Conceptual framework

Overarching objective

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’.^[2] The overarching objective of this Inquiry therefore reflects the Government’s objective—through proposals for reform of legal frameworks to protect the safety of those experiencing family/domestic 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.

Inquiry themes

The following section provides a brief snapshot of some of the key themes and policy tensions that have emerged so far, leaving a fuller consideration to the chapters on each particular legislative area including an analysis of the rationale or purposes of the relevant Commonwealth laws under review. The objectives of such laws are commonly signalled either expressly in objects clauses or, for example, in Explanatory Memorandums, which can provide the basis for the assessment of the application of the Inquiry themes in each case.

In Family Violence—A National Legal Response, four specific principles were singled out as those that should be expressed by relevant legal frameworks in that inquiry: seamlessness, accessibility, fairness and effectiveness. These have also been evident as distinct themes in this Inquiry, to which have been added the themes of: self-agency/autonomy, privacy and system integrity.

Principles from Family Violence—A National Legal Response

Seamlessness

In Family Violence—A National Legal Response, ‘seamlessness’ was identified as a foundational policy principle driving the recommendations for reform contained in the Report.

Seamlessness—to ensure that the legal framework is as seamless as possible from the point of view of those who engage with it.^[3]

Seamlessness was expressed as a goal of ensuring that, from the point of view of those engaging with the legal frameworks in which issues of family violence and child abuse arise, the key focus must be upon the experience of those participants—to see the system through their eyes. In the context of the Terms of Reference for that inquiry, which required the Commissions to look at a wide range of laws and their interactions across the Commonwealth and state and territory spheres, the idea of seamlessness was a particularly potent one.

In the context of the current Inquiry, seamlessness remains an important theme, particularly in relation to matters such as the consistency of definitions across the various Commonwealth laws under review. Consistency then informs training and awareness in service delivery areas; and facilitates better coordination of responses to family violence, through appropriate information sharing and the improvement of pathways between agencies.^[4] For example, as remarked by the Commonwealth Ombudsman, in the context of child support:

Having a single consistently applied definition would potentially minimise the need for a person to retell their story and obtain different types of evidence for agencies they will commonly need to approach when experiencing or fleeing family violence, such as Centrelink and the [Child Support Agency]. Hopefully, it would lead to alignment of polices across relevant agencies, and reduce the likelihood of an anomalous situation where the same set of factual circumstances leads to recognition of violence by one agency, but not another.^[5]

Fairness

In Family Violence—A National Legal Response, fairness was a key framing principle:

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.^[6]

Time for Action identified as one key ‘outcome’ area, that ‘responses are just’.^[7] Fairness also reflects human rights principles—in particular, Australia’s obligations under international instruments considered in Chapter 2.

In this Inquiry, fairness can be expressed in a number of distinct aims: to ensure that:

• concerns about safety are properly heard, understood and responded to;

• issues of family violence or safety concerns do not give rise to inappropriate advantages or disadvantages in the context of the particular legislative regimes under consideration—what may be called ‘system perversities’;^[8]

• safety concerns are not exacerbated by the applicable system requirements in relevant contexts;^[9] and

• procedural fairness is accorded where issues of allegations of family violence by someone are relevant, as distinct from an individual’s expression of fears for safety.^[10]

Fairness is also considered in relation to one of the additional themes in this Inquiry—system integrity, considered below.

A further aspect of fairness may be expressed as a need to ensure that Australia’s resources are fairly distributed, including, for example, a fair distribution of social security benefits, and eligibility for citizenship via immigration. 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. As remarked by the Australian Chamber of Commerce and Industry:

All too often policy makers do not sufficiently take into account these issues when they make wide sweeping recommendations which would either create new obligations, increase red-tape on a business and/or introduce new costs (most times, achieving a triple whammy). This is despite other arms of government extolling their policy objectives in reducing the administrative burden on business.^[11]

Accessibility

Given that the driving focus of this Inquiry is on improving safety responses for those experiencing family violence, a key aim is clearly to ensure that appropriate recognition is given of the experience and the connection of sufferers to appropriate services.

In Family Violence—A National Legal Response, accessibility was identified as one of the framing principles for reform: ‘to facilitate access to legal and other responses to family violence’.^[12] Using ‘accessibility’ as a principle in this way built upon the report of the Access to Justice Taskforce of the Australian Government Attorney-General’s Department, which included accessibility as a key principle: ‘Justice initiatives should reduce the net complexity of the justice system’.^[13]

Systems that are complicated, in which definitions are inconsistent, where concerns of form over substance impede a response to safety concerns, and where there are complex pathways to obtain answers, work against the principle of accessibility. This theme has been expressed strongly in this Inquiry—particularly in the context of immigration law.^[14]

An aim of accessibility that complements the other principles is the avoidance of victims having to retell the circumstances of the violence, thereby ‘re-traumatising’ victims of family violence. This was a persistent theme in the earlier family violence inquiry and repeated in this Inquiry.^[15] The consequential under-reporting of family violence and fears for safety for this and other reasons were also identified.^[16]

Effectiveness

The principle of ‘effectiveness’—to facilitate effective interventions and support in circumstances of family violence—also builds on the Access to Justice Taskforce’s work, referred to in Family Violence—A National Legal Response.^[17] Similarly, the National Plan stressed that ‘[a]ll systems need to work together to make a major difference to the prevalence and impact of violence against women’.^[18]This theme is also reflected in the idea of ‘seamlessness’, above.

With respect to improving legal frameworks to protect safety, a key issue is to ensure that concerns about safety are properly heard, understood and responded to^[19]—also an aspect of fairness as expressed above.

A particular challenge in the context of family violence is the issue of disclosure of safety concerns, as the ability to provide effective responses may depend on if, how and when such disclosures are made. A continuing theme is that many people do not wish to disclose concerns about safety in the context of family violence. Difficulties in disclosing family violence were remarked upon in submissions to this Inquiry.^[20] The limited extent to which information about safety concerns was sought, or information provided, in some situations, was also noted.^[21]

Additional themes in this Inquiry

Self-agency/autonomy

In the course of this Inquiry, one theme that has emerged can be described as one of ‘self-agency’ or ‘autonomy’, concerning an individual’s right to make decisions about matters affecting him or her. Respect for autonomy is ‘the idea that every rational person should be able to decide matters for him or herself’.^[22] An example in the context of this Inquiry may be called the ‘right to choose’ to disclose safety concerns,^[23] or not, and the consequences that might flow from such choice, within each particular legislative regime under consideration.

The role of agency is a significant theme in broader jurisprudential analysis and is often seen in debates in the health law context, particularly in relation to questions of competency and principles of informed consent.^[24] As Professor Terry Carney has pointed out,

an influential school of jurisprudence conceives the legitimate role (and limits) of law to be that of protecting people against unwarranted interference with their freedom of choice/action and in providing the resources (or the ‘level playing field’) to enable people to enjoy and obtain personal fulfilment from the exercise of those rights.^[25]

Autonomy can be juxtaposed against ‘paternalism’, which ‘provides a justification for interference with a person’s own conception of their interests in order to secure their welfare’.^[26]

Autonomy is the aspect of persons that undue paternalism offends against. Paternalistic interventions can be both interpersonal (informal) and legal. Such interventions are identified not by the kind of acts they involve but by the justification given for them, so that paternalism involves interference with a person’s actions or knowledge against that person’s will for the purpose of advancing that person’s good. Respect for autonomy is meant to prohibit such interventions because they involve a judgment that the person is not able to decide for herself how best to pursue her own good. Autonomy is the ability to so decide, so paternalism involves a lack of respect for autonomy.^[27]

There is a clear tension in some areas about wanting to ensure that safety concerns are identified through appropriate screening and to respond accordingly, and an individual’s wish for certain matters to remain ‘private’ and the consequences therefore within their own control or self-agency.

One particular legislative area that illustrates a response that is driven by policy concerns as to the safety of children, but operates with a constrained place for an idea of individual agency, is that of the compulsory income management regime discussed in Chapter 13, overriding autonomy by a concern to protect vulnerable people. Such areas reveal a tension between ideas of individual freedom, and self-agency, and what may be described as protective paternalism. For example, the Australian Domestic and Family Violence Clearinghouse considers compulsory income management:

to be a disempowering approach to people who have already been significantly disempowered by the abuse (e.g. having no involvement with household finances, having to give over their money to abusive partners, experiencing emotional and psychological abuse). It is effectively blaming victims of violence for their financial situation rather than acknowledging that their hardship is more likely to be a product of the abuse.^[28]

Another area where the issue of agency is of particular concern is in relation to child support and family assistance, considered in Chapters 9–11, where law reform proposals are discussed that contribute to self-agency, by empowering and enabling victims of family violence to make informed choices about participation in the child support scheme, and to contribute to decisions that affect their safety.

Privacy

A theme related to autonomy is privacy, that sensitive information concerning fears for safety is obtained and handled in an appropriate way. For example, the Office of the Australian Information Commissioner recognised

the sensitivity of personal information related to family violence matters and the potential for an individual to be stigmatised, embarrassed or discriminated against as a result of the disclosure or inappropriate sharing of this information. The challenge is to ensure that initiatives contain appropriate privacy safeguards regarding the handling of an individual’s personal information, while providing strong protection against harm from family violence.^[29]

The theme of privacy is particularly relevant in terms of the linking of service responses, an aspect of accessibility. What information is obtained and how it is used is also relevant in terms of concerns about allegations of violence, an aspect of fairness, as noted above. The extent to which privacy is accorded when a person chooses to disclose safety concerns may affect the decision to disclose.^[30]

System integrity

A number of the legislative regimes under consideration provide pathways to particular results of a broadly ‘beneficial’ kind. For example, to immigration, social security entitlements, the receipt of child support, family assistance and fair workplace conditions. Issues of family violence may be a relevant factor that leads to a modification of the particular pathway or to a different mode of calculation of benefit. A main issue in such contexts is the kind and standard of verification required where an issue of family violence is raised.

The ALRC has identified a policy tension between ensuring that appropriate acknowledgment is given to the safety concerns of a person who is experiencing family violence and what may be broadly described as ‘system integrity’ issues, where appropriate checks and balances are included so as not to ‘incentivise’ the raising of family violence simply to achieve a benefit of some kind—or ‘playing the family violence card’ as it has been crudely described. Another kind of system integrity issue is to ensure that a person who causes another to fear for their safety in a family context is not advantaged in some way by that action.