• Trevor Cooper

Why the parliamentary inquiry into family law is failing

The Joint Select Committee on Australia’s Family Law System may have now proven what many have stated in the past in that we need a Royal Commission. This is not saying that the senior people on the committee are not acting appropriately and doing their best as I must say, I support their efforts. We have to look at the evidence of what is happening and the answers to what we can observe:

  1. Concealment and suppression of evidence

  2. Making of parliamentary privilege discretionary to supress evidence

  3. Resource limitation to ensure evidence is not made available

  4. Can you name a successful organisation that does not measure its customer satisfaction or if it is meeting its objectives?

  5. What other system has had this number of inquiries and yet the satisfaction with the system continues to decline?

1. Concealment of evidence:

One of the lessons that some politicians will reveal is that inquiries are managed through processes that favour the maintenance of the status quo. Other politicians will openly tell you that the outcome of an inquiry (and even a Royal Commission) is set up for a defined outcome, dictated by the “terms of the inquiry”, so you need to be very influential before an inquiry is announced. If you are not on board with the outcome inferred by the terms of reference then your evidence may be lost, marginalised and you may even be attacked and discredited.

While this is not new, it seems to have taken prominence with John Anderson, the former deputy prime minister stating on his web site: It often seems to me that the old adage, “I may disagree with you, but I will defend to the death your right to say it,” is giving way to a notion which says, “if you dare disagree with me I’ll do whatever it takes to silence you.”

The people of Australia that were asked to make submissions have done so and after the submissions flowed in, the introduction of rules saw the restrictions being applied. The public service is using Section 13 of the Parliamentary Privileges Act 1987 which overrides other sections of the Act and removes the freedom of speech to silence people.

As of 19 April 2020, of the 654 submissions registered on the inquiry web site, 508 (78%) have been marked confidential and will not be made available and 14 (2%) have names withheld and sections redacted. Essentially 80% of the submissions to the peoples’ inquiry have been hidden from the people.

2. Making parliamentary privilege discretionary

Letters are being sent out that include a paragraph “Please note, you should not release this submission without the approval of the committee. The unauthorised disclosure of a submission is not protected by Parliamentary Privilege.” Again, insiders tell me that permission is never granted and should you choose to release / publish your submission then you are attacked by the public service as not complying with the rules and they will destroy your credibility. The public service is effectively using standover or bullying tactics through a perverse use of section 13 of the Parliamentary Privileges Act 1987. Parliamentary Privilege should either exist or it should not exist and while the Parliamentary Privileges Act 1987 mentions the Bill of Rights 1688 several times, section 13 of the Parliamentary Privileges Act 1987 seems to be at odds with the rest of the Act and maybe needs to be reviewed if it is being misused to squash debate on evidence to which parliamentary hearings and ultimately parliament are using to make laws.

3. Resourcing

The feedback to date is that the number of submissions has overwhelmed the inquiry.

  • When you talk to senior advisors of the committee members they advise that there have been thousands of submissions and have only been presented with a small number by the secretariat.

  • When ask the secretariat they advise that the politicians are simply not getting through the submission.

A bit of finger pointing and the apportionment of blame, but suspect both are probably correct to some extent. When I spoke to one politician recently, I discovered there was over 3,800 submissions last count (and that compares with 400 for the Black Summer fires royal commission).

As of 19 April 2020, the secretariat has processed to the only 654 submissions (17%) in the 4 months since submissions were originally closed. Basic maths says that to process 3,800 submissions at the current rate will take 23 months yet the entire inquiry is due to finish and report in October 2020 (5 months away). Did our senior public servants fail primary school mathematics or is something else going on? Are they simply not working fast enough, not allocated the resources to review the evidence being presented to them or some other reason? 4. Comparing the family court to successful organisations

Successful organisations measure their customer satisfaction and quality of their products and services.

  • Some would say it is highly unusual to see so many submissions made to an inquiry and this in itself, shows us that the issues are impacting mainstream Australian people and they are not satisfied.

  • It was Senator John Madigan that asked question in the “Senate Legal and Constitutional Affairs, Legislation Committee” (aka the Senate Estimates Committee) more than four years ago which was “how many children are impacted” and still no one can answer or it appears, has bothered to investigate. They measure how many widgets (legal cases) pass through their doors and do some stats on that each year.

They do not measure the client satisfaction or impact on the very people that the Family Court was to rule upon “The best interest of the children” and have not even attempted. Such arrogance is normally only seen in government protected monopolies or extreme authoritarian (communist) states. Our democratic country deserves better.

5. What other system has had this number of inquiries and yet the satisfaction with the system continues to decrease? I cannot think of one section of Australian government that has had so many inquiries and still has not improved the system so we need to ask why! Maybe it is that each faction, be they the legal fraternity, the domestic violence groups or others that have pushed for inquiries to investigate their perspective in isolation and only now, we have been granted an inquiry which was meant to be a people inquiry and broad in nature. Unfortunately, this focus on individual stakeholders’ interest is also reflected in the investigative committees, whose cross section often seem to polarise the evidence and public opinion and work against those investigating the family law system. We have the extreme left-wing feminists, whom define anyone that is not 100% in agreement with them, to be extreme right wing and the conflict is evident during question times as their cognitive biases become evident. Even the government through the public service ensure the polarisation of society by funding these special interest groups. Look at some of the taxpayer funded organisations that have been sponsored such as:

  • Lawyers - that were paid to give their members opinion,

  • ANROWS - a group that is founded and does research on Duluth model principles which apportions blame based upon gender from patriarchy and polarises matters by always putting children with mothers in research,

  • Women’s legal service - are we not all governed by the same law and meant to be equal under the law.

Scott Morrison when he announced this inquiry through his media release on the 17 September 2019 stated that it was a wide ranging inquiry. His video stated what he wanted of politicians “is to just go around the country and open their ears and listen to the stories of Australians that are dealing with this system. It’s having a big impact on individuals, on our fellow Australians.” and following that speech was dubbed the peoples’ inquiry. How far the inquiry has drifted from that inception with:

  • vital evidence being concealed,

  • the discretionary application of parliamentary privilege and

  • failing to resource the inquiry resulting in the failure to process those very stories and redact where needed

and this needs to be addressed so that there is transparency in the inquiry which would give the public confidence.

I questioned on the 24 September 2019 “Will witnesses be silenced” and outlined that the inquiry had good prospects and that a Royal Commission may not be required. On 3 Dec 2019 I wrote “Scott Morrison – I hope you are listening” hoping that this inquiry will achieve the aspirations of our Prime Minister and a children that need this significant reform.

It is a time for leadership. To unify parties towards a common goal of focussing on the children. To do this we need to address the very basic issues of government management, open government and freedom of speech (enshrined in documents such as the Magna Carta (1215) and US Constitution (1787) along with The Bill of Rights (1688)), rather than allow the politics of division and self-interest scuttle yet another opportunity. While the fires and Coronavirus may have taken the focus off what is required, there is still time to turn around this inquiry and make it a people’s inquiry and secure desperately needed change for our future generations.

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