ALRC Family Violence Inquiry—Indigenous Consultation Plan (March 2010)

Background

This document sets out the Australian Law Reform Commission’s (ALRC) plan for consulting with Aboriginal and Torres Strait Islander peoples for the inquiry into Family Violence.[1] On 17 July 2009, the Attorney-General of Australia referred to the ALRC for inquiry and report the issues of:

• the interaction in practice of state and territory family/domestic violence and child protection laws with the Family Law Act and relevant Commonwealth, state and territory criminal laws; and
• the impact of inconsistent interpretation or application of laws in cases of sexual assault occurring in a family/domestic violence context, including rules of evidence, on victims of such violence.

In relation to both issues, the Attorney General has requested that the ALRC consider what, if any, improvements could be made to relevant legal frameworks to protect the safety of women and their children.

The ALRC is conscious that family violence is a significant issue for Aboriginal and Torres Strait Islander peoples. As was noted in the Time For Action report:

Aboriginal and Torres Strait Islander women report higher levels of physical violence during their lifetime than do non-Aboriginal and non-Torres Strait Islander Australian women, and they are much more likely to experience sexual violence and to sustain injury.[2]

The ALRC is committed to consulting with Aboriginal and Torres Strait Islander peoples. In 2009, the ALRC launched a Reconciliation Action Plan that outlines a number of actions, including that the ALRC will identify opportunities for consultation with a diversity of Aboriginal and Torres Strait Islander peoples.

ALRC Indigenous Advisory Committee

On 19 August 2009, the ALRC hosted the first Indigenous Advisory Committee (IAC) meeting. Committee members provided the following advice in relation to an Indigenous consultation plan for the Family Violence inquiry:

• the ALRC should consider the methodology used by the NSW Aboriginal Sexual Assault Taskforce. The Steering Committee (headed by Marcia Ella-Duncan) ensured that the right individuals and groups were heard;
• the ALRC should ensure that it reports back to the community on the result of the consultation;
• the ALRC needs to avoid duplication with other bodies as this will lead to over-consultation;
• it is important to consult with community and not just Indigenous organisations. Indigenous organisations do not always reflect what is happening on the ground;
• the ALRC should exercise caution and be mindful of the effect its recommendations will have on Aboriginal and Torres Strait Islander peoples (noting that the Breaking the Silence report triggered the Northern Territory Intervention);
• the ALRC should develop a consultation strategy to inform future work.

The ALRC greatly appreciates the expertise of Committee members in this area and has sought to incorporate the Committee’s advice into the ALRC’s draft consultation plan.

ALRC approach to Indigenous issues raised in the family violence inquiry

Consulting experts and representative bodies

The ALRC’s approach to consultation for the Family Violence inquiry is to consult with experts (including people who work in the field, as well as judges, lawyers and academics) and representative bodies rather than with affected individuals in the community. This approach has informed the ALRC’s Indigenous consultation plan, as well as the ALRC’s approach to consultation for the Inquiry more generally.   

The ALRC has taken this approach for a number of reasons, including the tight timeframe for the Inquiry, available resources and the need to manage stakeholder expectations of what the Inquiry can deliver. However, the primary consideration has been the focus of the Inquiry. Family violence raises a huge number of legal but also non-legal issues such as poverty, education, drug and alcohol abuse and housing. While the ALRC needs to be mindful of these non-legal issues, the focus of the ALRC’s Inquiry is what, if any, improvements can be made to relevant legal frameworks, with a particular focus on how the numerous laws across and within jurisdictions interact.

The ALRC has therefore prioritised meetings with individuals and organisations that can comment on the complex interactions of relevant laws and how they operate in practice.  For example, the ALRC has met and consulted with various lawyers that represent women and children, including women’s legal services, to develop an understanding of how these laws interact or fail to interact, and the impact this has on the safety of women and children.

As outlined below, in 2009 Ms Erin Mackay (ALRC Legal Officer) prepared a review of literature dealing with Indigenous issues in the family violence context to inform the ALRC’s writing and to identify key stakeholders for consultation. Erin’s approach was to seek out and give weight to the writings of Indigenous women, with a view ultimately to consulting with this key group of stakeholders.

This is not to indicate that Indigenous men, or non-Indigenous men and women are unable to provide important and relevant commentary on these matters, but rather that in this Inquiry it is imperative for the ALRC to guard against any continued systemic disempowerment of Indigenous women. The ALRC is also conscious that, as in non-Indigenous communities, the voice of one Indigenous woman should not be taken as representing that of all Indigenous women in all parts of Australia.

Advisory Committee

It is standard operative procedure of the ALRC to establish an expert Advisory Committee to assist the development of its inquiries. However, again due to the tight timeframe and limited resources, the ALRC has not convened an Advisory Committee for this Inquiry. The ALRC is instead ensuring that it consults with a broad range of stakeholders. 

Case studies

The ALRC is conscious that past inquiries, including ALRC inquiries, have arguably marginalised Aboriginal and Torres Strait Islander people and their experiences by including a separate chapter and recommendations concerning ‘Indigenous issues’ in consultation documents and final reports. At the same time, the ALRC does not want the experience and particular issues of Aboriginal and Torres Strait Islander peoples to be rendered invisible.

Indigenous women face particular challenges. However, problems with the relevant legal frameworks affect all women and children facing family violence. The ALRC has therefore decided that issues faced by Indigenous people should not be dealt with as a separate issue or chapter in the consultation document and final report for this Inquiry. The ALRC will, however, highlight particular issues faced by Aboriginal and Torres Strait Islander women and children throughout the consultation document and final report. The ALRC’s preliminary research has identified a number of issues faced by Aboriginal and Torres Strait Islander women and children, including: data collection, access to justice issues, access to appropriate support services, definitional issues, whether restorative justice approaches are appropriate, and contextual and cultural awareness issues. Indigenous experience will also be highlighted through the use of case studies throughout the consultation document and final report.

ALRC progress to date

Background research. In 2009, Ms Erin Mackay (ALRC Legal Officer) prepared a review of literature dealing with Indigenous issues in the family violence context (including child protection and sexual assault), and used this review to: inform the identification of key stakeholder groups for consultation; develop a consultation strategy; and assist in framing appropriate questions. Erin’s list of potential stakeholders was added to a larger list of over 320 Indigenous and non-Indigenous stakeholders compiled by the Research Manager and Family Violence Inquiry team. 

Media release

On 24 July 2009, the ALRC issued a press release announcing the ALRC’s Family Violence Inquiry. The media release was distributed to a broad range of media, including Indigenous media.

Consultation meetings

 The following meetings have been conducted with Indigenous individuals and organisations: Megan Davis and Kyllie Cripps (academics); and representatives from Aboriginal & Torres Strait Islander Women’s Legal Services, as part of a roundtable meeting.

Conferences

The ALRC has attended sessions on Indigenous family violence issues at the 4^th National Indigenous Legal Conference in Adelaide on 24–25 September 2009; the Australasian Institute of Judicial Administration Family Violence Conference in Brisbane on 1–3 October 2010; and will lead a yarning circle at the Queensland Centre for Family and Domestic Violence Research National Indigenous Family Violence Prevention Forum in May 2010.

E-newsletters

The ALRC has issued four monthly e-newsletters to update stakeholders about the Inquiry’s progress and to seek feedback on particular issues. These newsletters have been distributed to over 350 individuals and organisations, including around 20 Aboriginal and Torres Islander organisations.

Online Forum

The ALRC hosted a Women’s Legal Services Online Forum from November 2009 through to January 2010. The Forum was a closed online community that enabled discussion in a secure environment. The Aboriginal & Torres Strait Islander Women’s Legal & Advocacy Service used this opportunity to provide substantial and very useful comments on issues faced by Indigenous women in the child protection area.

For further information on ALRC’s progress to date, please see Appendix 1.

ALRC Indigenous consultation plan

Further consultation on the plan

The ALRC will continue with attempts to speak with  Marcia Ella Duncan to discuss the consultation plan. Marcia was on the Steering Committee for the key NSW inquiry on Aboriginal child sexual assault. The ALRC will also consult with the ALRC Indigenous Advisory Committee, and discuss the plan at the ALRC/NSWLRC team level.

Consultation document

The consultation document is due for release in mid- April. The Inquiry team will incorporate material identified in the literature review and further research into the consultation document due for release in mid-April 2010.

Promotion

The ALRC will explore placing advertisements and articles in Indigenous media and journals, and participating in radio interviews on Indigenous radio stations to promote discussion about the consultation document and to encourage submissions from the Indigenous community. The ALRC will also tap into email networks for distribution of information about the Inquiry and setting up meetings. The ALRC will continue to use the e-newsletter to promote the Inquiry. 

Consultation meetings and roundtables

The ALRC has started to organise consultation and roundtable meetings with key individuals and organisations, including Wirringa Baiya Aboriginal Women’s Legal Centre; Aboriginal and Torres Strait Islander Women’s Legal & Advocacy Service; Joan Dickson; Hannah McGlade and Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council. The ALRC is conscious of over-consultation in this area and will seek to convene roundtables/discussions around existing relevant meetings (eg preparations for Mackay National Family Violence Prevention Forum, see Appendix 1).

The ALRC will organise meetings with the following Indigenous women for May 2010 in Perth: Professor Caroline Taylor (Edith Cowan University), Hannah McGlade (Human Rights lawyer) and Dorinda Cox (Sexual Assault Resource Centre).

The ALRC is also planning meetings in the Northern Territory for June 2010. Potential consultation meetings include: Ngaanyatjarra Pitjantjatjara Yankunytjatjara  Women’s Council, Top End Women’s Legal Service, Northern Australian Aboriginal Family Violence Legal Service, Indigenous Family Liaison Officer at the Family Court of Australia, and the North Australian Aboriginal Legal Aid Service.

For a list of other stakeholders the ALRC has identified, please see Appendix 2.