an effective way so that we have confidence that breaches of those laws can be upheld. As I said before, the examples of state police not enforcing Commonwealth law are, to my mind, in terms of what I've seen since my time in this place, too numerous to name. Short of having an officer of the AFP in every police station around the country, I do not see that we have adequately resolved these issues. It's pretty incredible to me that this place should be put in the position of seeking to put in place an unenforceable law. It's important that the personal protection injunctions should be excised from this bill, and it's significant that the government has negotiated with the ALP on this point. We're going to have to continue, as has been highlighted by my colleagues, to work through those implementation issues.

I note that there's been significant support from many stakeholders in relation to independent children's lawyers and children's courts being able to make findings on behalf of children in relation to these issues. I personally think it's important that we see children's courts in Australia able to deal with these issues. They are often much better placed to deal sensitively with the needs of young people who are caught up in situations of family violence. I think it is a worthy measure within the bill that they have been given jurisdiction over these issues. I also believe, through the findings of the Senate inquiry, that we have missed the opportunity to participate in a holistic debate about this issue, because we don't know where the Law Council of Australia is up to in relation to the issues that it is currently deliberating on.

In relation to the dispensing with explanations regarding orders on injunctions to children, this evidence was before the committee:

Currently, if a court makes an order or injunction that is inconsistent with a family violence order, the Act requires the court to explain the order to the protected person, who may be a child. The bill would amend this provision, to give the court some discretion not to do so–or to exclude a particular matter from explanation, where it would be in a child's 'best interests'.

I was pleased to see that the department noted:

… this could be used to avoid re-traumatisation of a child who had witnessed or been a victim of family violence having to return to court to have a decision explained—

to them. It was clear that that measure had broad support in evidence, but a number of submitters made it very clear that it would normally be in a child's best interests to have an order explained in the vast majority of cases. I don't want to see Australian judges in a position where they use this capacity now within the law to not explain outcomes to children, because they've not generally been well equipped with the skills and training to undertake direct interactions with children and young people.

As the Law Council said in their evidence to the inquiry, we do not want to see this change in the law leading to:

… judges and court officials adopting a default position that avoids providing children with explanations of court orders and injunctions relevant to their safety and wellbeing because they consider that the children are 'too young to understand'.

These issues need to be dealt with sensitively by the courts. In order to do that I believe it will require a greater level of resources and training to be made available to our courts to be able to deal with these issues sensitively.

I note, for example, that Domestic Violence Victoria said they supported the amendment in principle, in relation to infants and very young children, but objected to it in relation to older children and young people, who have consistently told them that they feel disempowered in the context of family violence and frustrated by others speaking on their behalf. It was particularly significant, as raised by DV Victoria, that the royal commission in Victoria found:

… children and young people were noted as saying their experiences of the family court were unpleasant, and that it was a space in which they felt ignored.

What we need to see is a sound basis for which judges or courts opt out from explaining decisions to children. It has to be made based on a developmental assessment made by an appropriately qualified professional, and, in the case of First Nations children and their best interests, other considerations also need to be taken into account, including: their relationship with a broader set of family members, such as grandparents; their right to enjoy their Aboriginal and Torres Strait Islander culture; and their right to share that culture with other people.

I note that the department found that there was broad support for the measure in most of the submissions, but it's important, I believe, as does Labor, to make sure that it is applied in only very specific and limited circumstances and that it does, as the department says:

… strike an appropriate balance between ensuring that judges do not dispense with an explanation lightly and avoiding an excessive burden on judges to consider an extensive range of matters in making a relatively confined decision.

I hope that the government takes those issues on board. Key to that in particular is more resourcing for our courts, to make sure that they can deal with issues of family violence sensitively.

We have also expressed concern in relation to time limits. The bill removes the 21-day time limit on parenting or related orders made by state and territory courts, including where they're revived, varied or suspended when making an interim family violence order. We can see that it was broadly supported in evidence by organisations such as Victoria Legal Aid. They noted, for example:

…it would be particularly beneficial in regional areas where courts may not be able to offer another hearing for parties within a specific period.

However, we can also see that the Law Council and ATSILS in Queensland expressed considerable concern that this may lead to parents and children being separated for longer periods of time than they otherwise would have needed to be because the court has been delayed in making that decision, because it's interpreted by the court as a status quo parenting arrangement.

I know I don't need to stress the point of how overwhelming the impact of being before the family courts and waiting for a parenting decision is. But we need to make sure that these provisions are exercised, most importantly, in a way that puts children's interests first. I note that the department, at the time, disagreed in evidence:

… the 'change to any 'status quo' parenting arrangement is only one of a number of additional factors which a judge must consider'.

The department also noted:

… there was an intention to provide the state and territory magistrates with information so they would fully understand the operation of this amendment.

However, Labor's concern around this issue was ultimately that we should be able to review these provisions in the future to ensure that they are working effectively.

Our recommendations, within Labor, in addressing this—and we look forward to putting pressure on the government to make sure that these issues are resolved—are indicative of our approach in government. First of all, there's got to be appropriate funding and increased resources and continuing training to accompany these measures, particularly the measures that expand the jurisdiction of state and territory courts. Second:

That a review be undertaken after the summary dismissal provision amendments have been in operation for a period of two years—

and, third—

That the provisions criminalising breaches of personal protection injunctions be excised from the Bill and the intent of those provisions revisited as a matter of priority as soon as the Australian Law Reform Commission review of the family law system has released their report.

I thank the chamber for its consideration of these important issues.