Processes of reform

Consultation and collaboration processes

1.75 Commitment to widespread consultation is a hallmark of best practice law reform.^[93] Moreover, under the provisions of the Australian Law Reform Commission Act 1996 (Cth), the ALRC ‘may inform itself in any way it thinks fit’ for the purposes of reviewing or considering anything that is the subject of an inquiry.^[94] Similarly, the NSWLRC may ‘hold and conduct such inquiries as it thinks fit’.^[95]

1.76 For this Inquiry, the ALRC was directed to work closely with a number of bodies and to consult particular groups, complementing the multi-faceted consultation strategy adopted for this Inquiry. This strategy used a broad mix of face-to-face consultations and roundtable discussions; online communication tools and the release of a Consultation Paper together with a companion summary.

1.77 This Report is released as a joint document of the ALRC and the NSWLRC, reflecting the co-operative work in the Inquiry. The use of the term ‘the Commissions’ as appropriate throughout, reflects this joint endeavour. To ensure that the solutions developed in the Inquiry are ‘practically achievable and consistent with other reforms and initiatives being considered’, the ALRC provided regular briefings to key staff in the Attorney-General’s Department.

1.78 The consultation strategy for this Inquiry included consultation with all of the bodies identified expressly in the Terms of Reference and other key stakeholder groups.

1.79 A key aspect of ALRC procedures is to establish an expert Advisory Committee or ‘reference group’ to assist with the development of its inquiries. Because of the complex nature of this Inquiry the Commissions used roundtables of invited experts and advisers to inform the consultative processes at key points during the Inquiry—including, in particular, Magistrate Anne Goldsbrough as a part-time Commissioner and George Zdenkowski as special adviser. Expert readers on specific topics were also enlisted at key points in the development of the Consultation Paper and this Report, including Dr Anne Cossins, Dr Jane Wangmann, Professor Patrick Parkinson, Stephen Odgers SC, Professor Les McCrimmon and Hannah McGlade.

Community consultations

1.80 A multi-pronged strategy of seeking community comments was adopted during the Inquiry. First, internet communication tools—an e-newsletter and an online forum—were used to provide information and obtain comment; secondly, the Consultation Paper with its companion summary were released; and thirdly, a national round of stakeholder consultation meetings, forums and roundtables was conducted. In addition, in accordance with a commitment in the ALRC’s Reconciliation Action Plan,^[96] the Commissions developed an Indigenous consultation strategy.

Online tools

1.81 E-newsletter: Monthly Family Violence Inquiry e-newsletters provided a way to keep stakeholders informed about the Inquiry progress on a regular basis, with a calendar of stakeholder consultations or other key events in the upcoming month, and a summary of consultations and other work in the previous month. Each e-newsletter also highlighted an ‘Issue in Focus’ on which views were sought. Links were provided to give immediate feedback on the relevant issue through the online comment form, as well as to information about how to make formal submissions. In addition, there were links to the other inquiries of immediate relevance, including the Chisholm Review and the AIFS evaluation.

1.82 The comments received in response to the Issues in Focus provided an important additional means of input into the Inquiry. Eight e-newsletters were published during the Inquiry and by the end of the Inquiry there were 965 subscribers to the e-newsletter distribution list.

1.83 Online forum: The Family Violence Online Forum conducted from November 2009 to January 2010 amongst a closed group from the women’s legal services community. The forum was assisted by a grant from the Government 2.0 Taskforce, formed in 2008 against a backdrop of increased interest by governments worldwide in the potential of online engagement. The ALRC received funding from the Taskforce to run an online stakeholder consultation pilot, with the technical and strategic support of social business and development consultancy, Headshift.

1.84 The Family Violence Online Forum facilitated frank and open discussion in a secure online environment about issues relevant to the concerns and experiences of women’s legal services.

1.85 Online submission and blog: An online submission form was designed to enable people to respond in a focused way, addressing the individual questions and proposals set out in the Consultation Paper. Each question or proposal was followed by an area to enter a response, with the option to upload a pre-prepared submission or supporting document. As with other methods of submission, online submissions could be marked ‘confidential’. Sixty-six submissions were completed using the online facility.

1.86 The blog was set up to enable public discussion and debate around questions and proposals contained in the Consultation Paper. The invitation to join this discussion was open to all. Unlike the online submission form, all comments made on this site were public. One hundred and sixty-five blog posts were made during the Inquiry.

1.87 The online submission facility and the blog were ALRC pilot projects in modes of consultation.

Consultation Paper and Consultation Paper Summary

1.88 In the past, the ALRC’s standard practice has been to produce an issues paper and a discussion paper, prior to producing a final report. In this Inquiry, in response to the wide-ranging and challenging Terms of Reference, and a tight time frame, the Commissions have had to adopt different practices in relation to consultation documents to provide appropriate opportunities for community engagement without overloading stakeholders.

1.89 First, only one consultation document—a Consultation Paper—was published, released on 29 April 2010, complemented by the monthly e-newsletters. The Consultation Paper posed questions—particularly in highly contested areas—and presented options and proposals for reform. The Consultation Paper was a major publication, running to 1,018 pages. To facilitate stakeholder contributions in the restricted time frame for this Inquiry, the Commissions simultaneously released a Consultation Paper Summary of 243 pages—another new practice introduced in this Inquiry. However, the enduring nature of law reform projects is such that the research and evidence base, on which recommendations are based, must be fully explored and reported.

1.90 In most ALRC inquiries, proposals and recommendations for reform are addressed to those appropriate persons or agencies in the federal sphere best placed to implement them. This reflects the ALRC’s functions under the Australian Law Reform Commission Act.^[97] The NSWLRC’s functions are similarly set out in its constituting Act, the New South Wales Law Reform Commission Act 1966 (NSW).^[98]

1.91 This Inquiry engages with Commonwealth laws, as well as state and territory laws on many levels—and in both Terms of Reference. The ALRC—as a Commonwealth body—is principally concerned with Commonwealth laws or matters of uniformity and complementarity of Commonwealth laws with state and territory laws; and the NSWLRC—as a state body—is principally concerned with New South Wales laws.

1.92 In this Inquiry, however, both bodies, acting together, have been asked to go further in their respective functions. Given the importance of the Australian Government’s commitment to reducing violence against women and children, the nature of the Terms of Reference, and the compelling and widespread nature of the issues being considered, the implementation of many of the recommendations will be primarily the responsibility of the states and territories. The Commissions recommend that reform in this area be led by the Commonwealth Attorney-General and NSW Attorney General cooperatively and through SCAG.

Consultations

1.93 During this Inquiry the Commissions conducted 236 consultations, as listed in Appendix 2 of this Report. Consultations were undertaken with individuals, legal services and support agencies, courts, police and non-government organisations. Cross-sectional roundtables and forums were conducted in Sydney, Melbourne, Perth, Hobart and Darwin. They comprised a range of groups involved in aspects of responding to family violence, including child abuse and sexual assault, as well as across the family law system.

1.94 The Commissions’ approach to consultation with Indigenous stakeholders was to take the same approach as taken in relation to victims generally, working principally through legal and other services to identify issues, given the focus of the Terms of Reference on ‘legal frameworks’.^[99]

1.95 In addition, rather than separating out issues concerning Indigenous women and children, the Commissions adopted an integrated approach. The same approach was taken with respect to other groups such as women with a disability and women of culturally and linguistically diverse backgrounds. However, the mainstreaming of Indigenous issues in this manner caused problems for some stakeholders working with Indigenous groups in identifying the particular issues to address.^[100]

Submissions

1.96 The Terms of Reference initially stipulated a reporting date of 31 July 2010. In order to ensure that the views of key stakeholders could be received and considered fully, the ALRC requested, and the Attorney-General granted, an extension until 10 September 2010 and a further extension to 10 October 2010.

1.97 The Commissions received 240 submissions in the Inquiry, a full list of which is included in Appendix 1. Submissions were received from a wide range of people and agencies including individuals; academics; lawyers; community legal centres; law societies; women’s centres and legal services; support services for men, women and children; Indigenous legal and other services; directors of public prosecutions, both Commonwealth and state and territory; state governments; government departments and agencies, both state and federal; victims’ support groups and rape crisis centres; and judicial officers, including heads of jurisdiction. Although submissions closed on 25 June 2010—after the extension of time—significant submissions continued to be contributed after that date, including for example a 191-page submission on 16 July 2010.

1.98 Submissions ranged from very detailed submissions addressing the many questions and proposals in the Consultation Paper to passionate and personal stories of disaffection and dismay with the way the legal and welfare systems—principally the Family Court—affected individuals.

1.99 The Commissions acknowledge the considerable amount of work involved in preparing submissions and the impact, particularly in organisations with limited funding, of committing staff resources to this task. It is the invaluable work of participants that has enriched the whole consultative process of this Inquiry and the Commissions record their deep appreciation to all participants.

1.100 The time frame for an inquiry of the magnitude covered by the Terms of Reference did, however, cause concern for many stakeholders. While acknowledging that the Consultation Paper was, for example, ‘a fantastic resource’,^[101] ‘extremely comprehensive’,^[102] an ‘extraordinarily impressive effort in a limited period of time’,^[103] and ‘the level of detail is welcome’,^[104] and commending the Commissions for ‘engaging in such a substantial undertaking’,^[105] many submissions referred to the fact that a lack of resources in community organisations limited the ability to respond.^[106] For example, Women’s Legal Service Brisbane commented that:

Many of the issues raised in this inquiry are so large and so complex and deal with the interaction of federal and state laws and bureaucracies that we see no feasible way forward, other than the establishment of a permanent on-going body to continue the work of the inquiry, focusing on specific aspects of the system. We are also concerned that the large discussion papers published and volume of them, (although a fantastic resource) and the limited time-frames, may have acted as an impediment to an effective response being obtained from some of the most disadvantaged women in our community and the organisations that work with them.^[107]

1.101 A further compounding factor affecting a number of government stakeholders was the need to secure approval at appropriate levels for submissions and the time required for such processes.^[108] In view of all the constraints in the process of this Inquiry—and the importance of the issues involved—many stakeholders expressed a desire for a continued engagement with the issues and process of reform in this area.^[109]