Helen Polley (Tasmania, Australian Labor Party, Shadow Assistant Minister to the Leader (Tasmania)) Share this | Hansard source

This bill, the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill, reflects a change to the Family Law Act which Labor has been calling on the government to make for some time. It's hard to believe that in 2018 family-violence survivors are still sometimes required to endure cross-examination conducted by their own abusers. It seems unthinkable, but it happens. According to an Australian Institute of Family Studies report published in June 2018, 173 survivors were directly cross-examined by their abusers in family law matters over the course of two years. But that number likely disguises the much larger number of women who, faced with the possibility of direct cross-examination, choose to settle in order to avoid it, often with suboptimal outcomes. It's hard to put into words how horrific an experience it must be, to have the person who has inflicted hurt and pain on you question you in front of others about that very experience. It is a tool perpetrators can and have used to inflict fresh pain and trauma on survivors. It should have stopped a long time ago. It's an outrage that it continues.

Before the 2016 election, Labor pledged to change the law so that this horrible practice stops happening. We also pledged $43 million in funding for Legal Aid, over four years, to provide legal representations during hearings to prevent direct cross-examination from being necessary. Our party leader committed Labor to that policy on White Ribbon Day in November that same year. It was then and it is now an initiative I am very proud of. It was something that needed to happen. As the member for Maribyrnong said in his speech two years ago:

This is trial by ordeal. It is an added indignity, a further injustice, inflicted by the abuser who has already done enough damage. Cross-examination in family violence by unrepresented perpetrators is a re-injury. It is new harm on top of the old …

And we can put a stop to it.

Labor's policy would have compelled judges to first consider whether appropriate protection should be put in place during cross-examination of domestic violence survivors and, if available mechanisms were insufficient, to impose a ban. Labor has led the debate on this issue, and thankfully, finally, the government has followed. The government has produced this bill, the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill, which imposes an automatic ban on direct cross-examination of family violence survivors by their perpetrators. This automatic ban applies where there is evidence or allegations of family violence between the two parties in a family law matter.

The ban will automatically be imposed if certain conditions are met. If there is an allegation of family violence between the two parties and either party has been convicted of or charged with an offence involving violence or threat of violence to the other party, then the automatic ban will apply. Similarly, if a family violence order applies to both parties or if an injunction is in place for the personal protection of either party, the automatic ban will apply. Of course, there could still be serious family violence in play, even if none of those conditions are met. In that case, the court still has the discretion to impose a ban if it is deemed appropriate, and, if a ban is not imposed, the court will be required to apply other protections for the victim such as video link or screens during cross-examination.

In cases where the ban is imposed, unrepresented parties will be directed by a judge to obtain representation either through Legal Aid or through private funding. This includes both survivor and perpetrator. If either party cannot obtain or refuses to obtain legal representation, no cross-examination can take place.

This bill was put through the House ahead of any funding for Legal Aid being announced, which Labor objected to on the basis that it was premature. However, we are pleased to hear that a deal has in fact been struck with Legal Aid of $7 million over three years, commencing 1 July next year. Although this is substantially smaller than Labor's commitment, and Labor remains sceptical that the amount will be sufficient, we accept that National Legal Aid has expressed satisfaction with this amount. We continue to believe, for instance, that the current numbers of instances of victims facing cross-examination by their abuser are an underestimation, given many women are likely to choose to settle rather than face such an ordeal.

There is a two-year review written into this legislation, which will be a welcome test of the adequacy of this funding. Should that review show that $7 million over three years does not stretch far enough, the government of the day must commit to addressing this shortfall. It is well known that Legal Aid services across the country are stretched to their absolute limit. National funding levels are forecast to increase less than five per cent in the four years from 2014-15 to 2019-20. This is barely enough to keep up with demand.

Wherever I go around the country, I always make an effort to visit Legal Aid commissions and community legal centres and let them tell me of the issues that they're facing. Let me tell you, there is nothing left in the tank. That's what I get told, and I hear that regularly. National Legal Aid gave evidence at the inquiry into this bill. They said:

If new funding is not made available to support the scheme, legal aid commissions would be unable to provide legal representation outside existing legal aid funding.

Legal Aid commissions operate within an already stretched funding regime and strict guidelines that prioritise those in our community who are the most vulnerable and in need of assistance. In August, the opposition leader and deputy leader wrote to the Prime Minister urging him to step in and act on the funding that is missing from the bill that we are currently debating. I will read a few lines from that letter:

… as a matter of urgency, we are asking you and the Attorney-General to provide a guarantee of funding before this bill is put to the Senate for a vote.

This is fundamental to making the reform worthwhile.

We have often attended events together where we've both spoken of the need for parliament to do more to eliminate the scourge of family violence from our national life and to deliver better services and resources for survivors and their families.

It's a policy area we all care deeply about.

By allocating a small sum of money alongside an overdue reform, we have the opportunity to make a difference as soon as parliament resumes.

So let's get it done.

Protecting victims of family violence is not a second-order matter for this parliament; it is one of the most important things. With this bill today, although it has taken far too long, we are a step closer. I commend the bill.