National Aboriginal Family Violence Prevention Legal Service Annual Conference

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:  

1. 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
2. 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.

Court proceedings

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:

Improving awareness

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.

Crisis payment

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.

Consultation

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
• NAAJA
• 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. 

Feedback

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?

Report accessibility

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.

Advisory Committee

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.

Consultation strategies

As mentioned earlier, next year we will be reviewing our consultation strategies and would welcome the involvement of people like you in revising them.

Conclusion

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. 

Professor Rosalind Croucher, President, Australian Law Reform Commission, Canberra.

Introduction and welcome

Good morning and welcome to this important event. I am Professor Rosalind Croucher, President of the Australian Law Reform Commission, and it is my very great privilege to commence the proceedings.

• Attorney-General Nicola Roxon MP
• Senator Crossin
• all of you here who assisted us so willingly and well in the inquiry
• ALRC colleagues – the Commonwealth Family Violence team,
• friends.

In the presence of such eminent guests and especially the first law officer of the Commonwealth, and in this most historic place, the place of the apology, may I begin by acknowledging the Ngunnawal people, who are the traditional owners and custodians of the land on which we meet—and I pay my respects to their elders, both past and present and acknowledge Indigenous guests attending today.

And now to the occasion of today. This is an extremely auspicious occasion—to have the Australian Attorney-General here to launch the Australian Law Reform Commission’s report, Family Violence and Commonwealth Laws—Improving Legal Frameworks. It is recognition of commitment to a plan of action at the highest level to respond to violence in families.

Developing law reform recommendations for improving legal frameworks to protect the safety of victims of family violence has been a principal focus of the inquiries undertaken by the ALRC since late in 2009. What prompted this work was the report, Time for Action, released in March 2009 by the National Council to Reduce Violence against Women and their Children and the alarming cost of family violence revealed in that report. In January 2009, KPMG prepared a forward projection of costs to 2021–22 and concluded that an estimated 750,000 Australian women ‘will experience and report violence in 2021–22, costing the Australian economy an estimated $15.6 billion’. While the violence may begin in a private space, with figures like these it is very much a public issue—and a national responsibility.

Yesterday, on 7 February 2012, the second major instalment of our work was tabled in Parliament, Family Violence and Commonwealth Laws—Improving Legal Frameworks,ALRC Report 117(2011), following on from the joint report with the New South Wales Law Reform Commission, tabled on 11 November 2010, Family Violence—A National Legal Response, ALRC Report 114 (2010).

Together, these two reports provide 289 recommendations for reform, amounting to a major contribution to the Australian Government’s agenda in this troubling area. They also represent a demonstration of the value of the work undertaken by institutional law reform bodies since the great wave of law reform bodies swept across common law countries from the 1960s, in the wake of the establishment of the Law Commission of England and Wales.

The Hon Justice Michael Kirby—the ALRC’s first Chairman—considered that ‘it would be impossible to overestimate the impact of the establishment of the law commissions upon the common law world’. In 1975 the Australian government followed suit in the establishment of the Australian Law Reform Commission, an initiative of the late the Hon Lionel Murphy, as Attorney-General of Australia.

To you, Attorney-General Roxon, may I say that you are the inheritor of this tradition. You should be proud of your contribution, through the projects initiated by you and your predecessors, to the impact on the common law world imagined by the foundation Chairman of the ALRC.  

That we were given this extraordinarily challenging brief at a time of such intense concern about the impact, both in the short and long term, of violence in families, is a mark of the government’s commitment to providing a response; and a testimony to your appreciation of the impact of institutional law reform commissions to enduring law reform.

As the President of the ALRC may I congratulate you and the Government in both respects.

On this note, may I invite Attorney-General Roxon to lead the launch, after which I would like to tell you more about the answers we reached, as well as to thank all of the participants in this important work.

Attorney-General—

[The following are the parts of the Attorney-General’s speech concerning the Family Violence Report]

The Hon Nicola Roxon MP, Attorney-General of Australia

Acknowledgements

• First, I acknowledge the traditional owners of the land on which we meet and pay my respects to their elders, both past and present.
• Professor Rosalind Croucher, President, Australian Law Reform Commission
• Honourable members of the Judiciary
• Other distinguished guests

Introduction

Today I am pleased to launch the Australian Law Reform Commission’s 117th report, Family Violence and Commonwealth Laws— Improving Legal Frameworks. 

This report continues the Commission’s work following its 2010 Family Violence Report, Family Violence—A National Legal Response, which was presented in collaboration with the New South Wales Law Reform Commission.

Today’s report contains 102 recommendations for reform across government, including reforms to Commonwealth laws relating to child support and family assistance, immigration, employment, social security, and superannuation. 

The Gillard Government takes a very strong stance on family violence and child abuse and is committed to improving Commonwealth laws to respond to this issue.

Reducing all violence in our communities is a key priority for the Australian Government and ensuring the nation’s laws are compatible with this aim is crucial.

In 2011, the passage of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 demonstrated the Government’s commitment to the safety of children and sent a clear message that family violence and child abuse are unacceptable.

That Act responds to several reports, including a number of recommendations arising out of the ALRC’s first report into family violence.

Other important initiatives pursued by this Government which were generated by the ALRC’s first report into family violence include:

• through the Standing Council on Law and Justice, the development of a national response to those recommendations affecting the Commonwealth, States and Territories jointly
• the launch of a pilot of coordinated family dispute resolution in family violence cases to test a new model of supported family dispute resolution
• the launch of AVERT Family Violence, a multi-disciplinary training package for professionals to help them better understand family violence and its impacts and looking for ways to improve information sharing to better protect families in the system, and
• the development of a common risk identification framework.

While this significant work goes some way to addressing and responding to family violence and child abuse, much still needs to be done.

I would like to take this opportunity to congratulate the Australian Law Reform Commission on delivering their second recent significant report on family violence.

The Commission has made a tremendous contribution to the law reform of successive governments over the past 37 years. 

The quality and relevance of the Commission’s work continues today.       

Conclusion

I would like to conclude by thanking the Australian Law Reform Commission for its significant work towards ensuring that our system protects families and children from harm.

 [Following the Attorney-General’s speech, Professor Croucher continued]

Professor Rosalind Croucher, President, ALRC

Summary of the report

Thank you, Attorney-General Roxon, for your gracious words. I would like to follow these with a short summary of the key ideas and recommendations that the ALRC puts forward in the report. (I should note that the report is presented with its own short summary in the form of the Summary Report, a publication which now accompanies all ALRC reports).

In conducting inquiries we speak to many people and often hear things that stay with us. Like the brief, but poignant, submission of one stakeholder in the first of our family violence inquiries, that made a distinct and lasting impression on me. She wrote—

Dear Government people,

We women, we mothers, we look at you for the solutions and answers …

Over two major, and complementary, inquiries, the ALRC has provided a significant contribution to the ‘solutions and answers’ our stakeholders expect.

In the first inquiry we were asked to focus on the interaction in practice of a range of laws in relation to family violence and although it was a targeted brief, the range of interactions was extensive, involving, at a minimum, 26 legislative regimes plus all the exponential multipliers of their various interactions. It also became clear during that inquiry that a follow-on inquiry, focusing on federal laws, would be a timely and valuable addition to the considerable work completed in the first inquiry.

In this second inquiry we were given the task of looking at the treatment of family violence in Commonwealth laws, including 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. In both inquiries the focus was on identifying barriers to providing effective support to those experiencing family violence and the improvements that could be made to relevant legal frameworks—and on improving safety.

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, and by the role and function of a law reform commission.

First, in our Terms of Reference, we were asked to identify what, if any, improvements could be made to relevant ‘legal frameworks’ to protect the safety of those experiencing family violence. But ‘legal frameworks’ means much more than just legislation and includes education, information sharing and other related matters.

Development of the reform response

In developing a reform response we talk to a lot of people. We listen to a lot of people. And a lot of people put in submissions. Commitment to widespread consultation is a hallmark of best practice law reform—and this inquiry was no exception.

We released four Issues Papers online, in the discrete areas of the inquiry, followed by an extensive 770-page Discussion Paper, divided into seven separate parts, again reflecting the specific areas of the inquiry. 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. By the end of the inquiry there were 393 subscribers to the e-newsletter. In addition, the ALRC developed consultation strategies for engaging with groups who often find their voices are not heard—Indigenous peoples, those from culturally and linguistically diverse backgrounds, people with disability and members of the LGBTI community.

Peoples’ stories

During the course of the inquiry we heard many powerful stories and compelling examples of how family violence was not being recognised, or managed properly through law and service responses.

From the migration area, contributed by one stakeholder, an immigration law firm, about problems in the context of sponsored partner visas:

In our experience, some men are able to convince vulnerable women to move to Australia on the promise that he will one day marry her. However, once in Australia, the woman becomes the victim of abuse and then ultimately, the engagement is called off. Some women are falsely imprisoned in their fiancé’s homes and are regularly raped – and action justified by their abuser with the promise of marriage. Many women are financially and psychologically abused … Such cases seem to equate to sex-trafficking of women who have come to Australia in good faith. Despite this, however, these women are not entitled to rely on the family violence provisions in the Migration Regulations.

And then in the social security field, concerning the assessment of ‘separation under one roof’ for the purposes of single pension benefit, rather than maintaining the couple rate,  an example from a study prepared for the Australian Domestic and Family Violence Clearinghouse—a major contributor to both our inquiries—highlighting the compounding effect of disability in circumstances of family violence:

One woman with a disability who had made a claim was deemed ineligible. Centrelink found that her dependency on her partner for physical and occasional financial assistance meant they were still in a relationship. She expressed feeling completely trapped in the relationship, wanting to leave but unable to support herself financially or manage on her own, given her disability.

And another, concerning eligibility for ‘Crisis Payment’, this time for an Indigenous woman, an example provided by the North Australian Aboriginal Justice Agency, another major contributor to both our inquiries:

A client was refused 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 fit into the definition.

Approach to reform

How does law reform address such problems? Some reforms go to definitions—some specific and precise, some more general. Much goes to understanding and how those officers and customer service providers who apply relevant laws interpret and apply the various laws that are available to respond to circumstances of family violence. 

In developing our recommendations for reform we began by defining the conceptual framework upon which we would shape our ideas. Our recommendations in this report are underpinned by the following seven principles:

1. Seamlessness—to ensure that the legal framework is as seamless as possible from the point of view of those who engage with it. Consistency of definitions that result from this principle then informs training and awareness in service delivery areas, and facilitates better coordination of responses through appropriate information sharing and the improvement of pathways between agencies. (There is much good work going on here already—the creation of the Department of Human Services as a large combined portfolio; the AVERT initiative the Attorney mentioned)
2. Accessibility—to facilitate access to legal and other responses to family violence. An aspect here was the avoidance of victims having to re-tell the circumstances of the violence, thereby ‘re-traumatising’ victims. This was a persistent theme in both inquiries – with consequential under-reporting.
3. Fairness—there are two aspects to fairness: first, 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. We were also concerned to ensure that responses were fair in both an individual but also a system sense – a need to ensure that Australia’s resources are fairly distributed, including a fair distribution of social security benefits and eligibility for citizenship via immigration. And in the context of employment, fairness also requires consideration of what are appropriately considered to be ‘workplace’ issues and the responsibility of employers, rather than private matters for employees.
4. Effectiveness—to facilitate effective interventions and support in circumstances of family violence. To ensure that concerns about safety are properly heard, understood and responded to—an approach advocated by Professor Richard Chisholm in his Family Courts Family Violence Review in 2009.
   These first four underpinned the recommendations in Family Violence—A National Legal Response. The next three emerged as further key principles in the course of this inquiry:
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. This was a key principle in the area of compulsory income management, overriding autonomy by a concern to protect ‘vulnerable’ people.
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. This was identified as an important issue and counterweight to the possibility of ‘incentivising’ the raising of family violence to achieve a benefit of some kind—or ‘playing the family violence card’ as it has been crudely described. System integrity was a key principle in framing recommendations in the social security and migration fields.

Summary of recommendations

Let’s consider some specific examples.

How, for example, do you respond to the problem of social security entitlements in the context of couples? Improving consistency in definitions and understanding across the relevant areas is a starting point.

How do you assess ‘separation under one roof’? A key principle underlying the social security system is that relationship status determines eligibility and rates of payment—that a person who is a member of a couple receives a lower social security payment than one who is single. But what happens when that relationship is deeply fractured by family violence?

The ALRC therefore makes a number of recommendations to ensure that the impacts of family violence are expressly considered in relationship decisions in social security law through amendments to the Social Security Act 1991 (Cth) and the Guide to Social Security Law.

Another example that illustrates the tension between sensible policy objectives and the difficulty of application in circumstances of family violence is in the area of child support. It is sound policy to expect both parents to contribute to the maintenance of their children. But the continuing reassessment and negotiation of child support obligations may continue the dynamics of coercive and controlling conduct which lie at the heart of family violence and, indeed, exacerbate the situation.

I will give a final example from the employment law field. The challenge in this context is to consider what should be an employer’s responsibility for what many regard as a private or individual issue. But what emerged in our inquiry was the extent to which the line between private and public—or family life and work—is becoming increasingly unclear. As one stakeholder in this inquiry commented during a consultation, ‘workplaces are becoming our new communities and therefore they must be a place for change’.

In developing reform responses in the employment context the ALRC was mindful of the reviews of particular areas of law that are already on the horizon and we sought to feed into those the research and law reform thinking of our inquiry.

As noted at the outset, the referral of this inquiry to the ALRC is part of the Australian Government’s goal ‘to reduce all violence in our communities’. To meet the challenges of such a goal requires enormous co-operation, trust, respect, patience, commitment—and leadership. The expectations of the work of the ALRC through now two major family violence inquiries—and that of the Australian, state and territory governments in response—are also considerable.

Thank yous

An inquiry such as this requires many thank yous.

First, I thank the Attorney-General for agreeing to launch the report.

Secondly I must single out the wonderful work of the team: the legal officers of the ALRC, here today—Amanda Alford, Krista Lee Jones, Sara Peel, Khanh Hoang and Indigenous lawyer and Wiradjuri woman,Virginia Marshall; the production team, under the leadership of ALRC Executive Director Sabina Wynn with Tina O’Brien once again providing key support as Project Coordinator and typesetting everything under the sun; Carolyn Kearney, our librarian superstar, and Marie-Claire Muir—our one-woman website ‘team’ (we literally broke an arm and a leg in this inquiry!)

Thirdly, a huge vote of thanks to all those with whom we consulted, all over the country; and to those who put in submissions and contributed to our blog. The depth of engagement reflected in this process of consultation is the hallmark of best practice law reform and the ability of governments to implement them. Many of those stakeholders have been with us now for two inquiries over two and a half years.

Everyone here today has played a part. I note in particular the presence of Libby Lloyd, Chair of the Australian Government’s Violence Against Women Advisory Group, and Professor Alan Hayes, Director of the Australian Institute of Family Studies.

Many of you here today are also the ‘Government people’ being held up to find the solutions and answers.

In this report and its predecessor the ALRC has provided a singular contribution in this direction.

Thank you Attorney General. Thank you all.

Issue 11 | 8 February 2012  View original format

Final Report now available!

We are very happy to announce that the Final Report for this Inquiry, Family Violence and Commonwealth Laws—Improving Legal Frameworks (ALRC 117, 2011), was tabled in Parliament yesterday and launched by the Attorney-General, the Hon Nicola Roxon MP, today, and is now available to the public.

The ALRC’s two reports into Family Violence laws, the 2010 report, Family Violence – A National Legal Response (ALRC Report 114) and the report just tabled, together comprise 289 recommendations for reform. We believe these reports are a major contribution to the Australian Government’s agenda to improve the safety of all who experience family violence.

See Media Release >>

Once again, the ALRC team would like to thank everybody who participated in this Inquiry— those who participated in our expert panels, took part in consultations, left comments on the blog, and made formal submissions. Community involvement is fundamental to our law reform processes and we do appreciate very much the time and thought that people have put into this process. Our report is a testament to that community participation.

Both the Report and Report Summary are now freely available to read or download at the ALRC website. A limited number of printed copies, and CD-ROMs, are available for purchase, also via the website.

As foreshadowed in the last e-news, we have also compiled a series of short information  sheets, designed to provide practical examples illustrating how our recommendations, if implemented by government, might affect various parts of our community:

• Culturally and linguistically diverse communities (CALD)
• Indigenous peoples
• Lesbian, gay, bisexual, trans and intersex (LGBTI)
• People with disability (PWD)

This is the final e-news for the Family Violence and Commonwealth Laws Inquiry.  If you wish to keep informed about implementation of the ALRC’s recommendations, whether in relation to this Report or other ALRC inquiries, please subscribe to ALRC Brief.

The Australian Law Reform Commission today released its second report addressing family violence, Family Violence and Commonwealth Laws—Improving Legal Frameworks (ALRC 117, 2011). Together with its first family violence report in 2010, the two reports provide 289 recommendations for reform, amounting to a major contribution to the Australian Government’s agenda to improve the safety of all who experience family violence.

Launching the Report at Parliament House, the Commonwealth Attorney-General, the Hon Nicola Roxon MP stated, “Today I am pleased to launch this Report. The Gillard Government takes a very strong stance on family violence and child abuse and is committed to improving Commonwealth laws to respond to this issue. As an independent agency, the ALRC continues to deliver highly valuable work for consideration by government, backed up by widespread participation of the community.”

The ALRC was asked to inquire into the treatment of family violence in Commonwealth laws, and to identify what improvements could be made to relevant legal frameworks to protect the safety of those experiencing family violence. Specifically, the ALRC was asked to look at child support and family assistance law, immigration law, employment law, social security law and superannuation law and privacy provisions. The ALRC conducted 110 consultations nationally and received 160 submissions from a wide range of individuals and organisations.

ALRC President and Commissioner in charge of the Inquiry, Professor Rosalind Croucher stated, “The overall touchstone throughout our inquiry was improving safety—both actual safety from harm as well as safety through financial security and independence The net effect of the ALRC’s recommendations will ensure:

• consistency in understanding and application of the law as a result of the adoption of a common definition of family violence;
• appropriate education and training for decision makers leading to greater consistency and fairness in decision-making of family violence claims;
• better identification of, and responses to, the disclosure of family violence, including in service delivery areas;
• a greater sense of self-agency for those experiencing family violence by being provided information about family violence responses, and being able to act with confidence that such responses will be attentive to their needs; and
• that ultimately, the safety—physical, economic and financial—of people experiencing family violence will be improved.”

The recommendations in this report are underpinned by seven principles: seamlessness; fairness; accessibility; effectiveness; self-agency or autonomy; privacy; and system integrity. One of the key recommendations is that the same understanding of family violence should be used across relevant Commonwealth laws, promoting seamlessness and effectiveness in legal and other proceedings involving family violence for both victims and decision makers. Importantly, it should also enhance consistency in the treatment of family violence across the legislative frameworks, reinforced by appropriate and regular training.

Professor Croucher stated, “The ALRC heard from many stakeholders that family violence is not simply a private or individual issue, but rather a systemic one arising from wider social, economic and cultural factors. The referral of this Inquiry to the ALRC is part of the Government’s goal ‘to reduce all violence in our communities’. To meet the challenges of such a goal requires enormous co-operation, trust, respect, patience, commitment—and leadership, across many areas of government policy and service delivery. I want to thank the many stakeholders who assisted us greatly throughout this Inquiry, including those who served on our expert advisory panels.”

In addition, the ALRC has developed ‘community information sheets’ that provide a brief overview of some or the recommendations that may be of particular interest to Indigenous people, people with disability, people from a culturally and linguistically diverse background and those from lesbian, gay, bisexual, trans or intersex communities. Family Violence and Commonwealth Laws—Improving Legal Frameworks (ALRC 117, 2011) and the Report Summary are available from the ALRC’s website.

Issue 10 | 16 December 2011  View original format

Final Report delivered!

On 30 November, the Family Violence and Commonwealth Laws team delivered its Final Report to the Attorney-General. Under the ALRC Act, the Attorney-General now has 15 Parliamentary sitting days in which to table the Report. Until it is tabled, the Report is under embargo. We have also produced a short Summary Report that sets out the ALRC’s recommendations and approach to reform so as to give quick access to the Report. Once these publications have been tabled, they will be available to purchase from the ALRC’s website in hard copy, and will also be free to view or download from the website. We will let you know via this newsletter as soon as they are publicly available.

The ALRC will also release a series of short fact sheets, designed to provide practical examples illustrating how our recommendations, if implemented by government, might affect various parts of our community, for example people with disability, Indigenous peoples; the lesbian, gay, bisexual, transgender and intersex community; and culturally and linguistically diverse groups. These fact sheets will also be available to view or download from the ALRC website.

Safe at Home, Safe at Work

On 5 December 2011, legal officer Amanda Alford gave a presentation at the Safe at Home, Safe at Work conference in Melbourne, organised by the Australian Domestic and Family Violence Clearinghouse. The theme of the conference was family violence in the workplace context.

Presentations and panel discussions encompassed issues such as negotiating and implementing family violence-related entitlements through enterprise bargaining and law reform. Representatives from the ADFVC Workplace Rights and Entitlements Project also released the results of thefirst national survey into the impact of family violence in the workplace at the conference. Amanda’s presentation provided an overview of the ALRC Inquiry, in particular the employment law part, and focused on the challenges arising in the search for law reform solutions in this area. A copy of Amanda’s presentation can be accessed on the ALRC website.

At the same conference Andrea Durbach, Deputy Sex Discrimination Commissioner with the Australian Human Rights Commission spoke about Domestic violence discrimination and the consolidation of Commonwealth anti-discrimination laws, with reference to the ALRC Inquiry.

Thank you!

Thank you, thank you, thank you—to all of you who have contributed so much to this Inquiry and to the previous Inquiry we undertook with the NSW Law Reform Commission: Family Violence—A National Legal Response. Law reform work needs the committed and sustained involvement of the range of communities relevant to each inquiry. Such engagement underpins the integrity of the final reports and their law reform recommendations.

Given the time of year, may we convey on behalf of all at the ALRC our warmest wishes for the season and a happy New Year!

Amanda Alford, ALRC Legal Officer, 5 December 2011, Melbourne

Acknowledgement

I would like to acknowledge the Wurundjeri people who are the Traditional Custodians of this Land. I would also like to pay respect to their Elders both past and present and extend that respect to other Indigenous Australians present.

Introduction

Thank you for opportunity to speak. On a personal note, I was born at the Queen Victoria Hospital which once operated on this site. It is a privilege to be able to return here and speak in relation to such an important topic. I would also like to thank the Australian Domestic and Family Violence Clearinghouse (ADFVC) and URCOT and all those who have presented and engaged thus far today.

This afternoon, I will briefly outline the background to the ALRC Commonwealth Family Violence Inquiry, the process and then some of the key challenges and tensions that have arisen in the search for law reform solutions. At the outset I would like to share the sentiments of one of many of the stakeholders we consulted, that ‘workplaces are the new community’^[1]—an idea that I will come back to later.

The Inquiry

In July 2010, the then Attorney-General of Australia, the Hon Robert McClelland MP, asked the ALRC to inquire into and report on the treatment of family violence in Commonwealth laws, including 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 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 legislative arrangements across the Commonwealth that affect those experiencing family violence and whether those arrangements impose barriers to providing effective support to those adversely affected by this type of violence.

Inquiry Process

This Inquiry follows the one concluded by the ALRC in conjunction with the New South Wales Law Reform Commission (the Commissions) in October 2010. Both inquiries emanate from the work of the National Council to Reduce Violence against Women and their Children. The report, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021, was released on 29 April 2009.

In the course of the Inquiry we:

• released four Issues Papers, a Discussion Paper and a Discussion Paper Summary; and
• conducted two national rounds of stakeholder consultation meeting, forums and roundtables, including 110 consultations and received over 165 submissions.

The ALRC submitted the Final Report to the Attorney-General on 30 November; however it will not be public until the Attorney-General tables it in Parliament—an obligation under the Australian Law Reform Commission Act 1996 (Cth). As result, I am not in a position to comment on the content of our final recommendations. I can, however, comment on the Inquiry process, stakeholder views and ALRC thinking.

Challenges/Tensions

In the course of the Inquiry, several key questions/challenges arose that underlie the ALRC’s approach in the Final Report and which reflect the issues raised by stakeholders throughout the Inquiry. The search for law reform solutions led us to answer questions like:

• Why is family violence a workplace issue?
• Should the employment law system identify and respond to address family violence? If so, how?
• Ultimately, what is the best approach to reform in this area?

Why is family violence a workplace issue?

Family violence is increasingly recognised as a significant and complex issue and one which is not simply a private or individual issue, but rather a systemic one arising from wider social, economic and cultural factors. Accordingly, effective measures to address family violence must operate in both the private and public spheres. This is particularly so in the context of employment, as the line between private and public—or family life and work—is increasingly unclear, ‘with the effects of one sphere positively or negatively influencing the other’.^[2]

As one stakeholder in this Inquiry commented during a consultation, ‘workplaces are becoming our new communities and therefore they must be a place for change’.^[3]

• Effect on employees—many people experiencing family violence face ongoing difficulties in gaining and retaining paid employment and in disclosing family violence where it may have an impact on their employment. We heard numerous instances in which family violence has entered the workplace. I understand the results of the ADFVC survey will be launched later today and that it provides data which illustrates this. Essentially, family violence can have a significant effect on employees, co-workers and workplaces and, more broadly, workplace productivity and safety.

• Benefits of employment for victims—employment may afford victims of family violence a measure of financial security, independence, confidence and, therefore, safety.

• Social and economic cost of family violence—family violence also generates an enormous economic and social cost, with broader implications for employers and the economy. Family violence is projected to cost the Australian economy an estimated $15.6 billion in 2021–22.^[4] In 2004, it reportedly cost the corporate and business sectors over $1.5 billion through direct costs.^[5]

The employment law system in Australia is premised on the need to provide a balanced framework that promotes labour market engagement, economic productivity and social inclusion. In light of the enormous social and economic costs of family violence, and the high proportion of people experiencing it who are employed, ensuring the employment law system appropriately identifies, responds to and addresses family violence, is central to achieving these aims.

What are the issues and how can the employment law system identify and respond to address family violence?

There are a range of overarching issues we considered throughout the Inquiry, including:

• the definition of family violence;
• barriers to disclosure, particularly in an employment context;
• privacy and confidentiality; and
• verification of family violence.

In addition to these overarching issues, we also considered family violence and its impact in the employment law context. The employment law landscape is one in which significant changes have occurred over last few years. The introduction of the Fair Work Act 2009 (Cth) was controversial—and the result of extensive consultation with stakeholders throughout the drafting process. The present ALRC Inquiry comes not long after the conclusion of extensive consultation and negotiation around Fair Work Act, its introduction (the application of which is still playing out), and shortly before a planned Post-Implementation Review of the Fair Work Act.

The objects of the Fair Work Act reflect, on the one hand, the need to provide a legislative framework which is flexible for businesses and promotes productivity and economic growth and, on the other, the desire to ensure the framework is fair and protects the rights of employees to a guaranteed safety net, flexible working arrangements and fairness and representation at work.

The need for a balanced legislative framework was the main challenge faced by the ALRC in considering what improvements could be made to the Fair Work Act to protect the safety of those experiencing family violence, while ensuring recommendations are also consistent with the objects of the Act.

The key areas the ALRC has examined in the course of the Inquiry and ultimately made recommendations with respect to include:

• workplace occupational health and safety;
• flexible working arrangements;
• the need for rights and entitlements;
• statutory protection from discrimination; and
• awareness, education, training and relevant policies.

Workplace occupational health and safety

The Work Health and Safety Bill 2011 (Cth) was introduced in July 2011 as part of a harmonisation process to introduce model OHS legislation across Australia. Mirror legislation has also been introduced in a number of other Australian jurisdictions.

Throughout the Inquiry, stakeholders expressed a divergence of views about the circumstances in which family violence may give rise to a duty of care under the Model Act—if at all.

Safe Work Australia emphasised that, while recognising family violence may ‘impact on the workplace, it is not a risk that arises from the conduct of a business or undertaking or work itself’ and is therefore ‘beyond the scope’ of the model work health and safety laws.

However, numerous stakeholders expressed the view that, in some circumstances, family violence may be an OHS issue. The ALRC considers that in some circumstances, where family violence-related incidents occur in the workplace and affect the health and safety of workers in that workplace, that PCBUs may well owe a primary duty of care. The analogy with other forms of workplace violence is a useful one. A PCBU owes a duty to ensure, so far as is reasonably practicable, the health and safety of workers and provision of a safe working environment, which encompasses the potential risk posed by internal, external or client-initiated violence. The existence of a worker’s intimate relationship does not alter that duty.

The purposes of the OHS system are to protect workers and other persons against harm to their health, safety and welfare. Accordingly, to the extent that the OHS system is achieving its purposes, this should be synonymous with the protection of workers experiencing family violence where it poses a risk to their health, safety or welfare in a work context.

Flexible working arrangements

There is a need to ensure that workplace responses to family violence are consistent, but also sufficiently flexible to allow an employee and employer the opportunity to tailor specific working arrangements to meet the needs of both parties.

(i) Family violence clauses in enterprise agreements

We have spoken this morning about the inclusion of family violence clauses in enterprise agreements. A number of stakeholders considered that the inclusion of family violence clauses in enterprise agreements is a ‘positive move to protect the safety and industrial rights of [people] who have experienced family violence, which has resulted in a negative impact on their work entitlements’.^[6] Employer groups emphasised that such clauses are and should be negotiated on a voluntary basis and that one-size does not fit all.

This suggests, perhaps, that such clauses should not be mandatory, but that they do represent a positive development and at a minimum should contain a number of basic requirements. Beyond that however, given enterprise agreements are negotiated at an individual workplace level, the inclusion of a family violence clause will necessarily be the product of agreement between the employer and employees (or employee organisations) as to the nature and content of the clause, in light of the specific circumstances of the workplace.

(ii) Individual flexibility arrangements

While individual flexibility arrangements (IFAs) may act as one mechanism through which to account for the needs of employees experiencing family violence, they may not necessarily be the most appropriate in the family violence context. However, the ALRC acknowledges the potential role IFAs may play in some circumstances where an employee is experiencing family violence and suggests the most appropriate approach may be by focusing on amending existing guidance material on negotiating IFAs to include where an employee is experiencing family violence.

The need for rights and entitlements

(i) Modern awards

The ALRC considers that the Fair Work Act is sufficiently broad to allow scope for the inclusion of family violence-related terms in modern awards.

The key Australian precedent for the recognition of family violence in awards is the Crown Employees (Public Service Conditions of Employment) Award 2009 (NSW), amended in 2011, under which NSW public servants are entitled to five days special leave and use of other forms of leave for the purposes of responding to family violence, as well as flexible working arrangements. There are also a range of other NSW awards which have now been varied to include family violence provisions. While the NSW Crown Employees Award is a state award, the provision provides a useful guide as to the way an award may incorporate a family violence provision.

Ultimately however, the ALRC considers that, rather than proposing the inclusion of a new allowable term (which is probably unnecessary in any event), or outlining the form in which family violence-related terms may be incorporated into modern awards, it may be more appropriate to defer consideration of these issues as part of the FWA reviews of modern awards in 2012 and 2014.

(ii) The National Employment Standards

In the course of this Inquiry, two key questions arise when considering amendment to the National Employment Standards (NES)—first, why include provisions relating to family violence, as opposed to other grounds? Secondly, why in the NES, as opposed to other workplace instruments and policies?

Given the prevalence of family violence and its affect on employees, workplaces and productivity, the ALRC considers that the NES, in particular with respect to extending the right to request flexible work arrangements and provisions for family violence-related leave (whether as part of personal leave or separate new form of leave), could play an important role in responding to family violence when it becomes a workplace issue.

While important, the ADFVC argues that mechanisms other than statutory entitlements alone are inadequate, as statutory entitlements are ‘fundamental to achieving widespread change to address the impact of family violence in the workplace’. This is in part because provision of such entitlements acknowledges that ‘dealing with family violence is a community rather than just an individual responsibility’. It is also important in ensuring enforceability and consistency.

The ALRC acknowledges amendment to the NES would involve a significant change to the Fair Work Act framework after already extensive consultations surrounding the introduction of the Act. In addition, there is a need to build a further foundation for any such changes, in order to balance the needs of employees with the economic and practical realities faced by businesses and employers.

Statutory protection from discrimination—general protections and anti-discrimination legislation

Some stakeholders suggested that as a matter of priority there needs to be statutory protection from discrimination on the basis of status as a victim/survivor of family violence. They emphasised this is particularly important where people experiencing family violence are increasingly able to access workplace entitlements such as flexible working arrangements and leave on this basis.

Some victims of family violence are subject to discrimination and adverse treatment in the workplace as a result of their experiences of family violence. It appears that current general protections provisions under the Fair Work Act offer limited protection.

The ALRC has taken the view that whether family violence should be included as a separate ground of discrimination under the Fair Work Act should be considered in the context of anti-discrimination law more generally. However, the question of whether FV should be included as a protected attribute under anti-discrimination legislation falls outside the TOR. Nevertheless, in the course of the Inquiry numerous stakeholders expressed support for such an inclusion and the ALRC examined possible ways in which the issue could be considered on a Commonwealth level, in particular in the course of the current consolidation of anti-discrimination law. Fellow speaker Andrea Durbach (Deputy Sex Discrimination Commissioner) is in a better position to comment further on this matter.

Awareness, education, training and relevant policies

The final issue/response I wish to briefly touch on is the need for increased awareness, education, training, and relevant policies.

Stakeholders voiced concerns about the lack of government coordination and the short-term focus of current government-funded initiatives in this area. The ALRC heard about the need for a national whole-of-government approach to education and increasing awareness in this area. This approach should be gender-neutral, coordinated, and focused on family violence and its impact in the employment context, as distinct from other forms of violence, bullying or harassment. The approach must be coordinated, adequately resourced and ongoing throughout implementation of reform in this area.

Ultimately, the ALRC is of the view that increased awareness of family violence as a workplace issue and associated education and training are vital and must form one of the foundations for reform in this area.

Conclusion

This is a summary of some of the key challenges and issues which arose during the Inquiry. I am happy to take questions, but I note again that I am not in a position to indicate the content of final recommendations.

• Thank you to all stakeholders for engagement, enthusiasm and passion.
• The ALRC’s recommendations will play an important part of reform in this area. The ALRC’s recommendations overall have a high implementation rate, as indicated in our Annual Reports, and there has certainly been positive Government engagement in the Inquiry.
• I also want to emphasise the importance and impact of the Inquiry more broadly. It has placed this issue on the national agenda, we have been discussing and informing stakeholders, and ultimately the report will provide an academic basis for future work.
• It is a difficult area, but we are confident we have struck the right balance. The ALRC acknowledges that the Inquiry concerns only a narrow slice of the vast range of issues raised by the prevalence of family violence, and that law alone is not a sufficient response to family violence.

If workplaces are ‘the new community’, given the prevalence and impact of family violence, then employer organisations, unions, employers, employees and all those associated have a role to play in responding to and addressing family violence. The Report will undoubtedly provide fuel for further discussion and Government action. Our hope is that all stakeholders who have given so freely of their time and expertise and who have advocated so passionately continue to engage around this issue.

Issue 9 | 28 October 2011  View original format

Firstly, we would like to thank all our stakeholders who made submissions in response to the Discussion Paper.  We received over 80 formal responses to the DP, which brings us to a total of over 160 submissions to the Inquiry. The public submissions are published on the ALRC website.

See submissions >>

This month, Professor Rosalind Croucher and Virginia Marshall, Senior Legal Officer, visited Brisbane and Perth for consultations with Indigenous stakeholders, primarily to identify Income Management issues. In Perth, the ALRC consulted with organisations such as the Aboriginal Family Law Service WA, the Aboriginal Legal Service WA, Beananing Kwuurt Institute, Legal Aid WA and Western Australian Council Of Social Service. In Brisbane, we consulted with Queensland Council Of Social Service and National Aboriginal Torres Strait Islander Women’s Alliance. In Canberra, we also consulted with the Equity Rights Alliance. Another trip to Perth, by Professor Croucher and Amanda Alford, Legal Officer, included consultations canvassing employment aspects of the Inquiry.

Last month, members of the team attended the 1^st Annual LGBTIQ Domestic Violence Conference, held in Sydney and organised by the NSW LGBTIQ Domestic Violence Interagency Working Group. This provided an opportunity to hear about projects and programs involved in providing assistance to LGBTIQ victims of family violence. For a brief description of the event, see, ‘More help needed for LGBTIQ facing violence at home’

The team has also, during this period, contributed articles to relevant publications, including:

• Khanh Hoang, “The ALRC’s Inquiry into Family Violence and Commonwealth Laws”,  in the September Edition of Parity (the national publication of the Council to Homeless Persons);
• Sara Peel and Rosalind Croucher, “Mind(ing) the gap: Law reform recommendations responding to child protection in a federal system”, which is to be published in the AIFS journal Family Matters; and
• Virginia Marshall contributed a short piece about the Discussion Paper to the Workers Bush Telegraph and attended the National Indigenous Legal Conference in Sydney.

Through November the team is conducting internal recommendations workshops and convening expert roundtables, as well as writing, on track for hand-over of the Final Report to the Attorney-General on 30 November.

Beyond that, on 5 December 2011, legal officer Amanda Alford will be presenting at the ‘Safe at Home, Safe at Work’ Conference in Melbourne organised by the Australian Domestic and Family Violence Clearinghouse. Amanda will be discussing the Inquiry with a specific focus on family violence and employment law as well as participating in a panel discussion with Deputy Sex Discrimination Commissioner Andrea Durbach and representatives from the Australian Chamber of Commerce and Industry and the Australian Council of Trade Unions. Further information >>

In the last e-newsletter, sent while many of you were still in the process of writing your submissions, we asked for your feedback about the Discussion Paper and the Discussion Paper Summary. Now that submission writing is done and dusted, we would really like to hear from you about how you used these publications in preparing your submissions, and what you do and don’t find useful about these formats. Please leave your comments on the blog post, or if you’d rather comment confidentially, you can simply email feedback@alrc.gov.au.

Issue 8 | 7 September 2011  View original format

Calling for feedback

As readers will be aware, on 19 August we released a Discussion Paper. Those of you who are referring to the full Discussion Paper as you write your submissions might perhaps have noticed that it’s big. Very big.  It’s really seven DPs in one, given the coverage of the discrete areas under review.

First, a few words about that. The ALRC carries out a lot of research and consultation before we come up with the questions and proposals that we put to our stakeholders. We believe that is important that all of this work is fully documented. These documents are a reference for stakeholders requiring detailed explanation, they ultimately provide an evidence base for our final recommendations for reform, and they also become valuable reference material for other researchers in the field. But yes, all that documentation can become a little unwieldy.

Enter, the Summary Paper.   The practice of producing separate summary versions of Discussion Papers and Final Reports is a relatively new one for the ALRC.  The intention is to help stakeholders access and grasp the key issues quickly, without getting bogged down or bewildered by too much detail.  The Summary Paper aims to provide the essential minimum for easy access to the ALRC’s thinking, particularly for stakeholders who already have considerable understanding of the various issues under review.

The Family Violence- Commonwealth Laws Discussion Paper Summary is probably the shortest summary document we’ve produced to date. After a brief introduction and overview, it provides a short abstract of each chapter, followed by the questions and proposals contained in that chapter. We would like to know if we’ve achieved the right balance with this formula.

As you write your submissions for this Inquiry (due 30 September!), and the experience of using these Discussion Papers is fresh, we’d really welcome any feedback about how you are using these publications, and what you do and don’t find useful.

Provide feedback  >>

Ongoing consultations

Following the release of the Discussion Paper the ALRC has begun undertaking a second round of consultations with key stakeholders.

Recently several members of the ALRC met with the Sex Discrimination Commissioner, Aboriginal and Torres Strait Islander Social Justice Commissioner, Deputy Sex Discrimination Commissioner, Executive Director and members of the Disability Rights and Sex and Age Discrimination units of the Australian Human Rights Commission to discuss the Inquiry. Next week members of the team will attend a meeting of the Superannuation Consultative Committee Secretariat of the ATO and will also attend the 1st National LGBTIQ Domestic Family Violence Conference. In addition, over the next month consultation trips are planned to Canberra, Brisbane and Perth and many consultations will also be conducted in Sydney and by telephone.

Consultations are a crucial way for the ALRC to engage with a range of stakeholders around Australia, as are the invaluable contributions of stakeholders in making written submissions that the ALRC can then draw upon in writing the Final Report.

At the end of July we told you to expect this Discussion Paper in the first week of August:  we do apologise for the delay and thank you for your patience. Commissioner in charge of the Inquiry and ALRC President Professor Rosalind Croucher described the process as rather like ‘unravelling a jumper—or in this case, several jumpers—as the threads of each of the very distinct parts of the Inquiry were explored’. The deadline for submissions has been extended to 30 September 2011

We have actually produced two documents. The full Discussion Paper provides a detailed account of our research and reasoning to explain how the ALRC arrived at the questions and proposals for reform. It is a very large document (approx 750 pages) which we trust will be of assistance to stakeholders who require more detailed background information, and be a valuable resource down the track. The Discussion Paper is available only online, in html and as PDFs for each of the seven areas.

Because we appreciate the time constraints on stakeholders and the impracticality of asking all respondents to tackle the full Discussion Paper, we have also produced a brief Summary Paper. It gives informed stakeholders easy access to the principles on which our ideas are based and what we are actually suggesting. We anticipate that most stakeholders will simply refer to the Summary Paper when developing submissions. The Summary Discussion Paper is available online. If you are unable to download your free copy of this Summary, the ALRC has a limited number of hard copies available.

Access Discussion Paper, Family Violence and Commonwealth Laws (DP 76) >>

Access Summary Discussion Paper >>

We strongly encourage respondents to use the online submission forms we have developed for this phase of the consultation.

This Inquiry is large in scope and there are many questions and proposals for reform. We have created separate forms for each of the different areas of law (eg, migration law, employment law, family assistance, etc) to help simplify the process. This means that if you are only, for example, interested in the area of employment law, you need only respond to that section of the Discussion Paper, using the relevant form.  Of course, you may respond to as many of the sections as you wish. You are not required to respond to each and every proposal within a form.

• DP 76 Part A – Common Threads (Chapters 3-4)
• DP 76 Part B – Social Security (Chapters 5-8)
• DP 76 Part C – Child Support and Family Assistance (Chapters 9-12)
• DP 76 Part D – Income Management (Chapter 13)
• DP 76 Part E—Employment (Chapters 14-18)
• DP 76 Part F – Superannuation (Chapter 19)
• DP 76 Part G – Migration (Chapters 20-22)

You can also provide your submission via email, mail or fax.

See ALRC’s media release >>

The Australian Law Reform Commission (ALRC) today released its Discussion Paper for the current Inquiry into family violence and commonwealth laws, Family Violence—Commonwealth Laws (DP 76), and is calling for submissions on over 30 proposals for reform.

In November 2010, the ALRC (with the NSW Law Reform Commission) completed its first inquiry into family violence with the release of the report, Family Violence—A National Legal Response (ALRC Report 114, 2010). That report contained recommendations for reform focused on improving the interaction in practice of state and territory family violence and child protection laws with the Family Law Act and relevant criminal laws; and in relation to inconsistent interpretation of laws in cases of sexual assault in the family violence context.

This second inquiry concentrates on the treatment of family violence in specific areas of Commonwealth law—including child support and family assistance law, immigration law, employment law, social security law, superannuation law and privacy law.

ALRC President Professor Rosalind Croucher said, “At this time, the ALRC has decided to make available a printed Summary Discussion Paper that provides an accessible overview of the policy framework and the proposals and questions contained in the full Discussion Paper. The full Discussion paper is only available online from the ALRC’s website, and is divided into parts reflecting each of the areas under review. The Discussion Paper sets out in detail the issues raised by the Terms of Reference, the research behind the proposals and questions and a thorough analysis and discussion of stakeholder views and the ALRC’s views to date. The Summary—also available online—is designed specifically with stakeholders in mind, acknowledging the substantial involvement of many already in the Inquiry, and the familiarity with the issues as set out in the four Issues Papers released in February and March 2011 and subsequent round of consultations. It provides the essential minimum for easy access to the ALRC’s thinking at this critical stage in the Inquiry and is designed for stakeholders with considerable understanding of the various issues in focus in the particular areas under review. In this way we are hoping to facilitate the community’s response to the complex issues that this Inquiry has raised.”

 “In the National Plan to Reduce Violence Against Women and Their Children, the Australian Government has identified a clear goal ‘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’. The overarching objective of this Inquiry therefore reflects the Government’s objective—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. The overall touchstone throughout the chapters and proposals, however, is one of improving safety.”

Proposals in the Discussion Paper focus around the issues of Social Security, Child Support and Family Assistance, Income Management, Employment, Superannuation and Migration. The ALRC invites individuals and organisations to make submissions in response to the specific proposals and questions, or to any of the background material and analysis provided, to help advance the reform process in this Inquiry.

In order to ensure consideration for use in the final report, submissions addressing the questions and proposals in this Discussion Paper must reach the ALRC by Friday 30 September 2011.

Submissions may be made in writing, by email or using the ALRC’s online submission form. The ALRC encourages stakeholders to use the online submission form available from the ALRC’s website, www.alrc.gov.au.

To receive updates on this Inquiry, subscribe to the Commonwealth Family Violence e-Newsletter.

The Final Report is due to be presented to the Attorney-General on 30 November 2011.