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DV victims need funding before cross-examination ban: LCA

The Law Council of Australia has called on the Australian government to accept recommendations from a report which said a guarantee of additional funding for legal aid is necessary before a bill to ban direct cross-examination of domestic violence survivors can be passed.

user iconGrace Ormsby 17 August 2018 Politics
Law Council of Australia
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The Senate Legal and Constitutional Affairs Legislation Committee’s Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 [Provisions] bipartisan report was released earlier this week and cited the Law Council’s previous advice, continually noting concerns regarding funding of the bill’s proposed measures.

The report said “the committee believes there should be a commitment to additional funding for legal aid before the bill is put to a vote in the Senate, including the amount, timeline for distribution and method of distribution; and in any additional funding for legal aid that is announced, the government make clear the eligibility of litigants who do not meet regular eligibility requirements but could not otherwise afford a private lawyer”.

Recommendation one also stated that “Details regarding the funding of the measures contained in the bill be made public prior to the commencement of debate on the bill in the Senate.”


The Law Council’s president Morry Bailes has said the bill’s aims are worthy and need appropriate funding. On behalf of the council, he is calling on the government to adopt the funding recommendation “as a matter of priority.”

“It is reasonable and appropriate to reform the system to allow for a lawyer to perform cross-examination instead. However, there is considerable uncertainty over how legal aid commissions would deal with the extra demand from people who cannot afford a lawyer to act for them.”

Mr Bailes said “the prospect of being cross-examined by a violent ex-partner can cause significant emotional distress and trauma, and discourage individuals from exercising their legal rights.”

He noted the Law Council’s particular concern of situations where a perpetrator of family violence is legally represented but a victim is unable to secure legal representation, highlighting it as an area of uncertainty.

Considering the critical role cross-examination plays in the justice process, Mr Bailes said that “effective cross-examination requires the cross-examiner to have an understanding of all of the evidence and the central issues in the case, and for that person to be present to observe the evidence of the other party.”

Half-measures such as “parachuting a lawyer in for cross-examination” would not work, he said.

Mr Bailes said that for the reform to work, there needs to be clarity around the proposed model for lawyer participation and performance of a cross-examination, and “that means extra funding must be provided to legal aid commissions to enable them to perform their vital role under the proposed scheme.”