Information sharing

20.145 The ALRC is directed by the Terms of Reference to consider whether information sharing across Commonwealth, state and territory agencies is appropriate to protect the safety of those experiencing family violence.^[129]

20.146 In Family Violence—A National Legal Response, the Commissions recommended that a national register, which would include certain information about protection orders and family law orders and injunctions should be established.^[130] In the Migration Issues Paper, the ALRC asked whether the MRT and DIAC should have access to the proposed register.^[131] The ALRC heard in consultation that the MRT has, on occasion, had difficulty in ascertaining from courts whether family violence protection orders are in place when considering judicially determined claims of family violence.^[132] This may arise in instances, for example, where an applicant seeks to make a judicially-determined claim of family violence, but is unable to obtain a copy of the family violence protection order.

20.147 The ALRC also asked what other reforms, if any, are needed to improve information sharing between courts and decision makers in migration matters involving family violence.^[133]

Submissions and consultations

20.148 A number of stakeholders supported the MRT having access to the proposed National Register.^[134] The MRT submitted that:

The majority of matters that come before the MRT involving family violence issues are founded on non-judicially determined claims of family violence. Nevertheless, in the Tribunals’ opinion, access to a national register of the type contemplated in ALRC Report 114 would assist in ensuring that the MRT has before it all the current information relevant to judicially determined claims of family violence. The Tribunals recognises that such a register may contain highly sensitive material and that safeguards may be necessary to ensure appropriate access to data.^[135]

20.149 National Legal Aid provided ‘in principle’ support, but suggested that access to the register should be limited to ‘MRT and DIAC specialist staff who have received appropriate training’ and emphasised that merely because a person’s name is not on the register, does not mean that the person has not used family violence.^[136]

20.150 The Office of the Information Privacy Commissioner submitted that:

Access to the register should be restricted to a ‘need to know’ basis … and should only be granted where there is clear public interest in doing so. Access beyond that which is reasonably necessary for the protection of family violence victims may increase the privacy risks associated with the register and make it harder to protect personal information from misuse, loss and unauthorised access. In turn, this may ultimately compromise the safety of those experiencing family violence.^[137]

20.151 The IARC submitted that, given the extensive procedural fairness obligations under the Migration Act, that:

Before a national register is available to the authorised agencies seeking this personal information, it would seem prudent to amend the Migration Act and Regulations requiring full disclosure by the sponsors in relation to family violence matters as well as allowing the decision makers to seek consent from the sponsor to obtain this personal information.^[138]

20.152 In relation to what measures could be taken to improve access to information between courts and decision makers, few submissions answered this question. However, the MRT submitted that:

Information sharing between courts and migration decision makers should be encouraged to ensure that decision makers are able to quickly access information relevant to matters involving claims of family violence. In the Tribunal’s view, legislative reforms may not be necessary, and information sharing may be achieved through the implementation of practical measures such as centralised liaison points.^[139]

ALRC’s views

20.153 In making recommendations for the establishment of a national register in the report, Family Violence—A National Legal Response, the Commissions were concerned to ensure that ‘various systems are aware of orders and proceedings relating to the same family’ to ensure consistency in decision making across the different jurisdictions.^[140] The Commissions therefore recommended that the national register be available to federal, state and territory police, federal family courts, state and territory courts that hear matters related to family violence and child protection, and child protection agencies.^[141]

20.154 While the ALRC considers that it may be useful for DIAC and the MRT to have access to a national register of protection orders, there are a number of reasons why the ALRC considers that access to the register should—at this point in time—be restricted to courts.

20.155 First, as stakeholders have argued, a number of other issues would have to be determined, for example, in relation who in DIAC or the MRT should have access to the register, and under what circumstances. The ALRC considers that significant resources would be required to ensure that the privacy of the alleged perpetrator is protected, and that the register is not open to misuse or unauthorised access.

20.156 Secondly, in cases before DIAC and the MRT, the onus is on the applicant, who must make his or her case to the decision maker, such that the existence or otherwise of a family violence protection order, or interim order, would only be an issue where the applicant purports to make a judicially determined claim of family violence. The ALRC considers that it would only be in rare instances where an applicant makes a judicially determined claim, but for whatever reason, cannot present a copy of a family violence protection order. In such circumstances, the ALRC considers that it is open to the visa applicant to obtain a copy of the family violence protection order from a court.

20.157 If a national register is implemented along the lines suggested, this would help applicants who have moved jurisdictions to be able to obtain a copy of the family violence protection order. Having weighed the above concerns, the ALRC therefore considers that better information dissemination to visa applicants about how to obtain a copy of a family violence protection order from a court may be a more measured approach to ensuring that applicants are able to make a judicially-determined claim of family violence.^[142]

20.158 For these reasons, the ALRC makes no proposals in relation to DIAC and the MRT having access to the proposed national register.