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Wednesday, 13 August 2003
Page: 18486


Mr PRICE (10:45 AM) —I rise to speak on the Family Law Amendment Bill 2003. I would like to thank the honourable member for Blair for his contribution on the bill and I express some jealousy that he will be a member of the committee inquiring into those issues while, at this stage, I will not. I can understand why he is so pleased about the huge public response to that inquiry into the presumption of joint rebuttable shared residency. But I also warn him that with such a huge public response come expectations and it will be on the committee's head to meet those expectations.

They say that family law is a terribly emotive issue. I notice the shadow Attorney-General said that. I do not dispute the veracity of that, but it does not mean that it somehow excuses legislators from such an emotional area. In fact, I think it means that we have to be even more involved than we otherwise would be. It is not an excuse for inertia and it is not an excuse for doing nothing, but all too often in this parliament we have offered excuses.

I particularly wanted to rise and speak today because it is the 20th anniversary of the imposition of section 121 of the Family Law Act. This is a section that the Attorney-General himself told the National Press Club—if my memory serves me correctly—that he wanted to reform. It is an area he charged the chief judge of the Western Australian Family Court to bring down a report on. It is an area where I had a private member's bill prepared and was not successful in having it presented.

So what is section 121 and what does it deal with? When the Family Law Act was first passed by this parliament back in 1975, there was a total prohibition on any reporting of the proceedings of the Family Court. A joint committee in 1983 recommended that that be changed—that it was in the interests of justice, in the interests of the court and in the interests of the public that there be some reporting of cases before the Family Court. So section 121 was not a ban on the reporting of cases but an attempt by this parliament to allow the media to report on some family law cases. Unfortunately, the media advise that section 121 is still too restrictive to allow them to fully report on what the Chief Justice of the Family Court rejoices in telling us constantly is five per cent of cases. Five per cent of divorce cases end up in the Family Court. Section 121 allows reporting of those cases.

I will quote from the McCall report: `Why should we not be satisfied with this star chamber, this court that has no public scrutiny whatsoever? Why should we want to change it?' These are not my words. I am quoting from the McCall report. This was a report the Attorney-General himself commissioned with a view to making changes. Having said to the people of Australia, `We're going to change section 121'—this being the 20th anniversary of section 121—this is what his own commission report had to say about allowing public scrutiny of what goes on in the court:

It provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains public confidence in the administration of justice.

Could I ask: does secrecy do this? Of course it does not.

No one is more entitled than a member of the public to see for himself that justice is done. The rule (in Scott v Scott providing 3 exceptions to full publicity ie wards, lunacy and discovery of an invention) has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism.

Does that occur today? Of course it does not.

The entitlement to report to the public at large what is seen and heard in open court is a corollary of the access to the court of those members of the public who choose to attend.

Experience has shown that open courts and unrestricted media produced bad as well as good, consequences: The principle is adopted not because it is an unalloyed panacea, but because it is the least worst method of securing the proper exercise of judicial power and accountability for it.

Without the publication of the reports of the court proceedings, the public would be ignorant of the workings of the courts whose proceedings would inevitably become the subject of the rumours, misunderstandings, exaggerations and falsehoods which are so often associated with secret decision-making. The publication of fair and accurate reports of court proceedings is therefore vital to the proper workings of an open and democratic society and to the maintenance of public confidence in the administration of justice.

Lastly, McCall said:

Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial.

Why is it in this day and age, in this new century and millennium, we have federally entrenched as a star chamber the one court that touches the most people in Australia? Why do we say that this is satisfactory? Why is it that we refuse to do anything about it? What hypocrisy. Those who argue that there should be no publicity of the court are happy to rely on the instrument, section 121, that was designed to achieve the opposite. What hypocrites. If you believe it should be totally closed, if you want to revert to 1975, then so be it. I can understand a contra-argument. But at least have the decency to put into legislation that which clearly serves your purpose, not an instrument that was designed to achieve the complete opposite of it.

I have said on many occasions in this House that the biggest victim of section 121 is not the people and parties who come before the court; it is the very court itself. We need to lift the veil. We need to ban secrecy. Why is it so? Why is there no impetus in this place to amend section 121 to make the court like any other in this land? The current provisions of section 121 protect the privileged and the moneyed. They may even protect some parliamentarians who go through divorce—and we do.

I accept that there are drawbacks to public life. People get fascinated by aspects of your private life where they may not otherwise be; but so be it. We should not close ourselves in protection. We should not try to protect the top end of town because clearly the media and others would be most interested in those cases. That is a price you have to pay in a democracy. But the penalty we pay is a perverted justice; it is a court that is unaccountable to the public and to the commentators. It is not a very satisfactory situation at all.

Why, in 1975, was there a prohibition on publication of proceedings? It was designed to protect children. It was considered that divorce was such a social stigma that children would not survive if people knew that their parents had divorced. Mr Deputy Speaker Scott, I invite you to go to any classroom in your electorate and ask how many students have been subject to parents who have separated or divorced. It is hardly the exception. In fact, I would say that every family has, amongst its own ranks, those who have separated or divorced. The suggestion that somehow we will be emotionally crippling children in allowing newspapers and the media to report on family law cases is utterly absurd. In fact, if there is to be a prohibition on reporting, we ought to entrench it—as a private member's bill of mine sought to do—so that the judge could suppress it, or he could suppress it at the request of the parties. I understand only too well that there would be some situations where a judge would seek to suppress the publication of the identities of people. I am not arguing for carte blanche. Any court can close the court, but you have to make a submission. You have to have some merit in your case. It has to be decided impartially and fairly whether it is the most appropriate course of action and whether the application should be granted. But this parliament relies on section 121—hypocritically passed, in my view, to allow scrutiny of the Family Court. Now, on the 20th anniversary of section 121, can there be any dispute that section 121 has been as effective as the total ban that applied in the original act?

I say to the Attorney-General: where is your zeal? You announced you were going to reform section 121. Do we need to wait for 30 years? Do we need to wait for 25 years? Or is a golden anniversary the most appropriate occasion? You announced that you were going to make the change. You commissioned the McCall report, and what have you done? Absolutely nothing. As the first law officer of this land, how can the Attorney-General, having publicly stated that he wanted change—and having commissioned a report that said that change was necessary—come into this parliament without the legislation, without the will and without the courage to open up and tear the screens off this court, let the breath of fresh air go through this court and allow ordinary men and women to understand what goes on in that court whilst they are not parties to the court proceedings?

The previous member who contributed to the debate on this bill talked about that committee inquiry—and I am pleased there is a committee inquiry—but why can't the member for Blair champion the Attorney-General's cause? If you want to reform something, first let people peer into it and let them understand what is going on. But we are continuing with what I call the hypocrisy or the mirage that somehow section 121 allows scrutiny of the Family Court, knowing that after 20 years under that section the curtain across the court is as closed as the day the court was first formed in 1975.

If there is one thing fundamental to achieving reform—and I appreciate some of the steps that have been taken in family law reform—I would say that it is to draw back that veil of secrecy, draw back the curtain, open it up, let the sun shine into the Family Court—mausoleum of justice that it is. Let people see what goes on. I think you would then find a groundswell of support amongst men and women for changes to this legislation—and change it we must. You cannot put an act of parliament in concrete that deals with human relations and expect that there will not from time to time be a need for change.

The member for Blair also talked about having one court that looked at all aspects of separation. One of the biggest impediments to reform is that we have grabbed this jurisdiction ourselves—and it is ironic, I know, for a Labor member to say so. Clearly, if you were going to have a unified court, it would be much better in a state jurisdiction that was able to look at all issues concerning juveniles and separation. One great advantage that the state systems have is that you do not need to have judges in charge of chapter 3 tribunals because, at the end of the day—and let me perhaps finish on a positive note—the best form of divorce and separation is one in which the parties themselves come to terms with the end and make sensible decisions about property and their responsibility to their children. It allows them to discharge that responsibility to their children and get on with their new lives—free from lawyers and courts.

Firstly, I long to see reform to section 121 and to join with the Attorney-General on the other side and support it. Secondly, I would love an Attorney-General of this Commonwealth to walk into the parliament and tell us how much family law is costing. We know what the Family Court costs; we know what the magistrates court costs; we know what legal aid costs; but we do not know—and no Attorney-General has sought to get this information—how much money parents are spending on lawyers and advocates. How much does the legal profession gain out of the wreckage of marriages and relationships? Tell me what that figure is. If we were doing industry policy, it would be one of the first things we would want to know. But there is a deafening silence on this.

I offer the challenge: commission a report and let us get a figure and have some understanding of what parents are wasting on court procedures and legal advisers as opposed to spending that money on their children and getting on with their new lives. I believe we would be utterly staggered by that figure. There were some other things I wanted to talk about in this bill but, given the 20th anniversary of section 121, I apologise for being unable to resist the temptation to make a few remarks about that most draconian provision in the current Family Law Act.