Presentation by ALRC Legal Officer, Amanda Alford. Jasper Hotel, Melbourne, 23 November 2012
It is a pleasure to be here this morning. I grew up in country Victoria, near Shepparton, on Yorta Yorta land. I see some familiar faces, so I pay my respects those the Yorta Yorta people present here this morning and I also acknowledge the traditional custodians of the land the Wurundjeri People and their neighbours the Boon Wurrung people of the Kulin Nation, and pay respect to their elders past and present.
Given that Sunday is the International Day for the Elimination of Violence Against Women and there are a number of events planned in Melbourne later today, the timing of this conference is important. The theme of this conference is ‘Standing Firm for Change: A Journey for Justice’. The idea of a journey for justice is particularly apt when talking about the ALRC’s work because our inquiries themselves are a journey, and it is our hope that their place in the broader policy context represents one step in the journey for justice.
This morning I would like to reflect on two of our recent inquiries, both in relation to family violence. During this session I intend to:
- provide a brief overview of the two inquiries and a selection of the key overarching issues and perspectives of particular relevance to Aboriginal and Torres Strait Islander peoples which emerged from both;
- talk about our process, including consultation and engagement with Aboriginal and Torres Strait Islander peoples; and
- outline the ALRC’s work moving forward, the way Aboriginal and Torres Strait Islander peoples can be actively involved in the process of law reform and discuss your thoughts on the next step on the journey for justice.
First family violence inquiry
In March 2009, the National Council to Reduce Violence against Women and their Children released Time for Action, a report on violence against women in the Australian community. The report included a number of recommendations, including that the ALRC should undertake an inquiry into family violence laws in Australia. The ALRC and the NSWLRC subsequently received Terms of Reference from the Attorney-General to consider:
- the interaction in practice of State and Territory family/domestic violence and child protection laws with the Family Law Act 1975 (Cth) 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 these issues the Commissions were asked to consider “what, if any, improvements could be made to relevant legal frameworks to protect the safety of women and their children”.
In November 2010, we published the Final Report, Family Violence—A National Legal Response (ALRC 114), which contained 187 recommendations for reform.
Second family violence inquiry
In July 2010, following on from the first inquiry into family violence, we were asked to inquire into the treatment of family violence in Commonwealth laws (other than the Family Law Act 1975), and to identify what improvements could be made to relevant legal frameworks to protect the safety of those experiencing family violence. Specifically, we were asked to look at child support and family assistance law, immigration law, employment law, social security law and superannuation law and privacy provisions. We took safety to mean both safety from harm and also financial security and independence.
The Final Report, Family Violence and Commonwealth Laws—Improving Legal Frameworks (ALRC 117), was launched by the Attorney-General on 8 February 2012 and contained 102 recommendations for reform.
Family violence and Indigenous peoples
Definition of family violence
A common issue in the course of the inquiries was the need for a common interpretative framework with respect to family violence. This framework necessarily encompasses a broader definition of family violence that would acknowledge the experiences of Indigenous victims in light of current definitional inadequacies.
We formed the view that adopting consistent definitions of family violence across different legislative schemes sends a clear message about what constitutes family violence. As a result, in the first family violence inquiry we recommended that state and territory family violence legislation as well as the Family Law Act 1975 (Cth) provide that family violence is: “violent or threatening behaviour, or any other form of behaviour, that coerces or controls a family member or causes that family member to be fearful”.
We recommended that such behaviour may include, but is not limited to, a range of things, including: physical violence; sexual assault; economic, emotional or psychological abuse; kidnapping or deprivation of liberty; damage to property; and exposure of a child to the effects of family violence.
By way of example, Indigenous stakeholders expressed particular concern about the use of economic abuse as a method of power and control, for instance through ‘humbugging’— the practice of demanding money from relatives.
Further, with respect to emotional and psychological abuse or intimidation and harassment, the Commissions recommended that legislation should include examples illustrating conduct that would affect certain groups, including Indigenous persons. For example, a form of abuse to which Indigenous people may be particularly vulnerable is one involving the prevention of a person from making or keeping connections with the person’s family, friends or culture, including cultural or spiritual ceremonies or practices.
In the second family violence inquiry, to ensure consistency in the treatment of family violence across Commonwealth laws, we recommended that a common definition of family violence be inserted into relevant Commonwealth laws and other guidelines and material.
In developments since the ALRC inquiries, on 24 November 2011 the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) (the amending Act) passed through the Australian Parliament. The amending Act introduced a range of amendments to the Family Law Act, including the introduction of a new definition of family violence. The amending Act was introduced as a response to the reports by Richard Chisholm, the Family Law Council and the Australian Institute of Family Studies. The Act does not respond directly to ALRC recommendations —the Australian Government is still considering the Commissions’ reports. Nonetheless, the amending Act substantially implements the definition of family violence recommended by the ALRC and it was clearly influential in the form of the amending Act.
The limits of law
The family violence inquiries covered a range of legislative regimes and made numerous recommendations for reform, many of which the Commissions consider will assist in ensuring justice for all victims of family violence. However, in making recommendations we also necessarily recognise the limits of law and the need for responses that go beyond legal frameworks in responding to and addressing family violence as well as resource limitations faced by organisations represented here this morning and noted by the previous speakers.
This is why conferences like this one are so vital, to bring together people like you who can stand firm for change on the journey for justice. We hope our work assists you to do so.
First family violence inquiry
Some of the key overarching issues and perspectives of particular relevance to Aboriginal and Torres Strait Islander peoples which emerged during the first inquiry include:
Access to services and facilities
Difficulties with the accessibility and availability of culturally-sensitive and appropriate services and facilities was emphasised by numerous stakeholders throughout the inquiry.
One particular recommendation was that state and territory governments should ensure that support services are in place to assist persons in need of protection to apply for a protection order without involving police, and that these should include services specifically for Indigenous persons. Throughout the first family violence report, the ALRC emphasised the vital importance of culturally appropriate service provision. In particular, we strongly suggested or recommended:
- providing cultural awareness education and training for police, prosecutors, the legal profession, judicial officers, and victim referral and support services;
- prioritising the provision of, and access to, culturally appropriate victim support services, such as legal advice (including specialised legal advice and representation for Indigenous women), counselling and other support services but ensuring victims are able to choose whether to access culturally-specific services;
- ensuring the provision of professional translating and interpreting services where required and/or requested; and
- introducing or re-introducing Indigenous-specific victim liaison, support and advocacy positions throughout the legal system, including within the police, the courts and service providers.
A key element of the challenge to victims of family violence in accessing legal remedies is the fragmentation of the legal system. For example, a victim of family violence may potentially be involved in legal proceedings in a court with jurisdiction under the Family Law Act, a Magistrates Court as well as a Children’s Court. As a result, a victim may be required to attend or give evidence in a range of jurisdictions.
In addition to the difficulties faced by all victims of family violence in such circumstances, there are many compounding factors faced by Indigenous people in attending or participating in court proceedings. These include:
- logistical difficulties, including transportation and movement between communities;
- fear of giving evidence in open court;
- feelings of shame, blame and privacy concerns associated with not wanting issues publicly aired as well as community/family pressure through presence in court;
- language barriers and difficulties in giving oral evidence, including judicial attitudes towards the necessity of interpreters; and
- the potential for cross-examination of a victim by a person who has allegedly used violence.
Where possible we made comments and recommendations as to procedures and services which may assist in ameliorating these difficulties, including provision of information and assistance, safe rooms and other safety measures, Indigenous Liaison Officers and interpreters, as well as the use of pre-recorded evidence closed courts.
Training, education and awareness
It is clear there is a need to ensure regular and consistent training for participants in the family law, family violence and child protection systems, in relation to the nature and dynamics of family violence, including its impact on victims, in particular those from vulnerable groups such as Indigenous people.
More specifically, in order to ensure the experiences and needs of Indigenous people in those systems are adequately acknowledged and addressed, there is also a need for training and education in relation to:
- Indigenous culture and familial norms/dynamics;
- local Indigenous communities and local issues and circumstances;
- Indigenous experiences of, and responses to, family violence;
- interviewing and working with Indigenous people; and
- Indigenous child sexual assault dynamics, indicators, impacts and reporting.
Second Family Violence Inquiry
Some of the key overarching issues and perspectives of particular relevance to Aboriginal and Torres Strait Islander peoples which emerged during the second Inquiry include:
We made a range of overarching recommendations about the need for consistent, regular and targeted education and training, including in relation to the nature, features and dynamics of family violence and its particular impact on Indigenous peoples. We also recommended that such information be included in relevant policy guides to provide guidance to decision makers about the relevance of family violence to Indigenous peoples who experience family violence.
A crisis payment helps a person in severe financial hardship who has experienced an extreme circumstance such as family violence.
Let me recount a useful case study: A client was refused [a crisis payment] because she was living rough in a tent in the river bank in a small town. She couldn’t go back to her tent, or shift camps because the perpetrator would find it very easy to access her. She seemed like an ideal customer for crisis payment but it was refused even on review because her home didn't’t fit into the definition.
We made a number of recommendations to overcome barriers for victims of family violence in accessing crisis payments—including removing the requirement for crisis payment that either the victim or the person using family violence must have left the ‘home’.
Employment—national education and awareness campaign
A central theme that emerged in the course of the second inquiry was the need for increased awareness and effective education and training about family violence in an employment context. As a result, we recommended that the Australian Government initiate a national education and awareness campaign in relation to family violence and its impact in the employment context. We suggested the campaign could encompass a range of issues and could also include assistance, information and support for particular groups who have specific needs or perspectives such as Indigenous employees and employers, who may face particular issues with respect to family violence in an employment context.
Child support—removing limitations on informal carers
Carers of children who are not parents or legal guardians (informal carers) may be eligible for child support payments in limited circumstances. Informal carers are usually relatives—most commonly grandparents—and in Indigenous communities they may be kinship carers.
We consider that informal carers should have improved access to child support payments, particularly when care arrangements are due to family violence. We recommended that the Australian Government consider amending the child support legislation to remove the limitations on informal carers’ child support eligibility. If these are not removed, the ALRC recommended that the Australian Government should broaden the eligibility criteria for child support in cases where informal carers are caring for children who have experienced family violence.
Indigenous engagement in the inquiries
In the course of the two inquiries we were conscious of ensuring that the experiences and concerns of Indigenous people were appropriately recognised and addressed. We have built some excellent relationships with Indigenous organisations and individuals over the last few inquiries, however we are acutely aware of the need to build upon the relationships forged with Indigenous organisations during the family violence inquiries and to foster new relationships with organisations relevant to particular terms of reference in future inquiries.
The focus of the inquiries has been on the interaction of, and improvements to, legal frameworks and laws in Australia. In line with this, our approach was to consult with experts and representative organisations that were best placed to comment on the interaction of relevant laws and their operation in practice, rather than affected individuals within communities. We took this approach for a number of reasons, including the legal framework-based focus of the inquiry, the relatively short timeframe, available resources and the need to manage stakeholder expectations about what we could consider and subsequently recommend.
In our travels across Australia we were lucky enough to meet with Indigenous organisations in many cities and towns such as
- Wirringa Baiya Aboriginal Women’s Legal Centre
- North Australian Aboriginal Legal Aid Service
- Central Australian Aboriginal Legal Aid (CAALAS)
- Central Australian Women’s Legal Centre (CAWLS)
- Central Australia Aboriginal Family Legal Unit (CAAFLUAC) including one of my co-presenters
- NPY Women’s Council
- Roundtables involving people like Shelley Burchfield, Aboriginal Family Violence Prevention & Legal Service Victoria, and
- Consultations with people like Dorinda Cox and Victoria Hovane.
We also asked people like Dr Hannah McGlade and Emily Webster to act as expert readers across the inquiries.
In the first family violence inquiry, from the beginning of the inquiry, the ALRC sought guidance from its Indigenous Advisory Committee (established as part of the Commission’s Reconciliation Action Plan) about consultation strategies and developed an Indigenous Consultation Plan.
Since the family violence inquiries we have developed template consultation strategies for particular groups within the community that are considered at the beginning of each inquiry to ensure we appropriately involve and consider the views of ATSI people. We will be reviewing these in 2013 and would welcome the involvement of people like you in revising our consultation strategies.
In endeavoring to engage with Indigenous stakeholders we were conscious of what has been referred to as ‘consultation fatigue’, expressed in consultations and submissions as a frustration by Indigenous communities about the frequency with which individuals and organisations are consulted, without meaningful outcomes or feedback for communities.
In light of this, we did a number of things in order to highlight that the information and experiences shared by Indigenous people with the ALRC produced meaningful outcomes and to ensure stakeholders were aware of the use to which such information has been put. These included:
- summary report;
- online engagement;
- fact sheet outlining the key areas of the report of likely relevance to ATSI peoples;
- podcast focusing on Indigenous issues;
- attendance at conferences following the inquiry to discuss our recommendations. For example, the National Indigenous Legal Conference and the Indigenous Family Violence Prevention Forums in 2010 and 2011: in 2010 we led a yarning circle, and in 2011 I attended with our Indigenous Legal Officer Virginia Marshall; and
- the President and myself wrote an article published in the Indigenous Law Bulletin.
I would certainly welcome input from you all on ways to improve the accessibility of our reports.
The ALRC and the Indigenous community—the future
Building on the work done by the ALRC in implementing its Reconciliation Action Plan (RAP) and in engaging with Indigenous stakeholders throughout the family violence inquires, we acknowledge that more can be done to ensure the experiences and concerns of Indigenous Australians are reflected in the work done by the Commission.
In part, the ALRC can address this through internal strategies, further implementation of the RAP and the implementation of an Indigenous internship program. However, the ALRC also needs the support and involvement of Indigenous communities.
So what can you do?
I have outlined some of the strategies we have tried—fact sheets, summary reports, podcasts, follow-up articles and conference presentations—but I would certainly welcome input from you all on ways to improve the accessibility of our reports.
As foreshadowed earlier, in 2009 the ALRC established an Indigenous Advisory Committee (IAC) to assist in building stronger relationships with Indigenous peoples, and to ensure that the concerns and perspectives of Indigenous communities are more effectively integrated into the federal law reform process. The ALRC is currently reviewing the structure and functions of the IAC with a view to ensuring it can be more actively involved in the law reform process and would welcome expressions of interest from people interested in becoming involved in any new structure.
As mentioned earlier, next year we will be reviewing our consultation strategies and would welcome the involvement of people like you in revising them.
The ongoing involvement of Indigenous individuals and organisations in the work of the ALRC is vital to ensuring inquiries adequately reflect the experiences, needs and concerns of Indigenous people.
With respect to family violence, the ongoing work you all do is vital. We hope our reports assist you and provide a reform template for governments across jurisdictions.
Finally, I would like to invite you all to engage in an ongoing conversation with us and with each other in order to shape law reform for the benefit of all Australians. I understand the final session today will assist in developing some key proposed actions moving forward. To paraphrase some comments by our foundation chairman, the Hon Michael Kirby AC CMG, the ALRC is conscious that “we are not ‘there’ yet. But we are ‘here’. And ‘here’ is closer to...” where we were when this journey began. We look forward to taking further steps along this journey to justice, both with respect to family violence and more broadly.