Scope of the Inquiry

Terms of Reference

1.22 Under the Terms of Reference, the ALRC is required to consider ‘what, if any, improvements could be made to relevant legal frameworks to protect the safety of those experiencing family/domestic violence’. The range of legal frameworks focuses on particular Commonwealth laws: child support and family assistance law, immigration law, employment law, social security law and superannuation law and privacy provisions in relation to those experiencing family violence.

1.23 In undertaking this reference, the ALRC was asked to consider legislative arrangements across the Commonwealth that have an impact on those experiencing family violence and sexual assault and whether those arrangements impose barriers to effectively supporting those adversely affected by these types of violence; and whether the extent of sharing of information across the Commonwealth and with State and Territory agencies is appropriate to protect the safety of those experiencing family violence.

1.24 In undertaking this Inquiry, the ALRC was directed to be careful not to duplicate:

(a) the work undertaken in Family Violence—A National Legal Response;

(b) the other actions being progressed as part of the National Plan and the Immediate Government Actions announced by former Prime Minister, the Hon Kevin Rudd MP, on receiving the National Council’s report in April 2009; and

(c) the work being undertaken through SCAG on the harmonisation of uniform evidence laws, in particular the development of vulnerable witness protections and recently endorsed principles for the protection of communications between victims of sexual assault and their counsellors.

1.25 The ‘lens’ established in the Terms of Reference is one of safety. The reform principles and themes, discussed in Chapter 2, and all proposals for reform, are considered in the light of it.

Matters outside the Inquiry

1.26 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.

1.27 The ALRC acknowledges, as it did in Family Violence—A National Legal Response, that the Inquiry concerns only a narrow slice of the vast range of issues raised by the prevalence of family violence—when victims of such violence encounter the legal system in its various manifestations. As noted in that Report, a comment made by the Family Law Council in its advice to the Australian Government Attorney-General in 2009, 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’.^[24]

1.28 In Family Violence—A National Legal Response, the ALRC noted widespread concern about the link between alcohol and family violence, and recognised 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 for that inquiry and the current one.

1.29 The limits of law, both in terms of services but also in terms of its application, was expressed succinctly in a remark by Penny Taylor, a solicitor with the Top End Women’s Legal Service, that ‘you can have the perfect law, but …’;^[25] 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.^[26]

1.30 The ALRC notes that the National Plan identifies 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.^[27]

1.31 As noted above, the lens for this Inquiry is safety. So, while the ALRC has heard concerns about matters that can be described as ‘systemic’ concerns, to address them would require solutions beyond those that can be described as improvements to protect the safety of those experiencing family violence. For example, concerns about the calculation of child support payments may be described as relating to a systemic issue. If proposals were to go to the child support system as a whole, while prompted by family violence issues, this may be seen to go beyond the brief as defined by the Terms of Reference. In such cases, where concerns of a systemic kind have been expressed to the ALRC, they are noted in the relevant context, although no proposals are developed in response. A treatment of this kind at least provides a public forum through which to note concerns in the context of a more specific inquiry, as constrained by the Terms of Reference.

1.32 The ALRC also focuses on the specific areas of Commonwealth law listed in the Terms of Reference, including: child support and family assistance law, immigration law, employment law, social security law and superannuation law and privacy provisions in relation to those experiencing family violence. Although the list was an ‘inclusive’ one, not exclusive, the ALRC is not considering family violence issues in the Family Law Act 1975 (Cth), on the basis that:

• the earlier report, Family Violence—A National Legal Response, gave extensive consideration to a range of Family Law Act matters within the Terms of Reference for that inquiry;

• the Terms of Reference for this Inquiry direct the ALRC not to duplicate, amongst other things, the work undertaken in that report;

• the ALRC recommended that the Australian Government should initiate an inquiry into how family violence should be dealt with in property proceedings under the Family Law Act and suggested that the Family Law Council might be the appropriate body to deal with the issue, following their 2001 Letter of Advice on violence and property proceedings;^[28] and

• given the scope of such a potential additional matter, the ALRC considers that it is beyond what may be captured by an inclusive definition, and would require to be listed expressly in the Terms of Reference.