Domestic and family violence in Australia constitutes a national crisis. The Commonwealth can and must do more to provide better, safer outcomes to women and children who experience (or are at risk of experiencing) violence.
Labor Senators accordingly support the stated object of this legislation, which is to ensure 'greater protections for vulnerable Australian families'. Unfortunately, the approach taken by the government in preparing this bill runs the risk of undermining its stated intention, and introducing new threats to the safety of vulnerable women and children.
The government failed to properly consult in developing this bill
It would be usual practice for the responsible department to engage with family lawyers, the courts, advocates and experts in preparing a complex policy intervention of this kind. When questioned about this in the public hearing, the Attorney-General's Department referred the committee to consultation that had occurred years ago about a different piece of legislation.
Labor senators asked stakeholders appearing at the public hearing if they had been consulted in the drafting of this bill. None had. The first notice many had of this bill was when it was introduced into parliament on 24 March this year.
There appears to be no good reason why proper consultation did not occur.
Labor senators would be concerned if the Morrison government rushed the development of this policy and the introduction of this bill for political reasons. Interventions into the family law system have the capacity to have very real impacts on ordinary people's lives. This is particularly the case with legislation such as this bill, which directly concerns safety.
Recommendation
The Attorney-General's Department should develop internal protocols to ensure adequate consultation is undertaken on legislation that may impact on individuals' safety.
The failure to consult was not benign – it has infected the design and effectiveness of this legislation
If the government had undertaken a proper consultation it may have identified some of the serious problems identified by submitters to this inquiry.
It is unfortunate that the government has tabled and already congratulated itself for a bill which has an astonishingly long list of real problems that were obvious to submitters who understand this area of the law.
The drafting of this bill left many crucial details uncertain. This impacted the ability of experts and advocates to advise this committee. The Law Council of Australia (Law Council) noted:
[the] difficulty of commenting sensibly upon a significant or what may be a significant reform in circumstances where we just don't know how it is proposed that it will be implemented and what that will be like for our clients.
They were far from alone. The Legal Services Commission of South Australia noted 'concerns we have that are not clear from the legislation as proposed'. The Women's Legal Service explained as follows:
Senator McALLISTER: Based on the information provided to you so far, do you feel confident that you know how this regime will practically operate if enacted?
Ms Matthews: I don't feel confident of that. What we are looking at is a proposal for the process of implementation and what is necessary for the states to pick it up and make changes about it. It is to happen in the future. Whether or not there is sufficient time and consultation for this to happen effectively in the time frame envisaged is something that we're not confident about. Also, in this process, while certainly we've had the opportunity because of this inquiry to make comment on the legislation, it's not something that we were consulted about previously, so I'm not aware of what level of consultation the Attorney-General's Department, for example, may already have undertaken with state counterparts or state law enforcement [emphasis added].
Labor Senators observe that the written submissions made to this inquiry contain a far larger number of questions about the operation of the legislation than is usual in inquiries of this kind.
The uncertainty embedded in this bill does not just impact the capacity of this committee to carry out its important oversight function effectively – it impacts the intended users of the orders whose safety this bill purports to protect. The Law Council told this inquiry that '[a]ny clarity that can be given makes for better legislation. Uncertainty is ultimately not helpful for the very parties that we want to protect: the women and the children'.
The issues with this bill have been summarised at [2.5] in the majority report above. They include:
the lack of interim federal family violence orders (FFVOs);
complexities and inconsistencies between state and territory and federal orders;
concerns about the misidentification of perpetrators and systems abuse;
the workload, resourcing and training implications of the bill;
the role of resourcing for Independent Children's Lawyers (ICLs); and
the accessibility of FFVOs for applicants based in regional and remote areas.
During the course of the public hearing, Labor senators requested that the Attorney-General's Department provide a supplementary submission addressing the multitude of concerns raised by the submitters to this inquiry. We thank the department for their work in preparing this document. It includes responses to many, but not all, of the issues raised by submitters in their written and oral evidence to this committee.
Whilst Labor senators are pleased that the department has been able to at least answer some of the questions raised by stakeholders, a supplementary submission to a Senate inquiry is not capable of formally remedying the deficiencies in a piece of legislation.
Labor senators note Recommendation 1 of the majority report that:
the federal government works with stakeholders, in particular state and territory public prosecutors, legal assistance providers, and state and territory law enforcement agencies, to ensure that anticipated complexities and potential inconsistencies arising from the concurrent operation of federal family violence orders (FFVO) and state and territory protection orders are resolved prior to implementation of the FFVO scheme, that is, after the bill is passed but before the relevant provisions of the Act come into force [emphasis added].
We believe this is too late. This recommendation is contrary to the evidence provided to this committee by submitters with expertise in this area of law and its practice from across the nation.
The Law Council urged the government to amend the bill, noting: '[c]lear legislation and addressing the many uncertainties that we still identify is what we should be aiming for'.
Labor senators had the following exchange with witnesses from the Women's Legal Service:
Senator McALLISTER: Would this bill, as it's currently drafted, deliver safer outcomes for victims of domestic violence and their kids?
Ms Matthews: That is one of our concerns; there are some gaps in the legislation which might mean that that is not the case.
These 'gaps' include the possibility of the uncertainties in the law as drafted endangering women and children. Multiple submitters have raised concerns about systems abuse and victim misidentification. The Law Council warned in their opening statement that:
…that the Bill may create opportunities for perpetrators of family violence to delay determination of family violence issues. A perpetrator adopting an adversarial approach may seek to increase the number, length and cost of family law or family violence proceedings through an additional FFVO pathway at the federal level.
Labor senators believe the government must move amendments to remedy as many deficiencies as possible prior to the passage of this legislation. Vulnerable families, overworked courts, police, social workers and lawyers should not be left to bear the consequences of the government's rushed and flawed policy development processes. Without significant amendments this legislation may place those at risk or who are suffering from family violence in greater danger.
Recommendation
The bill be amended by the Government to address the key concerns set out in para 2.5 of the majority report before the bill is passed.
More funding is needed to make this legislation workable
The evidence to this committee has been clear – without funding for lawyers, courts and the police, this bill will struggle to achieve its stated objectives. Relationships Australia noted that without proper resourcing, there is a substantial risk that the orders will not be enforced in practice, 'rendering illusory the protection they are intended to provide to vulnerable people. People are endangered by such illusions'.
Witnesses made clear the consequences if the government failed to adequately fund training for the police:
Senator McALLISTER: Mr Weber, you spoke a lot with Senator Waters about the need for training and funding for training. Do you have any observations to make about the consequences for women's safety if that funding is not delivered?
Mr Weber: What will occur is that we put families at risk and also put police at risk. We can't do a proper risk assessment if we don't have all the information. Also it's critically important that we serve the orders correctly. If they have to be in person, certain procedures have to be done. When we're serving such an important document that offers protections to families in a hostile and violent situation we want to make sure it's done to the letter of the law because, if we have to take action at a further stage, we want to make sure that there are no technicalities or points of law that could be raised against us. It's critically important that there's appropriate training and it's implemented over a period of time, where all police officers can be correctly informed how to execute the legislation and make sure it is appropriately served on the defendants, and then it is properly used across the country.
The Legal Services Commission of South Australia highlighted the impact on legal aid and other legal assistance services:
Ms Canny: So we are very concerned about that impact on our budgets, and we haven't been consulted as to what that impact might look like.
Senator McALLISTER: What would be the consequences for women's safety if those budgetary issues aren't addressed?
Ms Canny: We will have to ration our funding, in the sense that we'll have to decide which matters have the highest priority, because if you have limited funds then you've got to make those difficult decisions. Under our funding agreements, children always have the highest priority, so it may be that we will prioritise independent children's lawyers' appointments above party-party appointments. They're the sorts of decisions that each of the legal aid commissions will have to make in their own state or territory, and then that would impact on the number of self-represented parties before the courts.
The Law Council gave evidence that 'resourcing constraints have made it difficult for the court to be as responsive to serious family violence matters as it would like to be'. It added:
It is critical that the Government engage closely with the courts and legal assistance bodies to ensure that these measures are accompanied by adequate resourcing for the courts, their support services, and the legal assistance sector, to cope with the additional workload we envisage will arise should the federal FVO regime come into effect.
As was noted by one submitter:
We note that the family courts are courts with very heavy workloads. We are very well aware that a provision along these lines may well increase that workload, so we would support calls made by other submitters to ensure that the courts, police, prosecutors and legal assistance providers are all appropriately resourced. One of the worst things that could happen after implementation of this bill would be for its protections to become illusory because no-one who was charged with responsibilities under it had the resources to enable that to be given effect to.
We have seen the impact of under-funded programs on families. The Cross-examination of Parties Scheme introduced in 2018 has, despite multiple warnings to the government about the inadequacy of its funding, exhausted its funding on multiple occasions, leaving parties stranded with no legal representatives and unable to have their matters finalised before the court.
Recommendation
The government commit to providing the funding needed to allow courts, lawyers and police to properly implement the reforms embodied in this bill.
The Government needs to deliver on its broken promise to develop a national safety information sharing portal
Throughout this inquiry submitters have emphasised the importance of a national database or system that allows information sharing between state, territory and federal jurisdictions. As the Police Federation of Australia noted:
I think every single month and every single day we find a new reason to communicate better and exchange ideas and put that database up.
One of the Commonwealth government's commitments under the current National Action Plan (which commenced in 2019) was to commence development of a national technology solution to support information sharing between courts and across jurisdictions. This solution was supposed to allow the exchange of child protection and family violence systems. It would be an important institutional support for women and children's safety.
The Morrison government has failed to meet the deadlines it set itself in delivering this system. It has failed to even deliver the scoping and costing study that was supposed to be finished last year.
Recommendation
The government should urgently release its proposed timeline for development of a national technology solution to facilitate sharing of child protection and family violence information.
Senator Jenny McAllister
Senator for New South Wales