Scope of the Inquiry

Terms of Reference

1.50 The Terms of Reference are reproduced at the beginning of this Report. There are two terms of reference, the first focusing on ‘interaction in practice’ of various laws, the second on ‘inconsistency’ in interpretation and application of sexual assault laws.

First Term of Reference

1.51 The Commissions have interpreted this as requiring a consideration of the interaction of:

• state and territory family violence laws with the Family Law Act;

• state and territory child protection laws with the Family Law Act;

• state and territory family violence laws with relevant Commonwealth, state and territory criminal laws;

• state and territory child protection laws with relevant Commonwealth, state and territory criminal laws.

1.52 There are further areas of interaction that the Commissions consider lie within the first Term of Reference, in particular, the interaction of state and territory family violence laws and child protection laws.

Second Term of Reference

1.53 The second Term of Reference requires the Commissions to focus on two key facets of sexual assault legal responses: (1) inconsistency in the interpretation or application of laws; and (2) a specific focus on sexual assaults perpetrated by a person with whom the complainant is in a domestic or family relationship.

1.54 Inconsistency of laws:Inconsistency in the application and interpretation of sexual assault laws can be considered on multiple levels:

• inconsistency of approach between jurisdictions (for example, there are different: offences, definitions of consent, ways in which sexual experience evidence is restricted, judicial directions to the jury, and so on);

• inconsistency between the legal response to victims of sexual assault perpetrated in a family violence context compared to victims of sexual assault perpetrated in other contexts (for example, by a stranger or an acquaintance);

• inconsistency between the legal response to victims of sexual assault perpetrated in a family violence context where those victims come from different backgrounds and have different needs (for example, are Indigenous victims of sexual assault treated in a different way by the legal system compared to other victims of sexual assault within this category?); and

• inconsistency more generally—whether individual cases of sexual assault, regardless of who has perpetrated the sexual assault, are likely to encounter a different response or different result depending upon the police, prosecutors or judicial officers with whom they come in contact.

1.55 In this Inquiry the Commissions are adopting a broad approach to considering the issue of inconsistency.

1.56 While the primary focus of the Inquiry with respect to the second Term of Reference will be on the interpretation and application of laws in the criminal justice system, it is important that this is not seen as the only legal response to sexual assault. Sexual assault occurring in a family violence context may give rise to multiple legal issues (often concurrently)—for example, issues invovling family law, civil protection orders, child protection, crimes or victims’ compensation, as well as personal injury law.^[73] This multiplicity of legal responses and avenues also directly relates to the first Term of Reference, which is concerned with the interaction between the areas of law that respond to family violence.

1.57 In terms of the response of the criminal justice system, the use of the term ‘laws’ is also to be understood broadly to include not only the laws prescribing certain offences and the common law, but also rules of evidence and criminal procedure. It also necessarily includes the policies, procedures, training and education that apply to the key legal players who implement and interpret those ‘laws’—police, prosecutors and judicial officers. This wider interpretation of law is also important in meeting the continuing criticism about the gap between the law as written and its practice.

1.58 Family violence context: The Commissions have been asked to focus on a particular category of sexual assault—sexual assault committed in a family violence context. This reflects the fact that most sexual assaults are perpetrated by someone known to the victim.

1.59 The Personal Violence Survey conducted by the Australian Bureau of Statistics (ABS) in 2005 found that of those women who had been sexually assaulted in the 12 months prior to the survey, 22% had been assaulted by a stranger in the most recent incident, 21% by a former partner,^[74] 39% by a family member or friend, and 32% by another known person.^[75] Thus in 60% of cases, women were sexually assaulted by a former partner, family member or friend.^[76] A 2004 ABS report on sexual assault noted that ‘all available data sources indicate that over half of perpetrators … are known to their victims’.^[77]

1.60 The focus on sexual assault in a family violence context provides an important opportunity to focus on the category of sexual assault that comprises the majority of sexual assaults experienced by women and children. It also provides an opportunity to focus more intently not only on the largest category of sexual assaults, but the one that is more likely to remain unreported; and when it is reported is more likely to fall out of the legal system and less likely to result in conviction (a process known as ‘attrition’).^[78] In this way, intimate and familial sexual assaults remain the most hidden in general—and from the view of the legal system in particular—despite forming the largest category of sexual assaults.

1.61 The Commissions recognise that there are continuing issues with sexual assault laws and procedures for all victims of sexual assault, not only those who are the focus of this Inquiry. In this regard the Commissions anticipate that any recommendations that are made to assist victims of sexual assault in a family context would have benefits for all victims of sexual assault engaging with the legal system.^[79]

The intersecting nature of the Terms of Reference

1.62 There are areas of intersection between the two Terms of Reference, as sexual assault can also constitute family violence. However, given the particular emphasis in Time for Action on sexual assault and the specific strategy of giving the ALRC terms of reference in relation to it, a separate term of reference was warranted.

1.63 At the intersection of all the areas under consideration, however, sits the issue of sexual assault of children, potentially bringing together all the areas of law under consideration in this Inquiry—child protection, criminal law, the Family Law Act, and family violence laws.

Matters outside the Inquiry

1.64 While the scope of the problem of family violence is extensive, the brief in this Inquiry is necessarily constrained both by the Terms of Reference and by the role and function of a law reform commission. Under the Terms of Reference, the Commissions are required to consider ‘what, if any, improvements could be made to relevant legal frameworks to protect the safety of women and their children’. The range of legal frameworks is also not ‘at large’, but limited, in the first Term of Reference, to specified areas of interaction; and, in the second, to the impact of inconsistent interpretation and application of law in relation to sexual assault.

1.65 The Commissions recognise that the Inquiry concerns only a narrow slice of the vast range of issues raised by the prevalence of family violence—when women and children encounter the legal system in its various manifestations. A comment made by the Family Law Council in its advice to the Commonwealth Attorney-General, referred to above, is equally apt as a comment with respect to the problems of family violence in a much wider sense. The Council, noting that it was only focusing on family violence ‘when it becomes visible in the Family Law system in Australia’, stated that: ‘this visible pattern is only the tip of the iceberg of family violence, alcoholism, drug addiction and mental illness which is apparently entrenched in Australia’.^[80]

1.66 In this Inquiry, the Commissions noted widespread concern about the link between alcohol and family violence, and recognise that any serious attempt to develop preventative measures in the area of family violence must tackle the problem of alcohol abuse in Australian society. This issue is, however, beyond the scope of the Terms of Reference and was not pursued in this Inquiry.

1.67 The limits of law, both in terms of services but also in terms of its application, was a theme articulated during the Inquiry. For example, Penny Taylor, a solicitor with the Top End Women’s Legal Service, commented that ‘you can have the perfect law, but …’;^[81] and the Commissioner for Victims’ Rights, South Australia, stated that:

Law alone is not a satisfactory response to family violence. The law must be augmented by consistent, comprehensive and co-operative agencies, organisations and individuals. Existing law and range of approaches to family violence serve as a baseline from which people concerned about that violence and its effects can reach out to establish better laws and approaches reflecting victims’ needs and respecting their fundamental rights.^[82]

1.68 The Commissions are also acutely aware that there is a limited range of legal responses to the persistent and endemic problem of family violence. The Commissions note that Time for Action identified many other strategies in areas beyond legal frameworks to achieve outcomes such as relationships that are respectful, and services that meet the needs of women and children.^[83]

1.69 Family violence is also relevant—or potentially relevant—to other legislative schemes in the Commonwealth arena, including, for example, those regulating workplace relations, immigration, social security and child support. Given the importance of this issue the Commissions considered that the Australian Government should initiate an inquiry into how family violence is treated in this and other federal legislative schemes not falling within the Terms of Reference.^[84] A number of stakeholders supported the need for a consideration of such areas.^[85] On 9 July 2010 the Attorney-General of Australia, the Hon Robert McClelland MP, issued new Terms of Reference reflecting the suggestion made in the Consultation Paper.

The gendered nature of the Terms of Reference

1.70 In Time for Action the National Council acknowledged that while women as well as men can commit—as well as be victims of—family violence or sexual assault, the research shows that ‘the overwhelming majority of violence and abuse is perpetrated by men against women’,^[86] and that ‘[t]he biggest risk factor for becoming a victim of sexual assault and/or domestic and family violence is being a woman’.^[87] Such findings lie behind the National Council’s strategies that, in turn, led to the Terms of Reference for this Inquiry being focused on the reduction of violence against ‘women and their children’.

Criticism

1.71 Although the Terms of Reference are directed to reforms relating to violence against women and their children, during the Inquiry the gendered nature of the Terms of Reference attracted considerable negative comment, both with respect to the focus on women as victims, and the attachment of the possessive pronoun ‘their’ to the children concerned.^[88]

1.72 A common theme from stakeholders critical of the gendered nature of the Terms of Reference, however, was that ‘Australia should be making a stand on violence no matter who is perpetrating [that violence]’^[89] and ‘of course women and children should be protected from violence and abuse BUT so should men and children!’^[90]

1.73 Specific criticism from individual men and men’s groups included: complaints of unfair treatment of men by the legal system dealing with family law cases and protection orders;^[91] and what was described as the ideology of ‘solely male blame’.^[92]

Focus of recommendations

1.74 Although the Terms of Reference are focused on women and children, the suite of recommendations presented in this Report are ones that are directed towards reforming legal frameworks with the aim of improving the safety of victims of family violence. The effect will be to the benefit of all victims, whether male or female. Given the statistical over-representation of women as victims of family violence, the measures recommended can be seen to be a ‘litmus test’ for how well the legal system is working overall in improving safety for those who suffer family violence. The Commissions acknowledge that family violence occurs against men and in the gay, lesbian, transgender and intersex communities and, as such, family violence in such contexts may be matters which deserve separate consideration by government at an appropriate time.