Background to the Inquiry

1.4 This Inquiry follows the one concluded by the ALRC in conjunction with the New South Wales Law Reform Commission (the Commissions) in October 2010, and the resulting report, Family Violence—A National Legal Response (2010) (ALRC Report 114). In discussing the limits of the Terms of Reference in that inquiry, the Commissions identified that family violence was also relevant—or potentially relevant—to other legislative schemes in the Commonwealth field and suggested that the Australian Government should initiate a further inquiry in regard to such areas.^[2] The Terms of Reference in this Inquiry reflect this suggestion.^[3]

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

Time for Action

1.6 The report of the National Council, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 (Time for Action), released on 29 April 2009, drew attention to the extent of the problem of family violence in Australia. Research undertaken for the National Council reported that an estimated 750,000 Australian women ‘will experience and report violence in 2021–22, costing the Australian economy an estimated $15.6 billion’.^[5]

1.7 Time for Action estimated that ‘[a]bout one in three Australian women experience physical violence and almost one in five women experience sexual violence over their lifetime’;^[6] and stated that while violence ‘knows no geographical, socio-economic, age, ability, cultural or religious boundaries’,^[7] the experience of violence is not evenly spread.

1.8 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.^[8] Other groups may also experience violence in a different and/or disproportionate way, for example: women with disability; women who identify themselves as lesbian, bisexual, trans or intersex; and immigrant women.^[9] Such experiences were also strongly echoed in submissions to the ALRC and noted in Family Violence—A National Legal Response.^[10]

1.9 Time for Action also pointed to a range of compounding factors in the presentation of violence, especially alcohol, and that of geographical and social isolation—and both were identified as critical issues for Indigenous women and children.^[11] Similar concerns were reported in Family Violence—A National Legal Response.^[12]

1.10 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; homelessness, where women are seeking to escape violence at home; and health issues associated with treating the effects of violence on the victim.^[13] As commented by the Department of Premier and Cabinet Tasmania and quoted in Family Violence—A National Legal Response, ‘the causes of violence are various, and can manifest differently, but can “drag in” every aspect of the people’s lives’.^[14]

Immediate Government Actions

1.11 In response to Time for Action,the Australian Government announced a package of immediate actions,^[15] including investments in a new national domestic violence and sexual assault telephone and online crisis service; in primary prevention activities towards building respectful relationships; and to support research on perpetrator treatment.

1.12 The Government also committed to working with the states and territories through the Standing Committee of Attorneys-General (SCAG) to: establish a national scheme for the registration of domestic and family violence orders; improve the uptake of relevant coronial recommendations; and identify the most effective methods to investigate and prosecute sexual assault cases.

1.13 Further immediate actions included: the development of a multi-disciplinary training package for lawyers, judicial officers, counsellors and other professionals working in the family law system, to improve consistency in the handling of family violence cases; the establishment of the Violence Against Women Advisory Group to advise on the National Plan to Reduce Violence against Women; and asking the ALRC to work with state and territory law reform commissions to examine the inter-relationship of federal and state and territory laws that relate to the safety of women and their children. In the list of ‘priority actions’ the Australian Government agreed to the inquiry that led to the report, Family Violence—A National Legal Response.

The National Plan

1.14 Time for Action identified six core areas for improvement together with strategies and actions to achieve them.^[16] The first ‘three-year Action Plan’ of the National Plan to Reduce Violence against Women and their Children (the National Plan) was released in February 2011,^[17] providing the ‘framework for action’ by all Australian governments to reduce violence against women and children.^[18] The six ‘national outcomes’ are:

• National Outcome 1—Communities are safe and free from violence;

• National Outcome 2—Relationships are respectful;

• National Outcome 3—Indigenous communities are strengthened;

• National Outcome 4—Services meet the needs of women and their children experiencing violence;

• National Outcome 5—Justice responses are effective; and

• National Outcome 6—Perpetrators stop their violence and are held to account.

1.15 National Outcome 5 included as one of its three strategies that ‘justice systems work better together and with other systems’. ‘Immediate national initiatives’ pursuant to this strategy included that the Commonwealth, states and territories should ‘consider the recommendations’ in Family Violence—A National Legal Response; and that the current Inquiry be established.^[19]

1.16 A number of the broader outcomes and strategies in the National Plan are of key relevance in this Inquiry. They are considered in the summary of the framing principles and themes discussed in Chapter 2.

Family Violence—A National Legal Response

1.17 Family Violence—A National Legal Response contained 187 recommendations for reform. The overarching, or predominant principle reflected in the recommendations was that of seamlessness, and to achieve this, both a systems perspective and a participant perspective must be connected, to the greatest extent possible, within the constitutional and practical constraints of a federal system. This seamlessness was expressed in recommendations focused on improving legal frameworks and improving practice.

1.18 The Commissions considered that the improvement of legal frameworks as a result of the implementation of the recommendations 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.

1.19 Similarly, 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.

1.20 The Report identified a number of particular issues that are of continuing relevance in this Inquiry and which are discussed throughout this Discussion Paper. One continuing theme is the under-reporting of family violence and the range of concerns that may impede disclosure. For example, Part G concerned sexual assault, and in Chapter 24 the range of reasons for not reporting sexual violence were noted as including because: the victim may not have identified the act as sexual violence, let alone a criminal offence; victims may not consider the incident serious enough to warrant reporting; they are ashamed, fearful of the perpetrator, do not think that they will be believed, fear how they will be treated by the criminal justice system, and many consider that they can handle it themselves. Non-disclosure may also be a ‘survival strategy’.^[20] While the discussion in Part G was focused on under-reporting in the context of sexual violence in the criminal justice system, it was noted that the problem of under-reporting is exacerbated in the family violence context and therefore that responses needed to focus on measures to promote reporting.^[21]

1.21 Associated with under-reporting were factors that hinder disclosure or act as barriers to reporting, such as those faced by victims from CALD backgrounds, including communication and language difficulties, and cultural barriers such as beliefs about traditional gender roles and the importance of the family.^[22] Similarly the Commissions heard about the particular barriers to disclosure of family violence for Indigenous women and women with disability.^[23]