International setting

2.4 Under its constituting legislation, the ALRC is directed to have regard to ‘all of Australia’s international obligations that are relevant to the matter’.^[3] A number of international conventions are relevant to the legal framework in relation to violence in the family. In particular, these reflect the acknowledgment that violence against women and children is a violation of human rights.

2.5 Such international instruments do not become part of Australian law until incorporated into domestic law by statute.^[4] However, as Professors Bryan Horrigan and Brian Fitzgerald commented, ‘[i]nternational and transnational sources of law increasingly affect the development of Australian constitutional, statutory, and case law, and also governmental policy-making’.^[5] Where not expressly incorporated into domestic law,

international law can be influential (or indirectly included) by forming a part of the context through which the exercise of judicial and governmental power is scrutinised.^[6]

2.6 For example, as noted by the High Court in Minister for Immigration and Ethnic Affairs v Teoh, a convention can assist with the interpretation of domestic law:

The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law.^[7]

2.7 The particular instruments of relevance to this Inquiry, summarised below in chronological order of introduction, are the:

• Universal Declaration of Human Rights;

• International Covenant on Civil and Political Rights;

• Convention on the Elimination of Discrimination Against Women;

• Declaration on the Elimination of Violence against Women;

• Convention on the Rights of the Child; and

• Declaration on the Rights of Indigenous Peoples.

Universal Declaration of Human Rights

2.8 The Universal Declaration of Human Rights (UDHR) was adopted in the wake of the Second World War and proclaimed by the General Assembly of the United Nations on 10 December 1948. It was the first international expression of rights to which all human beings are entitled.^[8] Comprising 30 articles, it is the basis of a number of later instruments which embody and expand upon its provisions. The ones of particular relevance to this Inquiry include: art 10 (the right to a fair and public hearing); art 12 (protection of privacy, family and home); and art 16 (concerning marriage and the family). In addition to these particular rights, which are considered below as incorporated in later instruments, of particular note is art 22, which provides that:

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

International Covenant on Civil and Political Rights

2.9 The International Covenant on Civil and Political Rights (ICCPR), described as ‘one of the most important human rights conventions of the United Nations era’,^[9] was adopted by the United Nations General Assembly on 16 December 1966 and ratified by the Australian Government in 1980. In making any proposals or recommendations for reform, the ALRC is directed to ensure that they are consistent, ‘as far as practicable’, with the ICCPR.^[10]

2.10 A number of articles of the ICCPR are of particular relevance in the context of a consideration of family violence and possible improvements to legal frameworks to protect the safety of those who experience it. Article 23 provides that ‘[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State’.^[11] It also stipulates that, with respect to marriage, ‘no marriage shall be entered into without the free and full consent of the intending spouses’^[12] and that signatory countries will take appropriate steps ‘to ensure equality of rights and responsibility of spouses as to marriage, during marriage and at its dissolution’.^[13]

2.11 Article 17 includes protection for the family that includes a specific recognition of privacy within such protection, in stipulating that:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.^[14]

2.12 With respect to children, there are two particular articles of note. Article 23 refers to the position of children after the dissolution of marriage, stating that provision shall be made for their ‘necessary protection’.^[15] Article 24 focuses particularly on children in their own right:

Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

2.13 In 1990 a convention concerning children’s rights was adopted by the United Nations, the Convention on the Rights of the Child,^[16] which is considered specifically below.

2.14 Other key rights of a more general nature in the ICCPR are the right to a ‘fair and public hearing’ in art 14, with minimum procedural guarantees in the case of criminal charges;^[17] and the affirmation in art 26 that ‘all persons are equal before the law and are entitled without any discrimination to the equal protection of the law’.

2.15 There are also provisions that concern discrimination. First, art 2 provides a positive assertion of the responsibility of signatories to ensure equal treatment:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2.16 Secondly, art 26 provides a specific proscription of discrimination:

the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2.17 In the context of family violence, there are evident tensions in the way that these articles—and the expectations they engender—might operate. A person accused of violence that may be a criminal offence, for example, is entitled to a fair hearing (art 14); the family itself, as a fundamental unit of society, is entitled to protection (art 23); and the child is entitled to the expectation of protection by his or her family and the state (art 24). When, for example, a child is the subject of abuse by a family member, each of these articles, and their inherent expectations, may be in apparent conflict. Similarly, where a woman or man is the subject of family violence, the protection of the family requires the family to be open to some public scrutiny—notwithstanding the right to privacy and the protection of the home (art 17).

Convention on the Elimination of Discrimination Against Women

2.18 While discrimination against all persons is proscribed under art 26 of the ICCPR, this provision is supplemented by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),^[18] which came into force for Australia on 27 August 1983.^[19] CEDAW defines discrimination as any distinction, exclusion or restriction that prevents the equal exercise or enjoyment by women of human rights and fundamental freedoms ‘in the political, economic, social, cultural, civil or any other field’.^[20] In doing so, it ‘moves beyond the concept of discrimination used in other human rights treaties’^[21] to define the concept of discrimination ‘more broadly than earlier international treaties on women’.^[22] Elizabeth Evatt, a member of the UN Committee on the Elimination of Discrimination from 1984 to 1992, described CEDAW as ‘an international bill of rights for women’^[23] and as representing ‘a commitment by the international community to equality in the enjoyment of human rights’.^[24]

2.19 In an inquiry in the 1990s as part of the Australian Government’s ‘New National Agenda for Women’, the ALRC noted in particular that, as a party to CEDAW, Australia has undertaken to pursue ‘by all appropriate means and without delay a policy of eliminating discrimination against women’.^[25] While observing that, as a party to the ICCPR, ‘Australia must guarantee the equal protection of human rights to men and women without discrimination and equality before the law’,^[26] the ALRC concluded that a significant aspect of gender inequality—and therefore of discrimination in contravention of CEDAW—was ‘women’s experience and fear of violence’.^[27]

2.20 The two ALRC reports produced from this inquiry^[28] raised general public and government awareness of the issues and ‘act[ed] as a mouthpiece for the views of women across Australia’.^[29] The ALRC also highlighted the impact that violence has on women’s access to the legal system:

Violence directly impedes women in enforcing their legal rights through its destructive impact on their personal confidence and because they may fear retaliation.^[30]

2.21 Although CEDAW does not expressly mention violence as a form of discrimination, parties are asked to report on the protection of women against the incidence of all kinds of violence, ‘including sexual violence, abuses in the family, sexual harassment at the work place, etc’.^[31] So, for example, where art 16 calls for the elimination of discrimination in marriage and the family, family violence ‘is clearly a form of discrimination which denies women equality’.^[32]

Declaration on the Elimination of Violence against Women

2.22 At the time that the ALRC was conducting its work on the Equality Before the Law inquiry, the Declaration on the Elimination of Violence against Women was adopted by the General Assembly of the United Nations on 20 December 1993, to complement and strengthen CEDAW. The commencing articles of the declaration define violence against women in the following terms:

Article 1

For the purposes of this Declaration, the term ‘violence against women’ means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.

Article 2

Violence against women shall be understood to encompass, but not be limited to, the following:

(a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation;

(b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution;

(c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.

2.23 In 1999, the General Assembly designated 25 November as the International Day for the Elimination of Violence against Women.

Convention on the Rights of the Child

2.24 The United Nations Convention on the Rights of the Child (CROC)^[33] has been described as ‘the most comprehensive statement of children’s rights ever drawn up at the international level’,^[34] and as providing ‘a universally accepted rights-based framework for addressing the treatment of children’.^[35] Following ratification by Australia on 17 December 1990, CROC proved of significance in ‘shaping the first wave of reforms to Pt VII of the Family Law Act 1975 (Cth) effected under the Family Law Reform Act 1995 (Cth)’.^[36]

2.25 CROC sets out the full range of human rights—civil, cultural, economic, political and social rights—pertaining to children under 18 years of age.^[37] CROC spells out that children everywhere have the right to:

• survival;^[38]

• develop to the fullest;^[39]

• protection from harmful influences, abuse and exploitation;^[40] and

• participate fully in family, cultural and social life.^[41]

2.26 The four core principles of the Convention are non-discrimination; devotion to the best interests of the child; the right to life, survival and development; and respect for the views of the child. In a joint 1997 report, the ALRC and the Human Rights and Equal Opportunity Commission stated that:

CROC recognises that children, as members of the human family, have certain inalienable, fundamental human rights. It emphatically endorses the proposition that the family is the fundamental environment for the growth and well-being of children and states that, for the well-being of society, the family should be afforded protection and assistance so as to fully assume its responsibilities. At the same time, it recognises that children need special safeguards and care where the family does not or cannot assume these roles.^[42]

2.27 A number of the provisions of CROC were particularly relevant to Family Violence—A National Legal Response and continue to be an important part of the international setting for this Inquiry. First, ‘the best interests of the child’ is a central principle, as set out in art 2:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.^[43]

2.28 Secondly, the maintenance of contact between a child and his or her parents is affirmed, subject to the ‘best interests’ principle, in art 12:

States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.^[44]

2.29 Of particular note is the rider in the above provision—that separation of a child from a parent may be in the child’s best interests where the child is subject to abuse or neglect by a parent. However, notwithstanding this qualification, it is also stated that:

States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.^[45]

2.30 The risk of violence and abuse to a child is given specific attention in art 19, which requires States Parties to

take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.^[46]

2.31 CROC includes articles concerning protection from sexual exploitation and sexual abuse;^[47] and promoting physical and psychological recovery from, amongst other things, any form of neglect, exploitation or abuse.^[48] The child’s right to be heard in proceedings involving him or her is also addressed:

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.^[49]

2.32 The right to express his or her own views may be satisfied by being given an opportunity to be heard in any judicial or administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of applicable national law.^[50]

2.33 In B and B: Family Law Reform Act 1995, the Full Court of the Family Court expressed the view that CROC

must be given special significance because it is an almost universally accepted human rights instrument and thus has much greater significance for the purposes of domestic law than does an ordinary bilateral or multilateral treaty not directed at such ends.^[51]

2.34 The relationship between CROC and the Family Law Act has been considered by the High Court in the context of the mandatory detention of children in immigration detention centres when proceedings for the release of two boys were brought under pt VII of the Family Law Act.^[52] The High Court held that the welfare power was constrained by the constitutional head of power under which it was enacted and, accordingly, that the Family Court had no jurisdiction either to order the release of the children from detention or to make general orders concerning the welfare of detained children.

Declaration on the Rights of Indigenous Peoples

2.35 The Declaration on the Rights of Indigenous Peoples was adopted by the United Nations General Assembly on 13 September 2007.^[53] It has been described as ‘the greatest development on indigenous rights’ in the decade up to 2009.^[54] Australia, Canada, New Zealand and the United States, originally voted against the Declaration, but on 3 April 2009 the Australian Government reversed this position. At the time, the Minister for Families, Housing, Community Services and Indigenous Affairs, the Hon Jenny Macklin MP, remarked that the Declaration was supported ‘in the spirit of re-setting the relationship between Indigenous and non-Indigenous Australians and building trust’.^[55]

2.36 The Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Gooda, drew attention to the significance of the Declaration:

As an international instrument, the Declaration provides a blueprint for Indigenous peoples and governments around the world, based on the principles of self-determination and participation, to respect the rights and roles of Indigenous peoples within society. It is the instrument that contains the minimum standards for the survival, dignity and well-being of Indigenous peoples all over the world.^[56]

2.37 The Declaration contains 46 articles. As affirmed in art 43, the rights recognised in the Declaration ‘constitute the minimum standards for the survival, dignity and
well-being of the indigenous peoples of the world’. The emphasis is ‘collectivist or peoples oriented’, in contrast to that, for example, of the UDHR and the ICCPR, which emphasise ‘human dignity and the worth of every individual person’.^[57]

2.38 A number of articles, however, combine both approaches. As Emeritus Professor Theo van Boven commented:

In many ways, the Declaration … brings together peoples’ rights and individual rights in a spectrum of mutual relationship and reach. A good illustration of this is Article 7, which, echoing Article 3 UDHR, provides that ‘indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person’, while at the same time making it clear, in language similar to the UN Declaration on the Right of Peoples to Peace (1984), that ‘indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples’.^[58]

2.39 Of particular relevance in this Inquiry are the articles that focus on the rights of Indigenous peoples as individuals. Article 1 provides that:

Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law.

2.40 Article 2 then affirms the right of Indigenous peoples and individuals to be free from any kind of discrimination, in particular that based on their Indigenous origin or identity.

2.41 Article 22 focuses upon particular forms of discrimination and protection from violence:

1. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities in the implementation of this Declaration.

2. States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.

2.42 The Community Guide to the UN Declaration on the Rights of Indigenous Peoples, produced by the Australian Human Rights Commission in 2010, explains in relation to art 22 that:

Violence against our women and children is an issue of concern to Aboriginal and Torres Strait Islander communities.

Governments have obligations to take actions to prevent and protect our women and children from violence and discrimination.

Laws and policies developed to protect women and children should not at the same time discriminate against Aboriginal and Torres Strait Islander peoples. That is why governments must work with us in meeting these obligations.^[59]

2.43 The rights affirmed in the Declaration provide an additional lens through which to consider a range of the issues in this Inquiry. While many of the articles focus on community and cultural issues that are unique to Indigenous communities, the affirmation of rights of individuals within those communities is an additional layer of commitment to the rights spelled out in the other international instruments considered above. The Declaration provides a contemporary framework for Governments and agencies to ensure ‘the ongoing development of universally relevant standards’ in policy and law to address ‘constructive arrangements’ for the promotion and protection of fundamental human rights.^[60]