Improving legal frameworks

A continuing project

The Report contains 102 recommendations for reform of Commonwealth laws that affect people experiencing family violence. The Report builds upon the work undertaken by the ALRC and the New South Wales Law Reform Commission leading to the report, Family Violence—A National Legal Response, ALRC Report 114 (2010).

Both inquiries emanate from the work of the National Council to Reduce Violence Against Women and their Children (the National Council), established in May 2008. The report, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 (Time for Action), was released on 29 April 2009.

Together the ALRC’s family violence reports provide a significant contribution to improving legal frameworks to protect the safety of those experiencing family violence. They reflect the goal identified by the Australian Government ‘to reduce all violence in our communities’, recognising that ‘whatever the form violence takes, it has serious and often devastating consequences for victims, their extended families and the community’, and ‘comes at an enormous economic cost’.^[1]

The law reform brief

While the scope of the problem of family violence is extensive, the brief in this Inquiry was constrained both by the Terms of Reference, set out at the front of this Report; and by the role and function of a law reform commission, as set out in the Australian Law Reform Commission Act 1996 (Cth).

Legal frameworks

The ALRC was asked to inquire into and report on the treatment of family violence in Commonwealth laws, specifically: child support and family assistance law, immigration law, employment law, social security law and superannuation law and privacy provisions in relation to those experiencing family violence. The ALRC was also asked to identify what, if any, improvements could be made to relevant legal frameworks to protect the safety of those experiencing family violence.

The ALRC was asked to consider whether legislative arrangements across the Commonwealth impose barriers to providing effective support to those adversely affected by family of violence, and whether the extent of sharing of information across the Commonwealth and with state and territory agencies is appropriate to protect the safety of those experiencing family violence.

The overarching objective of this Inquiry was to make recommendations for reform of legal frameworks to protect the safety of those experiencing family violence. In this context, the idea of ‘legal frameworks’ extends beyond law in the form of legislative instruments and includes education, information sharing and other related matters.

Safety

The overall touchstone throughout the chapters and recommendations is improving safety. In considering safety throughout the Report, the ALRC refers both to actual safety from harm and to financial security and independence, through things such as social security payments and entitlements, paid employment, and appropriate payments of child support. The importance of financial security and independence for the safety of victims of family violence was noted by participants in a study conducted by the Australian Domestic and Family Violence Clearinghouse:

Having my own financial independence and complete decision making over what I do and what I spend and how I support my children is at the forefront of any decision I make. That’s what financial security is to me.^[2]

Limits of law

A theme articulated during both family violence inquiries, and also in relation to the more general issue of responding to family violence, is the limits of law. As remarked by one stakeholder, ‘you can have the perfect law, but …’. The ALRC also recognises that the Inquiry concerns only a narrow slice of the vast range of issues raised by family violence. A comment made by the Family Law Council, in its advice to the Attorney-General of Australia in January 2009, is equally apt. The Council, noting that it was only focusing on family violence ‘when it becomes visible in the Family Law system in Australia’, stated that ‘his visible pattern is only the tip of the iceberg of family violence, alcoholism, drug addiction and mental illness which is apparently entrenched in Australia’.^[3]

Development of the reform response

Commitment to widespread consultation is a hallmark of best practice law reform. In undertaking the Inquiry, a multi-pronged strategy of seeking community comments was implemented. Four Issues Papers were released online, in the discrete areas of the Inquiry. This was followed by an extensive 770-page Discussion Paper, divided into seven separate parts, again reflecting the specific areas of the Inquiry. The Discussion Paper was released online, each part being presented in a separate file for easy accessibility and search capability. This was accompanied by a 49-page Discussion Paper Summary, online and in hardcopy, to facilitate focused consultations in the final stage of the Inquiry process.

One hundred and ten consultations were conducted in two national rounds of stakeholder meetings, forums and roundtables. Internet communication tools—an
e-newsletter and an online forum—were used to provide information and obtain comment, building upon the successful integration of such tools into the inquiry process in the 2010 family violence inquiry. By the end of the Inquiry there were 381 subscribers to the e-newsletter. In addition, the ALRC developed consultation strategies for engaging with Indigenous peoples, those from culturally and linguistically diverse backgrounds, people with disability and people who identify themselves as lesbian, gay, bisexual, trans or intersex.

Principles for reform

The framework for reform in this Inquiry is set out in Chapter 2. In summary, the recommendations in this Report are underpinned by eight principles: seamlessness; fairness; accessibility; effectiveness; self-agency or autonomy; privacy; and system integrity. The first four underpinned the recommendations in Family Violence—A National Legal Response; the other three emerged as key principles in the course of this Inquiry:

(1) Seamlessness—to ensure that the legal framework is as seamless as possible from the point of view of those who engage with it.

(2) Accessibility—to facilitate access to legal and other responses to family violence.

(3) Fairness—to ensure that legal responses to family violence are fair and just, holding those who use family violence accountable for their actions and providing protection to victims.

(4) Effectiveness—to facilitate effective interventions and support in circumstances of family violence.

(5) Self-agency or autonomy—to ensure that legal responses to family violence respect the individual’s right to make decisions about matters affecting him or her.

(6) Privacy—to ensure that an individual’s sensitive personal information concerning fears for safety is obtained and handled in an appropriate way.

(7) System integrity—to ensure that, where a benefit, or beneficial outcome, is included in relevant laws, any requirement to verify family violence is appropriate to the benefit sought.