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