Nov 26, 2018

Federal Circuit and Family Court of Australia Bill 2018, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 – Second Reading – Monday, 26 November 2018

Mr ALBANESE (Grayndler) (17:04):  I rise to speak on the Federal Circuit and Family Court of Australia Bill 2018, which, if successful, would see the Family Court of Australia, essentially, abolished. This bill comes without any real consultation, a pattern that we have become used to seeing from this coalition government, a coalition government that decides policy on the spur of the moment, that doesn’t consult properly and that doesn’t think issues through. This is a government that, each and every day, searches for something that it can dismantle or destroy. That’s because it is a government with no ideas. It is a government that is frightened of the present but terrified of the future, a government that is liberal in name only. It is a government that is certainly not even conservative, because conservatives support institutions in our society. This is a government that undermines institutions, that is prepared to rip up decades of what have come to be seen as normal processes in which people have rights as well as obligations. The problem is the reactionary ideology of those opposite coupled with a lack of preparedness for government. When the member for Warringah, Mr Abbott, took office in 2013 he did have a plan to get rid of Labor. He certainly didn’t have a plan to govern. He defined himself by what he was against, not what he was for. Likewise, Malcolm Turnbull had a plan to get rid of Mr Abbott as the Prime Minister.

The DEPUTY SPEAKER ( Mr Howarth ): Order, you’ll refer to members by their correct title.

Mr ALBANESE: But he also had a plan—


Mr ALBANESE: Yes, yes.

The DEPUTY SPEAKER: Thank you.

Mr ALBANESE: He also had a plan to govern, and instead possessed—and you would know, because you’ve been a part of supporting the overthrow of prime ministers, Mr Deputy Speaker Howarth—and when Malcolm Turnbull was—

The DEPUTY SPEAKER: Order! I’m in the chair. Don’t reflect on the chair, please. Just stick to the bill, thanks.

Mr ALBANESE: You sought to intervene in the debate, Mr Deputy Speaker.

The DEPUTY SPEAKER: I just want you to refer to the member for Warringah by his correct title.

Mr ALBANESE: And I have done that. He is the former Prime Minister, and Malcolm Turnbull is just Malcolm Turnbull.

The DEPUTY SPEAKER: No, sorry.

Mr ALBANESE: Malcolm Turnbull is just Malcolm Turnbull.

The DEPUTY SPEAKER: The shadow minister referred to Malcolm Turnbull and then referred to Mr Abbott. Mr Abbott is still a member of the House and he’ll be referred to as the member for Warringah.

Mr ALBANESE: Malcolm Turnbull, the person who was removed by people, without proper process, people who were prepared to go into the caucus room, as David Speers outlines in his book, OnMutiny. If people aren’t proud of their achievement in removing elected prime ministers, I’m not surprised, because that’s what characterises why this government have a problem with policy direction and why they come up with legislation to effectively abolish an important institution, the Family Court of Australia, without proper process, without thinking through the implications, for women and children in particular, of such a measure. The fact is that the new Prime Minister can’t even explain to parliament why he, rather than Malcolm Turnbull, is in that job, much less what he stands for.

The bill before us today would see the most significant changes to the Family Court system since it was established by the Whitlam government in 1975. The Family Court is a proud Whitlam legacy. Like most of the great reforms that have occurred in this nation, it is a Labor legacy, a Labor reform making a difference to the power relationships in society, transferring some of the power that existed prior to 1975 with men in relationships to women and children. That’s what the Family Court’s creation was about—to be something that made a big difference; something that reactionaries wouldn’t work out why it’s a problem, that it would simply be dismissed.

As part of Gough Whitlam’s focus on contemporary relevance, these reforms sought to bring the laws governing this nation in line with the reality of life in 1970s Australia and beyond. It also included, of course, no-fault divorce, which prior to then didn’t even exist. Prior to then, we had outrageous legal action in the courts of Australia, where women in particular were vilified and put through incredible trauma as a result of nothing other than the power relationships which existed in society and which were ratified by the court at that time.

That’s why this debate is important. This bill has been slammed by the sector, which is understandably furious about the lack of consultation beyond the Chief Justice of the Family Court and the Chief Justice of the Federal Court. Indeed, the president of the New South Wales Law Society had this to say:

… the government should be condemned for going through what is clearly a sham consultation process. … You don’t do this sort of thing on the run.

The president of the Law Council of Australia said this:

We owe it to the people caught-up in the family law system not to give the most significant court changes since 1975 a mere cursory glance, or a simple tick-and-flick

And the president of the New South Wales Bar Association said:

There should be no indecent haste to attempt to ram through the Parliament proposed legislation that should be carefully considered and assessed based on evidence.

The fact is that when the experts themselves are telling you that you have it wrong then you’re wrong. The government would be wise to listen to these leading legal voices who don’t want to see this policymaking on the run.

The fact is that these reforms are significant. They would fundamentally change the way that families, lawyers and advocates interact with the family law sector. The bill before us won’t solve the present-day problems in the Family Court. There are unacceptable delays and backlogs which only add to the pain of those caught up in the system, but much of this backlog is a consequence of inadequate funding for the court system, inadequate funding for legal assistance services and the failure of the former Attorney-General, George Brandis, to appoint replacements for judges as they retired.

We know this because former Family Court Chief Justice, Diana Bryant, has called on the federal government to boost funding. The former Chief Justice told the ABC:

… while overall delays in the Family Court were about 17 months from filing to hearing, some people have to wait up to three years to get their case to trial.

That is three years of stress for everyone involved—parents and children. As former Chief Justice Bryant said:

There are very vulnerable people caught up in the system and at the moment we are powerless to do a lot about it. … I feel as though the Government doesn’t understand the effect this is having on families.

This bill won’t fix any of these problems. What it will do instead is end specialist expertise in Family Court matters, handing all family law matters to the more generalist Federal Circuit Court. While the Federal Circuit Court currently handles a large number of these cases, the most complex cases are reserved for the Family Court. This court is presided over by specialist judges with appropriate experience, which is why these cases can take longer to resolve. It certainly is not a reason to get rid of the court altogether. The government also wants to abolish the specialist appeals division of the Family Court and hand that function to the Federal Court instead. That is in spite of the fact that the Federal Court has never handled family law before.

Now, this government is trying to ram these bills through before its 1 January 2019 deadline. Firstly, it tried to restrict the time given for submissions to just three weeks, for bills that are nearly 500 pages long. Then, after the Senate inquiry period was extended, with the report date due on 15 April 2019, the government tried to rush the process, forcing a Senate committee vote to change the reporting date back to 26 November 2018. At the time, the Deputy Clerk said that even with the committee’s resolution the bill cannot be put to the Senate for debate until after the 15 April 2019 date that has been set by the Senate. Thankfully, common sense has prevailed and the government has dumped its idea to have reporting before the end of the year, but even now the coalition is trying to rush the bill through the lower house even though it can’t go through the upper house until after April of 2019. It makes no sense at all.

It is just the latest example of a government that acts increasingly like an opposition in exile on the government benches. They’re not worthy of being ministers. They’re much more comfortable with being opposition spokespeople, because they’re defined time and time again by what they’re against. The only thing that they’re in favour of is various factional manoeuvrings on their front and back benches to try to manoeuvre different people into the highest offices of the land, including prime ministerships and deputy prime ministerships, and we’ve had three people in each of those positions. I now, as the shadow minister, have shadowed no fewer than nine different infrastructure or urban infrastructure ministers in the last five years. None of them can get on top of their brief before they’re replaced. That’s why you have this extraordinary circumstance whereby, even when this government has legislation it’s putting forward before the House, it’s not legislation in favour of something; it’s legislation which is against the parliament.

On this bill they actually had two speakers who participated along with over a dozen members from this side of the House. Next we have the Social Services Legislation Amendment (Housing Affordability) Bill 2017, on which there are eight speakers from the opposition and none from the government, and then we have the Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018, on which there are 20 speakers from the Labor Party and one from the government. The fact is that this government has abandoned its responsibility to promote appropriate reform, to legislate, to make Australia fairer, to promote consensus and to ensure that the parliament represents the many and is not monopolised by the concerns of just a few.

But this bill is consistent with the coalition’s business model, which is one of division. Instead of working with institutions, they want to tear them down. They aren’t interested in listening to experts. They aren’t interested in working in partnership with the community. That’s why we see this flawed legislation brought before the parliament to undermine and abolish an organisation that has done work since 1975. There they have been for the better part of half a century, doing this work. They have been starved of funds, they have been starved of appointments to the judiciary and now they’re saying the solution to that is just to get rid of it completely. The coalition might think it’s fine to get rid of prime ministers on a whim and to get rid of deputy prime ministers on a whim, and we can’t do anything about what activity coalition members engage in with that, but we can oppose the abolition of this court, and the fact is that the government is out of ideas and out of time.

What they should do is call an election. We heard today in question time the Prime Minister outline why, indeed, the Victorian state election result was a good one for the coalition. If that is the basis of their logic then they should, indeed, put themselves and the nation out of their misery, allow people to have a say on issues such as this and have a government that has a positive agenda.