Background

1.1 On 17 July 2009, the Attorney-General of Australia, the Hon Robert McClelland MP, asked the Australian Law Reform Commission (ALRC) to conduct an Inquiry together with the New South Wales Law Reform Commission (NSWLRC) into particular questions in relation to family violence that had arisen out of the 2009 report of the National Council to Reduce Violence against Women and their Children, Time for Action, released in March 2009.[1] At its meeting on 16–17 April 2009, the Standing Committee of Attorneys-General (SCAG) agreed that Australian law reform commissions should work together to consider these issues.

1.2 The ALRC was asked to consider the issues of:

1) the interaction in practice of State and Territory family/domestic violence and child protection laws with the Family Law Act and relevant Commonwealth, State and Territory criminal laws; and

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.

1.3 In relation to both these issues, the ALRC was asked to consider ‘what, if any, improvements could be made to relevant legal frameworks to protect the safety of women and their children’.[2]

1.4 On 14 July 2009, the NSWLRC received terms of reference in parallel terms from the New South Wales Attorney General, the Hon J Hatzistergos.[3] A joint project of this nature, involving a state law reform body in conjunction with the ALRC, is a practical way of tackling an inquiry in relation to matters many of which lie at the intersections of—or fall between—federal and state/territory laws. During the Inquiry the NSWLRC took principal responsibility for Part E, in relation to child protection; the ALRC took principal responsibility for the remainder of the work.

Time for Action

1.5 The National Council to Reduce Violence against Women and their Children (the National Council), established in May 2008, was given the role of drafting a national plan to reduce violence against women and their children.[4]

1.6 Time for Action identified six core areas for improvement together with strategies and actions to achieve them.[5] While the report concentrated on ‘preventative measures that challenge the values and attitudes that support violence in the community’ and the need ‘to develop respectful relationships’,[6] it included recommendations that the ALRC be given references on the two specific tasks that are reflected in the Terms of Reference.[7] It was accompanied by a background paper providing a fuller discussion of the matters in the report, with more detailed references.[8]

1.7 Further background documents include: Domestic Violence Laws in Australia,[9] published by the Australian Government Solicitor in September 2009, providing an overview and comparative analysis of Commonwealth, state and territory and New Zealand domestic violence legislation; and a report, The Cost of Violence against Women and their Children,[10] published in March 2009.

The extent of the problem

1.8 Time for Action provided a summary of the extent of the problem of violence against women in the Australian community. It reported the estimate that ‘[a]bout one in three Australian women experience physical violence and almost one in five women experience sexual violence over their lifetime’;[11] and stated that while violence ‘knows no geographical, socio-economic, age, ability, cultural or religious boundaries’,[12] the experience of violence is not evenly spread.

1.9 For example, Indigenous women reported higher levels of physical violence during their lifetime than did non-Indigenous women, and the violence was more likely to include sexual violence.[13] Other groups may also experience violence in a different and/or disproportionate way, for example: women with disability;[14] women who identify themselves as lesbian, bisexual, transgender or intersex;[15] and immigrant women.[16] Such experiences were also strongly echoed in submissions made to this Inquiry.[17]

1.10 The National Council responded to this diversity of experience of violence not by taking a ‘one size fits all approach’, but rather by focusing

on helping women in different circumstances and from different backgrounds to live free from violence and the threat of violence. It uses an intersectional analysis to enhance our understanding of the way lifestyle factors affect women. This is because the ways in which women and their children experience violence, the options open to them in dealing with violence, and their access to services that meet their needs in all their diversity, are shaped by the intersection of gender with factors such as disability, English language fluency, ethnicity, geographical location and migration experience.[18]

Compounding factors

1.11 The National Council also pointed to a range of compounding factors in the presentation of violence, especially alcohol,[19] and that of geographical and social isolation.[20] Moreover, both have been identified as critical issues for Indigenous women and children:

Some groups of women within rural and remote communities experience particularly high rates of domestic violence. For example, the proportion of Aboriginal and Torres Strait Islander Australians who reported being victims of physical or threatened violence has been found to be similar in remote and non-remote areas. However, the proportion of Aboriginal and Torres Strait Islander people in remote areas who said that they, their family or friends had witnessed violence is three times as high as for Aboriginal and Torres Strait Islander people in non-remote areas. In remote and very remote areas, more than three-quarters of homicide victims in 2005–06 were Aboriginal or Torres Strait Islander.[21]

1.12 During this Inquiry the Commissions have heard such matters referred to repeatedly. For example, during one consultation in Alice Springs, Russell Goldflam, a solicitor with the Northern Territory Legal Aid Commission remarked that ‘everything is grog here’.[22]

1.13 Social isolation in an urban setting also affects immigrant and refugee women in particular:

For many immigrant and refugee women, insufficient knowledge of English creates a specific disadvantage in comparison to men in their families. English is often used as a tool of power and control, engendering the total dependence of refugee women on their husbands.[23]

1.14 In addition, the experience of violence in childhood also has a profound and compounding effect on the incidence of violence in adults:

Witnessing or experiencing violence as a child increases sharply the risk of becoming a perpetrator or victim of violence in later life. Women who experience abuse as a child are one-and-a-half times more likely to experience violence, and twice as likely to experience sexual violence as an adult than those who have not. Women who are physically and sexually abused in childhood also have an increased risk of being sexually abused in adulthood.[24]

1.15 Not only are there compounding factors causing family violence, there are also compounding consequences, such as: financial difficulty flowing from economic dependence on a violent partner;[25] homelessness, where women are seeking to escape violence at home;[26] and health issues associated with treating the effects of violence on the victim.[27] As noted by the Department of Premier and Cabinet Tasmania, ‘the causes of violence are various, and can manifest differently, but can “drag in” every aspect of the people’s lives’.[28]

Cost of family violence

1.16 In producing Time for Action, an estimate of the cost of family violence in Australia was updated. A 2004 study by Access Economics had estimated the total annual cost of violence against women by their partners as $8.1 billion.[29] This study was repeated by KPMG in January 2009 for the National Council with a forward projection of costs to 2021–22. The study 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’.[30]

[1] National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 (2009).

[2] The Terms of Reference for this Inquiry are set out at the front of this Report.

[3] New South Wales Law Reform Commission, Family Violence Inquiry: Terms of Reference (2009) <www.lawlink.nsw.gov.au/lawlink/lrc/ll_lrc.nsf/pages/LRC_cref125> at 19 January 2010.

[4] National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 (2009), 11.

[5] Ibid, 16–20. The six ‘outcome areas’ listed are that: communities are safe and free from violence; relationships are respectful; services meet the needs of women and their children; responses are just; perpetrators stop their violence; and systems work together effectively. The plan identified 25 outcomes with 117 strategies.

[6] Ibid, iv.

[7] Ibid, 119: Strategies for Action 4.2.1 and 4.1.2 are the background for the first and second limbs of the Terms of Reference, respectively.

[8] National Council to Reduce Violence against Women and their Children, Background Paper to Time for Action: The National Council’s Plan to Reduce Violence against Women and their Children, 2009–2021 (2009).

[9] Australian Government Solicitor, Domestic Violence Laws in Australia (2009).

[10] KPMG, The Cost of Violence against Women and their Children (2009), prepared for the National Council to Reduce Violence Against Women and their Children.

[11] National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 (2009), 9.

[12] National Council to Reduce Violence against Women and their Children, Background Paper to Time for Action: The National Council’s Plan to Reduce Violence against Women and their Children, 2009–2021 (2009), 16.

[13] Ibid, 17.

[14] Ibid, 18.

[15] Ibid.

[16] Ibid.

[17] For example, in relation to Indigenous women: Women’s Legal Service Brisbane, Submission FV 223, 2 July 2010; North Australian Aboriginal Justice Agency, Submission FV 194, 25 June 2010; Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010; Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Shoalcoast Community Legal Centre, Submission FV 141, 24 June 2010. In relation to women with disability: Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Women With Disabilities Australia, Submission FV 143, 24 June 2010; Disability Services Commission (WA), Submission FV 138, 23 June 2010; J Fletcher, Submission FV 01, 27 July 2009. In relation to immigrant women: Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Women’s Legal Service Brisbane, Submission FV 223, 2 July 2010; Women’s House Shelta, Submission FV 139, 23 June 2010; Migrant Women’s Emergency Support Service trading as Immigrant Women’s Support Service, Submission FV 61, 1 June 2010; Confidential, Submission FV 48, 22 May 2010; P Easteal, Submission FV 39, 14 May 2010; National Peak Body for Safety and Protection of Parents and Children, Submission FV 18, 13 January 2010; Confidential, Submission FV 15, 11 November 2009. In relation to lesbian, bisexual, transgender or intersex women: ACON, Submission FV 119, 15 June 2010; Centacare Safer Families Support Service, Submission FV 118, 15 June 2010; Same Sex Domestic Violence Interagency, Submission FV 116, 10 June 2010; Inner City Legal Centre—Safe Relationships Project, Submission FV 17, 13 January 2010.

[18] National Council to Reduce Violence against Women and their Children, Background Paper to Time for Action: The National Council’s Plan to Reduce Violence against Women and their Children, 2009–2021 (2009), 19.

[19] Ibid, 29. See also: Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009), [4.2].

[20] National Council to Reduce Violence against Women and their Children, Background Paper to Time for Action: The National Council’s Plan to Reduce Violence against Women and their Children, 2009–2021 (2009), 30–35.

[21] Ibid, 32.

[22] Central Australian Aboriginal Legal Aid Service and Northern Territory Legal Aid Commission, Consultation, Alice Springs, 2010.

[23] National Council to Reduce Violence against Women and their Children, Background Paper to Time for Action: The National Council’s Plan to Reduce Violence against Women and their Children, 2009–2021 (2009), 33. The Family Law Council also drew attention to the vulnerability of women and children in some communities, contributing factors include, for example, ‘cultural or religious practices that subordinate women and cultural expectations that loyalty to family and community take precedence over personal safety’: Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009), [4.4]. Submissions to this Inquiry reinforced such concerns: Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Women’s Legal Service Brisbane, Submission FV 223, 2 July 2010; Women’s House Shelta, Submission FV 139, 23 June 2010; Migrant Women’s Emergency Support Service trading as Immigrant Women’s Support Service, Submission FV 61, 1 June 2010; Confidential, Submission FV 48, 22 May 2010; P Easteal, Submission FV 39, 14 May 2010; National Peak Body for Safety and Protection of Parents and Children, Submission FV 18, 13 January 2010; Confidential, Submission FV 15, 11 November 2009.

[24] National Council to Reduce Violence against Women and their Children, Background Paper to Time for Action: The National Council’s Plan to Reduce Violence against Women and their Children, 2009–2021 (2009), 25.

[25] Ibid, 44.

[26] Ibid, 45

[27] Ibid, 42.

[28] Department of Premier and Cabinet Tasmania, Submission FV 236, 20 July 2010.

[29] National Council to Reduce Violence against Women and their Children, Background Paper to Time for Action: The National Council’s Plan to Reduce Violence against Women and their Children, 2009–2021 (2009), 42.

[30] Ibid, 43; KPMG, The Cost of Violence against Women and their Children (2009), prepared for the National Council to Reduce Violence Against Women and their Children.