Parliamentary speeches

Federal Circuit and Family Court of Australia Bill 2019

November 30, 2020

I rise to join my Labor colleagues in opposition to this bill and in support of the second reading amendment moved by the shadow Attorney-General, the member for Isaacs. In thinking about this legislation and the excellent contributions of my colleagues on this side of the House, I have also been thinking of that great Australian historian, Manning Clark, who saw our history as a contest. He saw it as a contest between 'enlargers' and reactionaries—he called them 'straighteners'—and I think we see that echoed in this debate. I think it is important that we reflect on its significance because Australia has been, in so many ways, an exemplar to the rest of the world when it has come to social policy—economic policy too, but particularly social policy. Indeed, when our Federation first began, we often saw Australia described as the 'world's social laboratory' over initiatives like the aged pension, where we led the world. That's been a tradition which has characterised the work of Manning Clarke's enlargers, who we would see as being the people who've made up Labor governments—and the social movements that have supported them—for the last 120-odd years.

When I think about enlargers in the context of Australian history, obviously the figure of Gough Whitlam looms very, very large—literally and figuratively. Gough Whitlam was a great enlarger, a great Australian and a great reforming Prime Minister. The reforms of his all-too-short government have done so much to characterise what is so good about modern Australia: our place in the world, how we have ordered our society. In so many ways he was a reformer—from that iconic image of him and Vincent Lingiari that's in the National Portrait Gallery to his sense of our future as a trading nation, if we look at other debates that are on foot now—ripping apart 23 years of stultification under conservative governments, governments of straighteners, to replace them with a sense of what we could be: a much more equal society. Of all of those social reforms, the Family Law Act is both enduring and fundamental. It is a signature reform. It is also a cornerstone, I think, of both a more equal and a more caring society.

We have seen that in the last 45 years in establishing two critical frameworks for how we manage family law. Firstly, the provision of no-fault divorce. It is impossible—perhaps for many of us here—to understand what life was like for many people before there was no-fault divorce. It has transformed society, recognising that relationships are, of course, formed between human beings with all their fallibilities and vulnerabilities. This goes to the second pillar of the Family Law Act, which was to put in place the family law court—a specialist court to understand those vulnerabilities, those challenges, and to put in place all the mechanisms to see disputes, or other issues between families and those involving children, dealt with appropriately. These reforms have transformed lives for the better. They've transformed our society for the better too. We should not treat them lightly. Unfortunately, the legislation that is before the House does that. It treats these reforms, and the lives that they have shaped, too lightly.

I want to go back to this sense of how reform is made and how it is resisted, because the reform journey clearly isn't complete. We are not as prosperous or as equal as we should or could be as a society. That continues to be the responsibility of government and it will be the work of an Albanese Labor government. We will keep fighting for the reforms that have been achieved against those reactionary forces in this parliament and in our society who seek to push back against them. We don't believe that our reformist history is written. I think about the bold commitments the leader of the Labor Party made in his budget reply speech, building on this tradition from the aged pension to the NDIS with reforms flagged around early learning and child care—which would be signature social and economic reforms that are all too overdue—and, of course, also to do the work that was asked of us—all of us in this place—by the Statement From the Heart, to complete this parliament and complete our constitution.

In terms of the bills that are before the House, I want to touch upon a couple of questions that go to both process and substance. Both are important here. They underscore the characterisation of this government not so much as straighteners but as out and out reactionaries. I have before me a letter dated 29 November which is signed by number of very significant bodies: the Law Council of Australia, Women's Legal Services Australia, NATSILS—the National Aboriginal and Torres Strait Islander Legal Services—and Community Legal Centres Australia. It's a short letter, but it's a very powerful one that demands the attention, I believe, of every member of this House and all those in the other place, should the legislation make its way there.

First and foremost are the contributions of Elizabeth Evatt and Alastair Nicholson, the first and second Chief Justices of the Family Court. The Hon. Elizabeth Evatt AC, in talking about her strong view that the merger would lead to undesirable outcomes for children and families, said:

The Family Court was designed purposely as a world-leading, specialist, stand-alone Court to deal only with family law matters, with the support of a dedicated multi-disciplinary team of counsellors and mediators. Its stand-alone nature is one its greatest attributes, providing protections for vulnerable people in need of family law assistance.

She goes on to talk about how merging this court with all those critical features would undermine both its integrity and the structural specialisation of the court. She says:

The impact of losing this institutional specialisation is not properly understood, and has been downplayed.

This is a really critical warning.

My friend and colleague the member for Griffith raised this issue in referring members opposite to the Australian Law Reform Commission's very significant report handed down only last year. It's a significant report containing 60 recommendations. It's a significant report which identified significant challenges in our family law system, largely linked to chronic underinvestment—not a matter these bills will deal with, not a matter the government has responded to and not a matter the present Attorney-General seems concerned about. This is a really big bit of work, a substantive bit of work, looking at the challenge that is before Australia's government when it comes to having a family law system and the judicial infrastructure that supports it and that does justice to the needs of all Australian families—the partners, their children and their particular vulnerabilities, as many of my colleagues touched upon.

This is incredibly complicated and incredibly important. For all of us who have entered into marriages or lifelong partnerships, it's the most important decision we make. Having a specialised justice system that deals with that and deals with the most important people in most of our lives, our children—for those of us who are fortunate enough to have them—gives them the support that they need. These are fundamentally important things. I am sure every member of this place agrees with that. That is why it is so astonishing that we haven't seen a proper debate in this place and we haven't seen a proper or, indeed, any evidence of any consideration of the Australian Law Reform Commission's report.

This takes me back to the warning of the Hon. Elizabeth Evatt. The impact of losing this structure, she says, is not properly understood. I think members opposite should reflect and ask themselves this question: do I properly understand the implications of the change that is before the House? If they can't answer that—frankly, they should be answering that not to their conscience but in words that appear in Hansard tomorrow—they should vote against these bills. They should vote against these bills because the case has not been made. Indeed, more than that, the case against acting in this manner is incredibly persuasive.

I talked about particular vulnerabilities, to note an additional concern, and I know this is another concern that unites all members of this place. Evatt goes on to say:

The increasing number of cases in which issues of family violence and child abuse are raised has led to an even greater need today for family law jurisdiction to be vested exclusively in specialised judges who can give their full attention to the needs of family law clients without being diverted to exercise other unrelated jurisdictions. The current bill undermines this principle, is not in the public interest and should not be enacted.

This is a very, very serious warning. Before I came to this place, I practised as a lawyer. I did not practise in the area of family law, and I don't presume to have any speciality in this area. But I worked alongside many colleagues who did, and I understand how important it was for them to be specialist practitioners within a specialist jurisdiction. They understood that they could build confidence in their clients, particularly those clients with vulnerabilities, in a system that was designed to meet their needs, not the more adversarial needs of our common law courts more generally. I think this is something that we should reflect on.

I think about how public policy should be made. Really there are two issues that should inform those of us in this place when we consider legislation, particularly significant legislation like this. Firstly, we should look at the evidence—and there is no evidence supporting these bills. We should also try to give voice to the experience of those most affected by the bills. I will refer to some of those things, but I want to make a brief reflection on the basis of the understanding I have from organisations and community law centres in my electorate and around it. They all speak with one voice. They do not support these bills. They see the bills as undermining the vital work they do in protecting vulnerable children and in protecting victims-survivors. These are matters again that members opposite, members on the government benches, should give serious consideration to before they cast their vote.

I have spoken about the contribution of Elizabeth Evatt. I want to also now touch on the contribution of her successor, the Hon. Alastair Nicholson, the second chief justice. He expressly endorses her remarks and her view. He said:

It is unbelievable that Government would propose the dissolution of a Federal Superior Court in this fashion without the most careful and searching Public Inquiry and without carrying out significant research and without consulting the many experts in this field.

This is again a very striking contribution from someone who should be listened to. He asks a very fundamental question. This is fundamentally important legislation. It would interfere with a cornerstone of not just our legal framework but how our society has been operating. It is being done without recourse to expertise, without recourse to public submissions and without recourse to any of the processes that should underpin significant reform. This is not how our society is enlarged—far from it. This is an exercise of unthinking reactionary nature.

These two chief justices are far from alone, as I think my comments have indicated. There is an open letter signed by 110 stakeholders. These 110 people deal every day with the challenges that present themselves in the family law system and all its complexities. These people are of one mind, as we on this side of the House are. These are retrograde changes. This is flawed legislation. It's unclear what it emerges from, because all the ordinary processes of government would lead the Attorney-General and members opposite to a very different set of conclusions.

Pauline Wright says, 'This is a terrible gamble with the lives of children and families.' I say again 'a terrible gamble with the lives of children and families'. In this place we differ on so many things—how we see the world and the role of government—but I'm sure none of us want to be seen as gambling with the lives of children and families. Yet that is precisely what anyone supporting these proposals would be doing. They would be supporting a massive leap into the unknown. It's not even that. This leap is more than inadvisable; it is profoundly wrong and profoundly unacceptable.

The comments I have referred to are echoed by so many more. Indeed, the dissenting report of Labor senators sets out this story well in short terms. They use the same word three times—neglect, neglect, neglect. That is the record of this government entering into its eighth year. It doesn't have an answer to the problems in the family law system so it seeks to do something to compound the problems. What we need is a government that will enlarge—not this government.