Framework for reform

The specific objective of this Inquiry is to improve safety for women and children in the context of family violence through recommendations for reform of legal frameworks. In this context, the idea of ‘frameworks’ extends beyond law in the form of legislative instruments to include education, information sharing and other measures to improve police and prosecutorial practice. The overall touchstone throughout the chapters and recommendations, however, is one of improving safety and that where laws are in place, they need to be effective.

Development of the reform response

Commitment to widespread consultation is a hallmark of best practice law reform. In undertaking this Inquiry, and in developing a comprehensive response to the Terms of Reference, the Commissions embarked on a wide consultative process as described in Chapter 1 of the Report. For this Inquiry, a multi-faceted consultation strategy was required—using a broad mix of face-to-face consultations and roundtable discussions; online communication tools and the release of a Consultation Paper together with a companion Consultation Paper Summary.

Two hundred and thirty-six consultations were conducted nationally to reach key stakeholders around the country, including many groups representing Indigenous clients. Internet communication tools were also integrated into the consultation process, to provide information and obtain comment. A monthly e-newsletter highlighted an ‘issue in focus’ and the comments received provided an important additional means of input. By the end of the Inquiry there were 965 subscribers to the e-newsletter.

The Consultation Paper was a major publication, running to 1,018 pages. To facilitate stakeholder contributions in the restricted time frame for this Inquiry, the Commissions simultaneously released a Consultation Paper Summary of 243 pages. However, the enduring nature of law reform projects is such that the research and evidence base, on which recommendations are based, must be fully explored and reported.

The Commissions received 240 submissions from a wide range of people and agencies including: individuals; academics; lawyers; community legal centres; law societies; women’s centres and legal services; support services for men, women and children; Indigenous legal and other services; directors of public prosecutions, both Commonwealth and state and territory; state governments; government departments and agencies, both state and federal; victims’ support groups and rape crisis centres; and judicial officers, including heads of jurisdiction.

Submissions ranged from very detailed submissions addressing the many questions and proposals in the Consultation Paper to passionate and personal stories of disaffection and dismay with the way the legal and welfare systems—principally the Family Court—affected individuals.

Principles for reform

The framework for reform in this Inquiry is set out in Chapter 3 of the Report. In summary, the recommendations in the Report are underpinned by four specific principles or policy aims that relevant legal frameworks in this Inquiry should express: seamlessness, accessibility, fairness and effectiveness:

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

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

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

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

The reform principles are reflected in an interlinking suite of recommendations addressing both Terms of Reference, plus a specific set in relation to particular aspects of the second Term of Reference. The principles express, at a policy level, the foundation of the recommendations.

Presentation of report

The Report is divided into eight parts—as the lens through which the interaction issues were considered. The arrangement of material in this way was a pragmatic one to make the consideration of the wide-ranging area of the Inquiry more manageable through the dissection of issues.

Part A, Introduction, comprises three chapters: Chapter 1, an introductory chapter; Chapter 2, focused on the international and constitutional settings for the Inquiry; and Chapter 3, setting out the framework for reform, including a consideration of the specific principles or policy aims on which the recommendations are based.

Part B, Family Violence—A Common Interpretative Framework, comprises four chapters. Chapter 4 considers the purposes of the various laws under review in the Inquiry. Chapter 5 then focuses on the definition of family violence in family violence legislation and considers the desirability of attaining a common understanding of what constitutes family violence across family violence legislation. Chapter 6 considers the definition of family violence in other legislative schemes, including the Family Law Act, and in the criminal law—and explores the relationship between the definitions in those schemes and in family violence legislation. Definitions form one limb of a common interpretative framework, complemented for example, by guiding principles and statutory objects, which are discussed in Chapter 7.

Part C, Family Violence and the Criminal Law, considers the interaction between family violence legislation and criminal laws. Chapters 8–10 consider the interaction between family violence laws and state and territory criminal procedures, with a focus in Chapter 9 on the role of police. Chapters 11–12 focus on family violence protection orders and the criminal law, including the issue of breach. Chapter 13 considers the recognition of family violence in offences and sentencing, and Chapter 14 considers family violence issues in the context of defences to homicide, as well as the issue of recognising family relationships in criminal law responses to family violence.

Part D, Family Violence and Family Law, focuses on the interaction between state and territory family violence legislation and the Family Law Act. This part comprises four chapters. Following an introductory chapter, Chapter 13, there is a consideration of the family law interactions with, first, the jurisdiction and practice of state and territory courts—in Chapter 14; and, secondly, the jurisdiction and practice of federal family courts—in Chapter 15.

Part E, Child Protection, considers interactions between child protection laws and a range of other laws. Chapter 19 focuses on the interactions with the federal family law, while Chapter 20 considers intersections between family violence protection orders, child protection and criminal laws.

Part F, Alternative Dispute Resolution (ADR), comprises three chapters. Chapter 21 considers the regulation of family dispute resolution (FDR) by the Family Law Act and the role of FDR in cases of family violence, while Chapter 22 focuses on issues of confidentiality and the admissibility of FDR and family counselling communications. The final chapter in the part, Chapter 23, focuses on alternative processes in the context of child protection and family violence protection orders.

Part G, Sexual Assault, comprises five chapters focusing on the second Term of Reference. This Term of Reference required the Commissions to focus on the impact of inconsistent interpretation or application of laws in cases of sexual assault occurring in a family violence context, including rules of evidence, on victims of such violence. Chapter 24 outlines key background understandings of sexual assault in a family violence context, its nature and prevalence, and the response of the criminal justice system and other areas of law. Chapter 25 then describes the range of existing sexual offences and identifies inconsistencies in relation to elements of these offences, notably in relation to the issue of consent. It also discusses the role that guiding principles and objects clauses can play in attempting to mitigate the impact of laws on victims of sexual assault in a family violence context.

Chapters 26–28 highlight ways in which particular laws and procedures operate for victims of sexual assault. In some cases, where it is possible to identify certain approaches as more promising and progressive than others, the Commissions recommend that the Commonwealth, state and territory governments should implement consistent measures based on the best model. Chapter 26 discusses some of the problems that may lead to attrition of sexual assault cases at the reporting, investigation, prosecution and other pre-trial stages. Chapter 27 focuses on issues that arise at trial, notably in relation to the application of laws of evidence, and Chapter 28 on other trial processes including the giving of jury warnings and the cross-examination of complainants and other witnesses in sexual offence proceedings. Overall, these chapters examine reform aimed at reducing attrition and improving the experiences of those who have suffered a sexual assault.

Part H, Overarching Issues, the final part of the Report, comprises four chapters and focuses on some of the overarching issues considered throughout the Inquiry. Chapter 29 examines integrated responses across Australia to issues of family violence and child maltreatment including the essential elements of such responses: common policies and objectives; inter-agency collaboration; and the provision of victim support. Information sharing, which underpins effective integrated responses, is discussed in Chapter 30. Chapter 31 focuses on the practices, resources and mechanisms required to provide and maintain quality education and training in the family violence context. The chapter then considers ways in which data collection and analysis can be improved to ensure systemic change and improvement. Specialisation—in particular specialised courts—which may also be a feature of integrated responses, is discussed in Chapter 32. Given that specialised practice is identified by the Commissions as a principal reform objective in this Inquiry, this chapter is the final chapter in the Report.

Summary of key recommendations

The recommendations themselves can be viewed from two distinct perspectives—a systems perspective, and a participant perspective. The overarching, or predominant principle is that of seamlessness, and to achieve this both perspectives must be connected, to the greatest extent possible, within the constitutional and practical constraints of a federal system. This seamlessness is expressed in recommendations focused on improving legal frameworks and improving practice.

The improvement of legal frameworks will be achieved through:

  • a common interpretative framework, core guiding principles and objects, and a better and shared understanding of the meaning, nature and dynamics of family violence that may permeate through the various laws involved when issues of family violence arise;

  • corresponding jurisdictions, so that those who experience family violence may obtain a reasonably full set of responses, at least on an interim basis, at whatever point in the system they enter, within the constraints of the division of power under the Australian Constitution;

  • improved quality and use of evidence; and

  • better interpretation or application of sexual assault laws.

The improvement of practice will be achievedthrough:

  • specialisation—bringing together, as far as possible, a wide set of jurisdictions to deal with most issues relating to family violence in one place, by specialised magistrates supported by a range of specialised legal and other services;

  • education and training;

  • the development of a national family violence bench book;

  • the development of more integrated responses;

  • information sharing and better coordination overall, so that the practice in responding to family violence will become less fragmented; and

  • the establishment of a national register of relevant court orders and other information.