Overview of the Discussion Paper

Definitions and terminology

1.49 This section sets out some of the terminology that will be used in this Discussion Paper in referring to specific concepts in the family violence sphere.

Culturally and linguistically diverse

1.50 The phrase ‘culturally and linguistically diverse’—and the abbreviation ‘CALD’—are commonly used in referring to people of diverse backgrounds. The ALRC recognises that the discussion in this publication may apply to people who are ‘culturally or linguistically diverse’ as well as those who are ‘culturally and linguistically diverse’. The phrase is used for convenience to embrace both kinds of diversity.

Family

1.51 The definition of ‘family’ or ‘domestic’ relationship varies across the Australian jurisdictions and legislation. In this Discussion Paper the particular definitions of ‘family’ are considered in the context of the specific legislation under consideration.

Family violence

1.52 The terminology that should be adopted to describe violence within families and intimate relationships has been, and continues to be, the subject of controversy and debate.^[35] Invariably there will be difficulties in attaching any one label to describe a complex phenomenon varying in degrees of severity and reflecting the differing experiences of persons from diverse cultural, socio-economic, geographical groups, and those in same-sex relationships or in family structures that do not replicate the nuclear family structure.

1.53 As noted in Family Violence—A National Legal Response, state, territory and Commonwealth legislation that refers to violence within families and intimate relationships uses various descriptions—‘family violence’, ‘domestic violence’ and ‘domestic abuse’.^[36] The term ‘domestic’ has been criticised on the basis that it ‘qualifies and arguably reduces the term “violence”’.^[37] The Macquarie Dictionary notes the colloquial use of the term ‘domestic’ as ‘an argument with one’s spouse or another member of the household’. Thus, from a cultural perspective, the term ‘domestic’ can trivialise the impact of the violence on the victim. However the phrase ‘family violence’ has also been criticised:

The problem with the term ‘family violence’ is not even in its gendered neutrality, but the picture that it paints that violence in the family is something in which all members are complicit, and which is just to do with difficulties in relationships between family members and problems in handling conflict in non ‘violent’ ways. … The term is even less acceptable than the more commonly used ‘domestic violence’. ‘Domestic’ with all its implications of ‘just a domestic’, at least cannot be taken to qualify the violence by reference to the ungendered perpetrator, as ‘family’ can.^[38]

1.54 Reports and writing in this area have adopted varying terminology. Some have referred to both ‘family and domestic violence’, or vice versa;^[39] others to ‘family violence’;^[40] and some to ‘domestic violence’.^[41] Fehlberg and Behrens adopt the terminology of ‘violence and abuse in families’.^[42] In each case, the differing terminology—in the Australian context—attempts to refer to the same type of conduct, although the boundaries of such conduct have expanded over the years.

1.55 In this Inquiry the ALRC will refer to ‘family violence’, rather than ‘domestic violence’ or ‘domestic abuse’, unless specifically quoting from sources including legislation which use alternative terminology.

Indigenous peoples

1.56 In this Discussion Paper, the ALRC may use the terms ‘Aboriginal and Torres Strait Islander peoples’ or ‘Indigenous communities’ or ‘Indigenous peoples’, which are consistent with the terminology adopted by various organisations, including the Aboriginal and Torres Strait Islander Social Justice Commissioner in his reports:

Aborigines and Torres Strait Islanders are referred to as ‘peoples’. This recognises that Aborigines and Torres Strait Islanders have a collective, rather than purely individual, dimension to their livelihoods. … The use of the term ‘Indigenous’ has evolved through international law.^[43]

1.57 This is affirmed under international law principles and by the United Nations Declaration on the Rights of Indigenous Peoples.^[44]‘Indigenous women’ and ‘Indigenous children’ also reflect this terminology.

People with disability

1.58 A contemporary view of disability acknowledges a person has an impairment or medical condition but that it is disabling barriers within society—negative attitudes, inaccessible buildings and environments, inaccessible communications and information—that prevent people with disability from being treated equally and from fully participating in all aspects of community life.^[45]

1.59 The ALRC uses the term ‘people with disability’ throughout this Discussion Paper, to reflect each person’s value, individuality, dignity and capabilities. ‘People with disability’ is used rather than ‘people with a disability’, acknowledging that a person may have more than one disability.

LGBTI

1.60 At the outset the ALRC acknowledges the significance of terminology and that terminology is often contested. While the ALRC understands there are other possible abbreviations, the term ‘LGBTI’ is used in this Discussion Paper as it is a broadly understood abbreviation that describes people who identify as lesbian, gay, bisexual, trans or intersex.^[46]

1.61 The ALRC is aware that the LGBTI community is not a homogenous group, but rather consists of individuals with differing sexual orientation and gender identity. In particular, the ALRC understands that people who identify as trans and intersex often have perspectives, issues and needs that are different from those of the people who identify as gay, lesbian or bisexual, and as a result should be separately consulted.

Protection orders

1.62 Protection orders under family violence legislation are variously described as: apprehended violence orders, family violence intervention orders, violence restraining orders, family violence orders, domestic violence orders, and domestic violence restraining orders. For the purposes of this Discussion Paper the ALRC uses the generic term of ‘protection order’, unless specifically quoting from legislation or case law which uses the particular terminology adopted by a particular state or territory.

Structure of the Discussion Paper

1.63 This Discussion Paper comprises 22 chapters divided into seven parts.

1.64 Part A—Common Threads, contains four chapters that cover common ideas and themes relevant to the whole Discussion Paper.

1.65 This chapter provides an outline of the background to the Inquiry and an analysis of the scope of the Inquiry as defined by the Terms of Reference. It also describes the development of the evidence base to support the law reform response as reflected in the proposals and questions included throughout the Discussion Paper.

1.66 Chapter 2, ‘Conceptual Framework’ considers the backdrop of international instruments that affect the range of issues in focus in this Inquiry, followed by an analysis of the broad policy themes relevant to the objective, as set out in the Terms of Reference, of protecting the safety of those experience family violence.

1.67 Chapter 3, ‘Common Interpretative Framework’, focuses on the definition of family violence in the legislative areas identified in the Terms of Reference: employment, superannuation, migration, child support, family assistance and social security. As a key aspect of establishing a common interpretative framework, the ALRC proposes including in those laws the same core definition of family violence that describes the context in which behaviour takes place, as well as a shared common understanding of the types of conduct—both physical and non-physical—that may fall within the definition of family violence.

1.68 The ALRC considers that systemic benefits would flow from the adoption of a common interpretative framework across different legislative schemes, promoting seamlessness and effectiveness in proceedings involving family violence for both victims and decision makers.

1.69 Chapter 4, ‘Screening, Information Sharing and Privacy’, examines how family violence is disclosed to Commonwealth agencies—namely Centrelink, the Child Support Agency (CSA) and the Family Assistance Office (FAO)—and how that information is treated by those agencies. As these issues primarily concern service provision by agencies within the Human Services portfolio, this chapter also provides an overview of the structure of, and recent changes to the portfolio.

1.70 The chapter explores ways in which barriers can be minimised to encourage disclosure of family violence in a safe environment, and to ensure that upon disclosure, an appropriate case management and privacy response is triggered. This chapter focuses on screening and risk assessment processes, information sharing and privacy, and family violence policies, to ensure that victims of family violence are appropriately identified, and their needs are responded to accordingly.

1.71 The ALRC identifies a number of personal and institutional barriers to the disclosure of family violence and proposes a multifaceted approach of screening and risk assessment processes, information sharing and privacy, and family violence policies, to ensure that victims of family violence are appropriately identified, and their needs are responded to accordingly. In particular, the ALRC proposes that Centrelink, the CSA and the FAO should ‘screen’ all customers for family violence, not through direct questions, but by giving them a short statement and other information about family violence and its relevance to a person’s social security, child support and family assistance case.

1.72 However, the ALRC recognises that screening alone is not sufficient and considers that an appropriate case-management and privacy response should be triggered, including referral to a Centrelink social worker. To assist with this, and to ensure consistency across the relevant departments and agencies, the ALRC proposes that a ‘safety concern’ flag should be placed on a customer’s file where family violence and fears for safety have been disclosed. This flag should be subject to information-sharing protocols between relevant departments and agencies, subject to informed consent and privacy safeguards. Finally, to enhance consistency across the different departments and agencies, the ALRC proposes that a family violence and child protection policy be developed for each department or agency.

1.73 Part B—Social Security, contains four chapters, Chapters 5–8. Chapter 5, ‘Social Security—Overview and Overarching Issues’, together with Chapters 6–8, provides an overview of Commonwealth social security law and examines options for reform of the social security legislative framework to improve the safety of people who have experienced, or are experiencing, family violence.

1.74 Chapter 5 examines the social security frameworks relevant to this Inquiry—the legal framework and the agencies that administer it; the policy framework, including underlying principles; and the relevance of family violence in the social security system. The chapter proposes reforms in the key areas of interpretative frameworks around family violence, screening, and collecting information about family violence.

1.75 In order to enhance the common interpretative framework, the ALRC proposes that the definition of family violence, and its natures, features and dynamics, be included in the Guide to Social Security Law supported by training for relevant Centrelink staff. The ALRC also considers that, to ensure fairness in the administration of the social security system and to provide a level of self-agency, greater transparency and consistency is required in relation to the information a person can rely on to support a claim of family violence. The ALRC therefore makes proposals as to the types of information a person may use to support the claim and proposes that guidance as to the weight placed on each type of information should be included in the Guide to Social Security Law. The ALRC also makes proposals to ensure the safety of victims of family violence is protected when Centrelink is seeking information to support a claim of family violence and that this information is protected through Centrelink’s Deny Access Facility.

1.76 Chapter 6, ‘Social Security—Relationships’ considers how family violence may have implications in relation to how relationships are defined in the social security context—for example, whether a person is considered to be a ‘member of a couple’ or ‘independent’. The way in which a decision about a person’s relationship status is made in the social security context, and the relevance of family violence in making that decision, is considered. The ALRC considers that relationships are inherently difficult to define, but recognises that the effect of family violence is not always considered in relationship decisions in the social security context. The ALRC therefore makes a number of proposals to ensure that the impacts of family violence are expressly considered in relationship decisions in social security law through amendment to the Guide to Social Security Law.

1.77 Chapter 7, ‘Social Security—Proof of Identity, Residence and Activity Tests’ discusses the relevance of family violence to various qualification and payability requirements—such as proof of identity, residence, and activity and participation requirements attached to certain social security payments. This chapter considers how these qualification and payability requirements could be improved to protect the safety of victims of family violence while also maintaining the integrity of the social security system.

1.78 The ALRC makes proposals in relation to residence requirements—ensuring that where appropriate, certain subclasses of visas are able to access Special Benefit. The ALRC seeks guidance from stakeholders as to what other reforms may be necessary to residence requirements to maintain this balance. The ALRC also makes proposals to ensure that a person’s experience of family violence is adequately considered in the negotiation and revision of a person’s requirements for activity-tested social security payments; and the granting of exemptions from such requirements.

1.79 Chapter 8, ‘Social Security—Payment Types and Methods, and Overpayment’, considers mechanisms that are built into social security law and practice to assist victims of family violence, and others, including: special or supplementary payments; the way in which a person receives their regular social security payment, such as weekly or urgent payments; and nominee arrangements.

1.80 Chapter 8 discusses ways in which these payments and payment arrangements may be able to better protect the safety of victims of family violence. In particular, the ALRC considers a number of barriers for victims of family violence in accessing Crisis Payment, weekly and urgent payments and makes proposals to overcome these barriers. The ALRC also considers ways to ensure that family violence can be taken into consideration in decisions to waive the repayment of a social security debt—for example, where the debt was incurred due to economic abuse or duress.

1.81 Part C—Child Support and Family Assistance, contains four chapters, Chapters 9–12. Chapter 9, ‘Child Support—Frameworks, Assessment and Collection’, provides an overview of the child support frameworks relevant to this Inquiry: the legal framework and the agencies that administer it; and the policy framework—including the objectives that underpin the child support scheme. The chapter then outlines the relevance of family violence in the child support system, and proposes reforms to the key areas of interpretative frameworks around family violence, child support assessment, and the collection and enforcement of child support.

1.82 The reforms proposed in Chapter 9 would facilitate appropriate management of child support cases by the Child Support Agency, where a customer is at risk of family violence. The proposed reforms complement the proposals in Chapter 4, and relate primarily to screening and referrals at certain key points in a child support case. In particular, the ALRC proposes that the Child Support Agency should screen for family violence, and consult with customers who have disclosed family violence, prior to initiating significant action against the other party.

1.83 Chapter 10, ‘Child Support—Agreements, Personal Information, Informal Carers’ includes discussion of two alternatives to Child Support Agency assessments: child support agreements; and self-administration of child support. The chapter then addresses the treatment of personal information, including protection and exchange of information, and reporting threats of family violence. Finally, the chapter discusses the child support eligibility of carers who are neither parents nor legal guardians (‘informal carers’).

1.84 The proposed reforms in Chapter 10 are in two main sets. The first set focuses on information management by the Child Support Agency. It includes proposed processes for dealing with offensive material on Child Support Agency forms, and providing higher levels of protection for the personal information of victims of family violence. The second set of proposed reforms aims to remove barriers to child support faced by informal carers. The ALRC has proposed these reforms as children may be in informal care—often provided by grandparents—as a result of family violence.

1.85 Chapter 11, ‘Child Support and Family Assistance—Intersections and Alignments’ focuses on the points of intersection and alignment between child support and family assistance frameworks—in particular, Family Tax Benefit. The first point of intersection is the ‘reasonable maintenance action’ requirement in family assistance legislation. In accordance with this requirement, eligible parents must be in receipt of child support to receive more than the minimum rate of Family Tax Benefit. Family assistance policy recognises that this requirement may affect victims of family violence, and provides for exemptions from the requirement to take reasonable maintenance action. The second intersection point is an alignment in family assistance and child support legislation and policy in relation to determinations of percentages of care. This is a component of both child support and family assistance calculations, and affects the amount or distribution of entitlements.

1.86 Chapter 11 focuses on exemptions from the reasonable maintenance action requirement, as family violence exemptions are the key protective strategy for victims in both child support and family assistance contexts. A strong focus is the accessibility of exemptions for victims who require them. The proposed reforms seek to achieve this by providing information in the Family Assistance Guide—in particular, information about the availability of partial exemptions, the duration of exemptions, and the review process. The ALRC also proposes that exemption policy should be included in family assistance legislation. The chapter concludes with an examination of the legislative and policy bases of percentage determinations, and how the rules underpinning such determinations affect victims of family violence.

1.87 Chapter 12, ‘Family Assistance’, discusses the family assistance framework and the ways in which it addresses, and in some instances fails to address, family violence. This discussion focuses on the two primary family assistance payments—Family Tax Benefit and Child Care Benefit (CCB). This chapter proposes reforms specifically targeted at family assistance law and policy, where needed, particularly in relation to CCB. Family assistance legislation provides for increased CCB in certain circumstances. The proposed reforms seek to improve accessibility to increased CCB in cases of family violence. The ALRC proposes that this be achieved by amending the Family Assistance Guide to explicitly recognise family violence as exceptional circumstances that may qualify for increased CCB, and by amending family assistance legislation to lower the eligibility threshold for increased rates of CCB where children are at risk of abuse or neglect.

1.88 Part D—Income Management, comprises one chapter, Chapter 13. ‘Income Management’ is an arrangement under the Social Security (Administration) Act 1999 (Cth) by which a proportion of a person’s social security and family payments is quarantined to be spent only on particular goods and services, such as food, housing, clothing, education and health care. Chapter 13 discusses the relevance of family violence to income management measures and the treatment of family violence in the income management of welfare payments under the Social Security (Administration) Act. The chapter briefly explains the nature and the history of the income management regime and how income management may be improved to work to protect the safety of people experiencing family violence. By way of comparison, the income management model in the Family Responsibilities Commission Act 2008 (Qld) is discussed.

1.89 In particular, Chapter 13 examines the implications of family violence for how individuals may become subject to, or obtain exemptions from, the application of income management; and the consequences of income management for people experiencing family violence. The ALRC concludes that the complexity of family violence, and the intertwining of family violence in a number of the ‘vulnerability indicators’ that trigger the imposition of compulsory income management, leads to serious questions about whether it is an appropriate response. The ALRC proposes that there should be a flexible and voluntary form of income management offered to people experiencing family violence to ensure that the complex needs of the victims are provided for and their safety protected.

1.90 In Chapter 13 the ALRC also proposes a review of the voluntary income management measures and streams to provide welfare recipients experiencing family violence with a flexible opt-in and opt-out measure.

1.91 Part E—Employment, comprises five chapters, Chapters 14–18. Chapter 14, ‘Employment Law—Overarching Issues and a National Approach’, together with Chapters 15–17, examines possible options for reform to employment-related legislative, regulatory and administrative frameworks to improve the safety of people experiencing family violence. The chapter examines the relevance of family violence to the employment law system; issues associated with disclosure of family violence—including verification of family violence and privacy issues; the need for national initiatives which address family violence in the context of employment; and associated reforms to data collection.

1.92 The ALRC’s key proposal in Chapter 14 is that the Australian Government should initiate a national education and awareness campaign around family violence in the employment context. The ALRC also proposes that the Office of the Australian Information Commissioner should develop a model privacy policy and guidance material in relation to family violence-related personal information. With respect to data collection, the ALRC considers the possible roles Fair Work Australia should play in considering the effect of family violence on the employment of those experiencing family violence in relation to the National Employment Standards, enterprise agreements and individual flexibility arrangements.

1.93 Chapter 15, ‘The Pre-Employment Stage’, deals with ways in which the framework underpinning the pre-employment stage of the employment law spectrum, with a particular focus on employment services provided by contractors to the Australian Government, could be improved to protect the safety of victims of family violence. The chapter examines ways in which Job Services Australia (JSA)—the national employment services system—Disability Employment Services (DES) and Indigenous Employment Program (IEP) systems do, or could, respond to the needs of job seekers experiencing family violence.

1.94 In particular, the chapter addresses:

• JSA—including tender arrangements, information sharing processes and protocols and screening for family violence;

• JSA and DES provider responses to disclosure of family violence by job seekers;

• the Job Seeker Classification Instrument (JSCI)—conduct and content of JSCIs;

• Employment Services Assessment (ESAt) and Job Capacity Assessment (JCA)—referral to, and conduct of, ESAts and JCAs and the impact of family violence;

• education and training; and

• employment services for specific groups of job seekers, including Indigenous peoples, job seekers from culturally and linguistically diverse (CALD) backgrounds, job seekers with disability and those in rural and remote areas.

1.95 In particular, the ALRC proposes in Chapter 15 that those who wish to tender to become job service providers must demonstrate an understanding of family violence and its impact on job seekers. The ALRC also proposes that the JSCI should include a new category of information in relation to family violence. With the enhanced disclosure of family violence that might result, the ALRC also considers what information-sharing processes and protocols, as well as privacy safeguards, are appropriate. Other proposals in this chapter concern JSA and DES provider responses to the disclosure of family violence, the conduct of ESAts and JCAs, and education and training for a range of people involved in the pre-employment stage.

1.96 Chapters 16 and 17 focus on the Fair Work Act 2009 (Cth). Chapter 16, ‘Employment—The Fair Work Act 2009 (Cth)’ provides an overview of the Fair Work Act and examines possible options for reform to the Act, and the institutions created under the Act, to address the needs—and ultimately the safety—of employees experiencing family violence. The chapter examines the background, constitutional basis, coverage and objects of the Fair Work Act, as well as the role and processes of Fair Work Australia (FWA) and the Fair Work Ombudsman (FWO). The ALRC suggests ways in which those institutions or their processes do, or could, function to protect the safety of those experiencing family violence.

1.97 The key focus of Chapter 16 is on the National Employment Standards. The ALRC makes two key proposals—first, that family violence be included as a circumstance in which an employee should have a right to request flexible working arrangements and, secondly, that family violence-related leave be included as a minimum statutory entitlement under the National Employment Standards.

1.98 Chapter 17, ‘Employment—The Fair Work Act 2009 (Cth) Continued’, complements Chapter 16 and considers enterprise agreements—specifically the inclusion of family violence clauses and the role of individual flexibility arrangements; modern awards; unfair dismissal; and the general protections provisions under the Fair Work Act. The ALRC concludes that the Australian Government should encourage the inclusion of family violence clauses, that such clauses should include a range of minimum requirements and proposes that the Fair Work Ombudsman should develop a guide to negotiating such clauses in agreements. The ALRC also considers the appropriateness of individual flexibility arrangements (IFAs) in circumstances where an employee is experiencing family violence and proposes that the Fair Work Ombudsman should develop a guide to negotiating IFAs in such circumstances.

1.99 With respect to modern awards, the ALRC considers ways in which modern awards might incorporate family violence-related provisions and suggests this should be considered in the course of Fair Work Australia’s reviews in 2012 and 2014. In relation to unfair dismissal, the ALRC acknowledges the broad formulation of ‘harsh, unjust and unreasonable’ and suggests consideration of family violence in determining whether ‘exceptional circumstances exist’ for the purposes of granting an extension of time in which to make an application. Finally the ALRC considers the general protections provisions under the Fair Work Act and suggests that discrimination on family-violence related grounds under thoseprovisions could be considered in the context of the post-implementation review and by the Australian Human Rights Commission.

1.100 Chapter 18, ‘Occupational Health and Safety Law’, examines ways in which the Commonwealth occupational health and safety (OHS) system, in the context of moves to harmonise OHS law across Australia, might be improved to protect employees experiencing family violence. In particular it examines: legislative duties—specifically, duties of care and the duty to report notifiable incidents; the nature and role of regulatory guidance; the importance of education, training and measures to raise awareness about family violence as a work health and safety issue; and issues associated with data collection.

1.101 The central premise underlying Chapter 18 is that, where family violence becomes an OHS issue for employees, they should be given the highest level of protection reasonably practicable, and employers should introduce measures to address family violence in such circumstances. This reflects one of the principles underlying the Model Work Health and Safety Bill developed by Safe Work Australia.

1.102 The ALRC concludes that legislative or regulatory obligations may not be the most appropriate means by which to address family violence in the OHS context. The ALRC considers that significant amendments to the OHS system, due to come into effect on 1 January 2012, existing legislative and regulatory duties appear to be sufficiently broad to encompass family violence. Rather, it is lack of awareness or consideration of family violence as an OHS issue that should be the focus of reforms. Accordingly, the ALRC makes a range of proposals in Chapter 18 focused on: increasing awareness of family violence as a work health and safety issue; the incorporation of systems and policies into normal business practice to develop the capacity of employers and employees to effectively manage family violence as an OHS risk; and data collection mechanisms to establish an evidence base upon which to plan future policy directions in this area.

1.103 Part F—Superannuation, comprises one chapter, Chapter 19, which examines ways in which the Australian superannuation system does, or could, respond to protect the safety of people experiencing family violence. While the intersection between family violence and superannuation is not one that has received much attention in the past, other than to a limited extent within the family law arena, there are a range of areas of superannuation in which family violence has a particular impact on or consequence for the economic security and independence of victims of family violence.

1.104 The chapter consist of two main parts. The first part deals with circumstances in which a victim of family violence may have been coerced into taking action in respect of their superannuation. It considers superannuation agreements, spousal contributions and self-managed superannuation funds (SMSFs). The ALRC concludes that the treatment of superannuation should be considered in the context of an inquiry into how family violence should be dealt with in respect of property proceedings under the Family Law Act 1975 (Cth) and considers changes to the regulation of, and guidance material with respect to, SMSFs.

1.105 The second part of Chapter 19 examines circumstances in which a victim of family violence may wish to seek early access to superannuation benefits for the purposes of, for example, leaving a violent relationship. In considering early release on the basis of severe financial hardship, the ALRC proposes amendments to the eligibility requirements for making an application and to guidance material for decision makers in granting early release. The ALRC also considers whether compassionate grounds could be amended to account for family violence, or whether a new ground of early release on the basis of family violence should be introduced. The ALRC also outlines a range of other issues relevant to early release, including in relation to application forms, training, applicant safety measures, time limits and data collection and systems integrity measures

1.106 Part G—Migration, comprises three chapters, Chapters 20–22. Chapter 20, ‘Migration Law—Overarching Issues’, considers a number of broad issues surrounding the family violence exception contained in the Migration Regulations 1994 (Cth). The exception—which is invoked mainly in partner visa cases—provides for the grant of permanent residence to victims of family violence, notwithstanding the breakdown of the spousal or de facto relationship on which their migration status depends. A major focus of this chapter concerns whether the family violence exception should be expanded to apply to a broader range of onshore permanent and temporary visa categories, including the Prospective Marriage (Subclass 300) visa.

1.107 The ALRC considers that the family violence exception should be made available to all secondary visa applicants for onshore permanent visas. Similarly, the ALRC proposes in Chapter 20 that the family violence exception should be made available to holders of a Prospective Marriage (Subclass 300) visa who have experienced family violence, but who have not married their Australian sponsor. Beyond these cases, the ALRC acknowledges that those on other temporary visas may also experience family violence. However, in light of the need to ensure the integrity of the visa system the ALRC does not propose that the family violence exception be extended to apply to temporary visa holders.

1.108 The ALRC considers that the proposals in Chapter 20 need to be complemented by adequate education, training and information dissemination to all those within the system. Accordingly, the ALRC proposes that the Australian Government should ensure consistent and regular education and training in relation to the nature, features and dynamics of family violence, including its impact on victims, for visa decision makers, competent persons and independent experts, in the migration context. The ALRC also proposes that information about legal rights, family violence support services, and the family violence exception should be provided to visa applicants prior to and upon arrival in Australia, and that such information should be provided in a culturally appropriate and sensitive manner.

1.109 Chapter 21 ‘The Family Violence Exception—Evidentiary Requirements’, builds on Chapter 20 and focuses on the evidentiary requirements for making a family violence exception claim under the Migration Regulations 1994 (Cth). In order to meet the family violence exception, applicants must make a claim based on judicially or non-judicially determined evidence of family violence. The chapter begins by giving an overview of the evidentiary requirements in the Australian context, including its legislative history. This is followed by an examination of stakeholder concerns in relation to judicially and non-judicially determined claims of family violence. Chapter 21 then considers equivalent family violence provisions in other jurisdictions including: the United States, Canada, New Zealand and the United Kingdom, before examining a number of options for reform.

1.110 Chapter 22, ‘Refugee Law’, considers the position of asylum seekers who seek protection in Australia on the basis of having experienced family violence. The first part of the chapter includes an analysis of refugee case law in Australia in relation to family violence, and considers whether legislative changes to the Migration Act 1958 (Cth) are necessary to improve the safety of victims of family violence. The ALRC concludes that family violence claims can fall under the definition of a refugee contained in the United Nations Convention Relating to the Status of Refugees (the Refugee Convention), as incorporated into Australian law by the Migration Act. However, the ALRC considers that this is a complex area of the law which is prone to inconsistent decision-making. Assessments of family violence claims require a visa decision maker to have an in-depth understanding of the intersection between family violence and refugee law, and the relevant country information. Accordingly, in order to improve consistency in decision-making, the ALRC proposes that the Minister for Immigration and Citizenship should issue a direction under s 499 of the Migration Act to require visa decision makers to have regard to the Procedures Advice Manual 3 Gender Guidelines when making refugee status assessments.

1.111 The second part of Chapter 22 considers whether other amendments, such as those proposed in the Complementary Protection Bill 2011 (Cth) are necessary to protect victims of family violence whose claims may fall outside the Refugee Convention, but who may need international protection. The ALRC considers that the measures proposed by the Bill provide limited scope for protection of victims of family violence. For the Bill to provide meaningful protection to victims of family violence, substantial amendments would need to be made to the exclusions criteria, which would significantly alter the nature of complementary protection affecting all persons who may need complementary protection, beyond those who are victims of family violence.

How to make a submission

1.112 With the release of this Discussion Paper, the ALRC invites individuals and organisations to make submissions in response to the specific proposals and questions, or to any of the background material and analysis provided, to help advance the reform process in this Inquiry.

1.113 There is no specified format for submissions and they may be marked ‘confidential’ if preferred. The ALRC prefers electronic communications and submissions, and strongly encourages stakeholders to make use of the online submission form available on the ALRC website. However, the ALRC will gratefully accept anything from handwritten notes to detailed commentary and scholarly analyses on relevant laws and practices. Even simple dot-points are welcome. Submissions will be published on the ALRC website, unless they are marked confidential.^[47]

1.114 The ALRC appreciates that tight deadlines for making submissions places considerable pressure upon those who wish to participate in ALRC inquiries. Given the deadline for delivering the final report to the Attorney-General at the end of November 2011, and the need to consider fully the submissions received in response to this Discussion Paper, all submissions must be submitted on time—by Friday 30 September 2011.

1.115 It is the invaluable work of participants that enriches the whole consultative process of ALRC inquiries. The quality of the outcomes is assisted greatly by the understanding of contributors in needing to meet the deadline imposed by the reporting process itself. This Inquiry is no exception.