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Who will rule the law after 9 October 2004?

Cover Story

Cite as: (2004) 78(10) LIJ, p. 18

The LIJ gives federal Attorney-General Philip Ruddock and shadow Attorney-General Nicola Roxon the opportunity to speak directly to Victorian solicitors.

By Attorney-General Philip Ruddock

On 9 October Australians will go to the polls to decide who governs for the next three years. While the election will be fought on a range of issues, for Victoria’s almost 11,000 solicitors there is a special interest in the views of the nation’s Attorney-General and his Shadow. Philip Ruddock is a new Attorney-General in an experienced Liberal government. He took over the job exactly a year ago from Daryl Williams. A Labor win at the polls would see former Victorian solicitor Nicola Roxon become the country’s first female Attorney-General. The LIJ gave both Mr Ruddock and Ms Roxon the opportunity to speak directly to Victorian solicitors. In response, Mr Ruddock has focused on the government’s family law policy and Ms Roxon has broadly outlined her party’s legal affairs platform.

For more information on the Liberal Party’s policies, go to http://www.liberal.org.au. For more information on the Labor Party’s policies, go to http://www.alp.org.au.

Speech by Attorney-General Philip Ruddock

One of the most important community issues which will have an effect on the legal profession is proposed reforms to the family law system.

A significant proportion of Australian families are affected directly or indirectly by conflict, separation and divorce. It is an important community issue.

The government recognises that some members of the community have become disillusioned and disheartened with the family law system in Australia, particularly in relation to child custody arrangements.

Although it is often impossible in family breakdowns for parents to resolve their dispute reasonably and amicably, families should be able to access help when it is needed. We need to provide families with better ways to resolve relationship disputes and to reduce the emotional costs for families and children of conflict and separation. There should be services available that help families avoid separation such as pre-marriage counselling and on-going help in dealing with relationship difficulties. The government is strongly committed to improving outcomes for separating and intact families and ensuring that the focus is on the best interests of the children involved.

On 29 December 2003, the House of Representatives Standing Committee on Family and Community Affairs (the Committee) tabled a report entitled, Every Picture Tells a Story (the Report). The Report focused on the importance of reducing conflict between separated parents and on separated fathers having greater involvement with their children. It emphasised the need for practical steps to reduce parenting disputes.

The Committee’s recommendations were considered carefully by the government and on 29 July 2004 the Prime Minister announced proposed changes to the family law system that implemented most of the Committee’s recommendations.

The proposed reforms, when implemented, will be the most significant changes to the family law system since the commencement of the Family Law Act 1975. The reforms will encourage families to resolve their disputes without the need to revert to adversarial court processes and before conflict becomes entrenched. Counselling, mediation and similar services will be greatly expanded. The law will be changed to promote the meaningful involvement of both parents in their children’s lives. Shared parental responsibility will be the starting point in most litigated disputes.

Overall, the system will be easier, cheaper and less traumatic.

Family Relationship Centres

The government proposes to establish 65 new Family Relationship Centres across the country to help parents resolve disputes out of the courts and focus on the best interests of their children. This national network of services will be a visible entry point to the family law system, providing a range of information, advice and dispute resolution services. These centres will be community based and provide early assistance to separating families. A free national Family Relationship Advice Line and website will be established to provide support to those who are unable to access a centre.

Assisting and encouraging separated parents to reach agreement will be one of the key aims of the proposed Family Relationship Centres. The development of parenting plans is an integral part of this process. Family Relationship Centres will help families to develop parenting plans through guidance from experienced and qualified parenting advisers. Checklists and templates will be developed and the Family Law Act changed to provide more guidance on the sorts of things that should be included in a parenting plan.

Group information sessions will operate from Family Relationship Centres to provide separating couples with information as soon as possible prior to, or after separation. Nationally consistent information will be disseminated about the family law system, parenting plans and specific issues such as the impact of protracted conflict on children.

Separating families will be able to access individual and/or joint sessions with parenting advisers at the Family Relationship Centres or be referred to an appropriate service provider. It is proposed that an initial individual interview and up to three hours worth of joint sessions will be free. The sessions will be designed to discuss the needs and interests of the children and resolve any disputes that arise. The development of an appropriate parenting plan will be the objective in all cases.

It is envisaged that the Family Relationship Centres will play a major role in the resolution of conflict resulting from breaches of court orders and parenting plans.

The government recognises that for a significant proportion of the community this is an important issue that needs urgent attention. Seeking court enforcement orders can be costly and often escalates the conflict further. Parents will be encouraged to contact Family Relationship Centres when an agreement breaks down or a court order is breached. The parenting adviser will attempt to mediate the dispute and, if resolution of the dispute fails, the matter can be referred to the Contact Orders Program. The Family Law Act will also be amended to strengthen the enforcement provisions.

The government believes that early intervention is important. Couples that are just starting a family or are having difficulties should be able to access the services that the Family Relationship Centres will provide. It is proposed that the Family Relationship Centres provide pre-marriage education services to couples to assist in the creation of a strong foundation to marriage. Couples having relationship difficulties will be able to access the centres for information and referral to services to prevent family breakdown.

The government acknowledges the important role that grandparents play in children’s lives. Accordingly, the Family Law Act will be amended to strengthen existing provisions to ensure that the Courts take that role into account. Grandparents will also be encouraged to access the services provided by the Family Relationship Centres and additional legal aid resources will be provided to help those who need to obtain legal advice and cannot afford it.

Changes to the Family Law Act

The government supports shared parenting and will strengthen the relevant provisions in the Family Law Act to direct the court to consider shared parenting arrangements where it is appropriate and in the best interests of the child. The objects of the Family Law Act will be expanded. In particular, they will expressly recognise the need for both parents to have the opportunity for meaningful involvement in their children’s lives.

Reference will be made to the right of the child to spend time on a regular basis with both parents. A rebuttable presumption of equal shared parental responsibility will be inserted into the Family Law Act as a starting point for those who are able to reach agreement out of the court and in litigated matters. Where there is evidence of violence, child abuse or entrenched conflict the presumption would not stand. The best interest of the child would still remain the paramount consideration.

It is further proposed that parents be required to undertake compulsory dispute resolution before they are allowed commence litigation. The Family Law Act will be changed to implement this proposal. When there is violence or child abuse the spouse or victim would be able to take the matter directly to court if they wished to do so. The courts would be permitted and encouraged to impose costs orders on individuals who make frivolous allegations of violence and child abuse to avoid the compulsory dispute resolution process.

These reforms are aimed at preventing the adjudication of a family law dispute by a court. However, there will always be disputes that need to be determined by a court. The government believes that litigants in the family law system are entitled to a just outcome achieved as quickly and efficiently as possible. A new combined registry for the Family Court of Australia and the Federal Magistrates Court will provide information about those courts and assist those who need to navigate the court system.

It is proposed that the registry will interact with the Family Relationship Centres and other services to assist families throughout their experience in the courts and hopefully provide separating families with the best opportunity to resolve disputes outside the court system. The Family Law Act will also be amended to reduce the adversarial nature of court processes.

Such far-reaching changes need to be implemented carefully and in consultation with the community. For this reason the government will be releasing a discussion paper on the implementation of the proposed reforms in the near future and will be seeking input from the community on how they should be taken forward.

The government’s proposed package of reforms will improve outcomes for separating families. No longer will families have to resort to costly protracted battles in adversarial court settings. The importance of the family unit in our society should not be understated. It should be nurtured and supported. If a family does break down, for whatever reason, families should be encouraged to reach agreement, with as little conflict as possible, on what is in the best interest of the children.

PHILIP RUDDOCK is the federal Attorney-General.


Speech by Shadow Attorney-General Nicola Roxon

Labor promises to improve access to, and the administration of, justice.

The rule of law has not been well respected or promoted by recent Liberal Attorneys-General. They have failed to defend the role of the judiciary and gone further, by taking the somewhat bizarre approach of indulging in public criticism of judicial officers themselves.

On top of this, they have denigrated anti-discrimination law and we have hit an all time low in failing to ensure the basic rights of Australians detained overseas and refusing to demand Australian citizens get the usual protections of our criminal justice system.

This approach is rejected by Labor in favour of a return to upholding and promoting the rule of law, and pursuing real law reforms. We will also be focusing on better access to, and the administration of, justice in Australia.

Labor’s approach to justice has the underlying themes of fairness, equality and supporting all Australians to access opportunities in life. If elected to government on 9 October, there is much to be done.

A new Department of Homeland Security

One significant structural change that must be addressed is Labor’s commitment to establishing a new Department and Minister for Homeland Security.

Labor is concerned that the demands of the Attorney-General’s role mean that neither domestic legal issues nor issues of national security are able to be given sufficient attention by the one office holder. Wearing both these hats we have seen Minister Ruddock neglect issues like community and indigenous justice as well as blame others for security oversights that have occurred within his agencies.

The new Minister for Homeland Security will be responsible for improved coordination between the key departments of Defence, Foreign Affairs and Trade and the Attorney-General’s Department. The new Department will be responsible for the consistent management of our borders, protection of our ports and airports, ASIO, the Australian Federal Police and other relevant agencies.

This strategic division of portfolio responsibilities not only leaves us better placed to deal with security matters, but will free up a Labor Attorney-General to focus much-needed attention on the courts, human rights matters, constitutional law, international law and the whole range of domestic civil matters from family law to bankruptcy.

A Labor Attorney-General will also implement our commitment to a plebiscite on an Australian Republic and other modern democracy reforms of a Latham government such as changes to our freedom of information laws.

Human Rights and opportunity for all

Labor’s law reform agenda will have a strong focus on the protection and advancement of human rights.

In government, Labor will ensure our anti-discrimination legislation is strengthened and made more consistent. Labor will introduce protection from harassment on the grounds of age and sexuality and will legislate to prohibit vilification on the grounds of race, religion and sexuality.

We are committed to delivering same-sex couples full equality with Australian de facto heterosexual couples. We will achieve this through a comprehensive review of all federal legislation to identify and remove discrimination against same-sex couples, with the single exception of the availability of the right to marry.

Labor will cancel the tender process for Aboriginal and Torres Strait Islander Legal Services which has been so misconceived and mishandled and could leave indigenous Australians with worse access to legal assistance than before the 1992 Royal Commission into deaths in custody.

Labor will also establish a National Commissioner for Children and Young People and introduce a more humane and balanced approach to refugees and asylum seekers.

We will maintain short-term detention for the purposes only of basic health, security and identity checks, and we will not detain children in high security facilities. Under a Labor government, we will return detention centres to government control and have them open to independent inspection.

Importantly, a Labor Attorney-General will also assume the administration of legal assistance to asylum seekers from the Department of Immigration, recognising the potential conflict of interest arising when DIMIA combines the role with assessing individual claims.

Labor commits to ensuring that the position of Australian citizens detained overseas complies with basic international standards. I note that neither the Prime Minister, the Attorney-General nor the Foreign Minister have expressed any reservations about the detention of Australians David Hicks and Mamdouh Habib in Guantanamo Bay or the military commission process in the past three years.

It is a worrying sign about the competence of our current Attorney-General that he is only now, during an election campaign, seeking some procedural improvements to the Military Commission process.

When the detail of the Military Commission Order was made in the US in March 2002 even any mediocre first-year law student could have seen then that the process was fundamentally flawed. But the government remained completely silent on the issue – even as politicians and lawyers around the world complained strongly about their concerns.

Family Law Reform

Labor recognises the need to constantly assess whether the family law system is delivering good outcomes to separated families. Many cases are complex and highly contested but we must introduce sensible reforms where they are needed.

The Howard government has had eight years to implement change in this area but has failed to do so.

Labor believes that there needs to be more support available to separating parents and their children. Labor welcomes changes that are being brought about in the Family Court to ensure that procedures are streamlined and that decisions are reached more quickly and satisfactorily.

We must do everything to protect the interests of children including helping parents to find a non-adversarial way of reaching agreement about parenting.

It is for this reason that Labor has focused its attention on strengthening counselling and other support services. If properly resourced these services help separating parents to get advice and help at an affordable cost.

Under Labor, the Commonwealth will also accept a referral of de facto and same-sex property matters from the states.

Bankruptcy

Labor supports a change to bankruptcy laws to prevent it being used as a tax avoidance scheme by high-income professionals, however, we don’t believe that this should be done at the expense of small businesses and sole proprietors who the Howard government had in its sight in its recent exposure draft Bill.

Legal aid/legal services expenditure

Labor will remove the existing severe restrictions on use of federal legal aid funds to allow the allocated money to go further and to give the Legal Aid Commissions greater discretion to use money in the best interests of their clients. This will not cost the government a cent, but will make a massive difference – especially to those with complex family law disputes.

We will listen to and work with the Commissions and encourage developments in primary dispute resolution, particularly in family law areas, and proactively work with them on their plans to expand duty solicitor services. We will keep some controls, particularly to ensure family law matters are still prioritised, but believe more flexibility for Commissions and less duplication of reporting will deliver better outcomes for Australians needing assistance before the courts.

We intend to introduce tighter controls and better reporting on government outsourcing of legal services to ensure the recent blow-out in expenditure is addressed and to ensure the Commonwealth is getting value for money.

It seems hard to justify the Commonwealth spending twice as much on its own legal advice as it does on the whole Commonwealth legal aid program. Savings from this process will be funnelled into community justice initiatives such as community legal centres.

Conclusion

Across government, we see evidence of the Howard government being tired, out of ideas and mismanaging public money.

The Attorney-General’s portfolio is a perfect example of this. In contrast, Labor’s management of the justice system will be efficient and fair, in both expenditure of public money and when it comes to law reform and promoting inclusion and justice in our community.

I believe an Australian Attorney-General should operate within a strong social justice framework, within a framework that supports and promotes the rule of law and respects the need for people to have access to justice, and their rights to be protected against extreme action of governments.

To have this, we need an Attorney-General who respects the courts and their role in our democracy.

We must support and adequately resource the federal courts and the administration of justice so it can serve all the community and acknowledge the importance of a strong, fearless and competent judiciary in a modern democracy.

NICOLA ROXON is the shadow federal Attorney-General.

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