Education, training and information dissemination

20.129 In its report, Family Violence —A National Legal Response, the ALRC and the New South Wales Law Reform Commission (the Commissions) considered that education on the nature, features, and dynamics of family violence better enables those in the family law system to assist victims. The Commissions recommended that the Australian, state and territory governments, and educational, professional and service delivery bodies should ensure regular and consistent education and training for participants in the family law, family violence, and child protection systems, in relation to the nature, features and dynamics of family violence, including its impact on victims, in particular those from high risk or vulnerable groups.^[112]

20.130 In Equality Before the Law, the ALRC emphasised that ‘information about legal rights, financial matters, and domestic violence and community services in Australia must be provided to women who are immigrating both before departure and once in Australia’.^[113] The ALRC highlighted that the provision of information could be targeted to countries where concerns about serial sponsorship exists, and highlighted the Philippines as an example:

Since 1989 the Philippine government has required all persons intending to emigrate as spouses or prospective spouses to attend counselling at the Commission on Filipinos Overseas about such matters as cultural differences, their rights, and available support and welfare services in the country of destination. The Manila office of the Department of Immigration and Ethnic Affairs requires proof of the woman’s attendance at this counselling before processing her application for immigration to Australia.^[114]

Submissions and consultations

20.131 In the Migration Issues Paper, the ALRC sought views as to the provision of training to competent persons about the nature and dynamics of family violence.^[115]

20.132 A number of stakeholders reinforced the importance of education and training, not only in relation to the nature, features and dynamics of family violence, but also in relation to migration processes for visa decision makers, competent persons and independent experts, family violence and immigration service providers, as well as visa applicants and sponsors.^[116] In particular, stakeholders expressed concern about the lack of training and education for competent persons with respect to the nature, features and dynamics of family violence, and the family violence exception.^[117]

Visa decision makers

20.133 The IARC commented that ‘decision makers tend too readily to re-open prior spousal relationship issues in order to avoid considering complex evidence in support of a non-judicially determined claim of family violence’, citing visa applicants

who sought to rely on the family violence provisions (whether judicially determined or otherwise) for their permanent visa applications, and had their visas refused because the decision makers were of the view that an unhappy relationship was not a genuine spousal relationship.^[118]

20.134 This concern was echoed in the submission from the Law Institute of Victoria:

Where no relationship is found to have existed, there will be no consideration of the family violence exception. The LIV is extremely concerned by the approach of DIAC, the MRT and the courts, in cases where a genuine and continuing relationship is found never to have existed because evidence of family violence shows, for example, that there was ‘no mutuality of support or companionship at any stage of the relationship’.^[119]

Competent persons

20.135 The Australian Association of Social Workers Queensland Branch (AASW) expressed concerns about the lack of comprehensive and consistent training for competent persons in relation to the nature, features and dynamics of family violence:

Anecdotal evidence from the field strongly suggests that the concept of a ‘competent person’ is fraught, in that it implies the individual has specialised knowledge and training in the immigration law, DIAC requirements and domestic and family violence. Yet this is not always the case. Training and education is therefore critical in ensuring a comprehensive and robust assessment process, yet the AASW understands that the current training provided in regard to the nature and dynamics of family violence is insufficient and ad hoc. Comprehensive training in domestic and family violence needs to be established, provided by accredited trainers and standardised across Australia, and provided on an ongoing basis.^[120]

20.136 National Legal Aid stressed that, without appropriate understanding of the nature, features and dynamics of family violence, competent persons may have a narrow view of what constitutes family violence and how a victim should appear and act. In their view,

training should also address the value of seeking information from other service providers and/or significant others with whom the alleged victim first discloses family violence. In many cases, the people whom a victim first discloses the violence are not ‘competent persons’.^[121]

20.137 Visa Lawyers Australia were concerned that many competent persons have little understanding of the legislative requirements when making statutory declarations:

It is however evident from our dealings with competent witnesses that they are not familiar with the provisions in the Migration Regulations and require guidance when preparing their statutory declaration evidence to ensure that it satisfies the legislative requirements. This is of particular concern for unrepresented applicants who rely on non-judicially determined claims, as they will be relying on their own reading of the legislation and the ability of the competent witness to comply with the statutory requirements.^[122]

Independent experts

20.138 In relation to independent experts, IARC submitted that anecdotal evidence suggested that in some cases independent experts ‘might have been influenced by the nature (including the gender of the victim) of the family violence claims’.^[123] Similarly, National Legal Aid expressed concerns about cases in which ‘independent experts have formed an opinion based on the expert’s own notion of what constitutes family violence rather than by applying the definition of ‘relevant family violence’ set out in the Migration Regulations.^[124]

Information for prospective visa applicants

20.139 The ALRC also heard in consultations about the need to ensure that prospective visa applicants are provided with information in relation to their legal rights, the family violence provisions and family violence support services in Australia, especially at the pre–embarkation stage. This view was reiterated in a number of submissions.^[125] For example, the ANU College of Law submitted that:

There is a need for legal information to be made available to visa applicants, including what they can do to get protection and help in the event of experiencing family violence and information specifically about the existence of the family violence provisions. This information needs to be available in community languages.

Applicants for permanent residence are required to sign a statement that they have read (or have had read to them) information provided by the Australian Government on Australian society values. We suggest that the Australian values information kit would be an appropriate place to include this sort of fundamental information about legal rights.^[126]

20.140 The ADFVC submitted that once in Australia,

specialised workshops on women’s legal rights could be provided to newly arrived migrants and/or that information about family violence could be provided as part of the 510 hours of English classes offered.^[127]

20.141 The IARC was of the view that the sponsor and visa applicant should be required to ‘undertake a mandatory educational information session in relation to family violence and migration law’.^[128]

ALRC’s views

20.142 The ALRC reinforces the views expressed by the Commissions in the Family Violence—A National Legal Response that education and training on the nature and dynamics of family violence—in particular its impact on immigrant communities—for decision makers and service providers, will assist in protecting the safety of victims of family violence. If as the ALRC proposes, a definition of family violence is inserted into the Migration Act, which is consistent with that in the Family Law Act, and other state and territory family violence legislation, this will provide for a common understanding of family violence on which education, training and information dissemination can be based.

20.143 The ALRC shares the concerns raised in submissions in relation to inconsistent and incorrect application of the definition of family violence, and notes that this is underpinned by a lack of understanding as to the nature, features and dynamics of family violence. The ALRC considers that a proper understanding of the nature and dynamics of family violence will help decision makers to be more confident in assessing claims, improve consistency in decision making, and ultimately, increase the safety of victims of family violence.

20.144 The ALRC considers that education and training should be complemented by the provision of information about legal rights, the family violence exception, and family violence and migration services in Australia. Such information should be provided in a culturally appropriate and sensitive manner, and be provided both prior to, and upon arrival in Australia.