Options for reform

21.117 Stakeholders presented various options for reform of non-judicially determined claims of family violence. These fell into two categories. First, there were a number of interlinking proposals for reform that sought to introduce more accessibility, accountability, and flexibility to the system, while still retaining the competent person regime. The ALRC considers these below as a package of proposals, which would apply if the competent person regime is to be maintained.

21.118 On the other hand, the alternative proposal called for abolishing the competent person regime altogether, and establishing an independent expert panel to deal with all non-judicially determined claims.

21.119 These reform options, and the ALRC’s views, are discussed below.

Keeping the existing competent person regime

Expand the range of competent persons

21.120 In response to concerns that competent persons are not easily accessible to victims, some stakeholders proposed that the range of competent persons be expanded to include: bi lingual workers;^[160] counsellors and case managers in family violence services;^[161] ESL teachers;^[162] and lawyers.^[163] For example, Domestic Violence Victoria and others in a joint submission highlighted that:

Immigrant and refugee women are often assisted by bilingual workers from their community, who are often a first and trusted port of call in family violence situations. However, these workers, often from newly-emerging communities, may not fall under the definition of a competent person if they do not also have relevant qualification. The scope of competent person should be extended to include bilingual workers. These workers should be appropriately trained.^[164]

21.121 In contrast, IARC expressed a view that competent persons ‘should be amended to eliminate the confusion and to streamline the category of groups of people who are competent to decide whether family violence has occurred at the relevant time’.^[165] In its view, the definition of competent person requires clarification, as it ‘has caused problems for some applicants who do not have any apparent abuses of the system’.^[166] For example:

A qualified psychologist who witnessed the incident as the victim’s neighbour can provide a statutory declaration as a competent person but not so if that witness was a nurse.^[167]

Correcting for minor errors and omissions

21.122 In light of the concerns that the statutory declaration scheme was a ‘triumph of form over substance’,^[168] the ALRC asked whether the Migration Regulations should be amended to provide that minor errors and omissions are not fatal to the statutory evidence of a competent person.^[169]

21.123 Stakeholders did not expressly support an amendment to the Migration Regulations along such lines, but did stress the need for a more flexible approach to assessing the statutory evidence. For example, Visa Lawyers Australia suggested that:

If a competent witness has provided evidence and has failed in some respect to comply with the legislative requirements it is unclear why DIAC officers should not have the power to go back to the competent person and seek further evidence from them, especially if it is in relation to something which could be easily provided such as evidence of credentials.^[170]

21.124 This idea found support in a number of submissions.^[171] RAILS submitted that DIAC should, in certain circumstances, provide feedback to the competent person where the statutory declaration can be easily amended so that it meets the legal requirements:

For example, in cases where the wrong form was used; where witnessing of the statutory declaration was not properly completed; where the competent person’s qualification to be a competent person is not clearly stated; where their opinion is not clearly expressed in the appropriate terms. This would be less time-consuming, cut down on costly and time consuming litigation through the Courts, cause less distress for the victim and provide a form of training for the competent person.^[172]

21.125 National Legal Aid suggested that the Migration Regulations should be amended to allow for substantial compliance with Form 1040, and that departmental guidelines could

include a list, which should be expressed to be non-exhaustive, of examples which would constitute substantial compliance with the regulations such that minor error/omission should not be taken to be fatal.^[173]

21.126 In contrast, the MRT was concerned that, while such amendments may reduce the technicalities, there was potential for uncertainty as to what constitutes ‘a minor error or omission’:

The Tribunals are of the view that certainty in the legislative scheme is desirable to ensure consistent decision making … The Tribunals consider such amendments have the potential to create uncertainty as to what constitutes a ‘minor error or omission’, and whether the statutory declaration is valid for the purposes of the Regulations.

In this context, the Tribunals note that under the current legislative scheme, a visa applicant is able to ‘correct’ deficiencies in statutory evidence by submitting, any time up until the time of decision, a valid statutory declaration. Deficiencies in any statutory evidence are matters that would be raised by the Migration Review Tribunal during the course of the Tribunal hearing.^[174]

Improving accountability and transparency of independent expert assessments

21.127 The majority of submissions expressed a view that independent experts should be required to furnish their reasons to the applicant.^[175] Many argued that providing full reasons for assessments is vital in allowing the applicant to consider whether to challenge the assessment—via judicial review—on the basis that the independent expert had not applied the correct definition of relevant family violence.^[176]

21.128 It appears that reasons for the independent assessment are not routinely given to the applicant. For example, the IARC noted that independent experts customarily provide full reasoned decisions to DIAC decision makers and that:

DIAC will seek the applicant’s comments before their decision but they do not always provide the full reports to the applicants for comments other than the fact that a negative opinion has been made which is binding on the decision maker.^[177]

21.129 In contrast, the MRT understood that the applicant is provided with reasons for the decision as part of the ‘procedural fairness’ requirements under the Migration Act.^[178]

21.130 In relation to whether the MRT should be bound by an independent expert assessment obtained at the primary level, stakeholders who addressed this issue did not support such a requirement.^[179] The MRT submitted that doing so would remove an avenue for meaningful merits review:

Under the current legislative scheme, an applicant may provide further evidence to the Tribunal upon which it may be satisfied that relevant family violence has occurred, notwithstanding that there is an existing independent expert opinion. Requiring the Tribunal to be bound by an existing opinion obtained by the primary delegate would remove the capacity of an applicant to present further evidence and to access meaningful merits review.^[180]

21.131 Many stakeholders considered that decisions of independent experts should not automatically be binding on the decision maker, and should be subjected to review.^[181] Visa Lawyers Australia argued that:

Although there are obvious resource justifications for ending the process with the independent expert’s opinion, it is risky to rely on one opinion and give it ultimate determinative power, especially when the applicant is not provided with reasons for their decisions.^[182]

Repeal the competent person regime

21.132 An alternative that was floated in submissions and consultations was to repeal the competent person statutory declaration regime and replace it with an independent expert scheme, similar to the current health requirements administered by Medical Officers of the Commonwealth.

The health assessment regime

21.133 Under the current legislative scheme, all permanent visa applicants are required to meet health requirements.^[183] Applicants are asked to undergo a medical examination, an X-ray, and a HIV/AIDS test (if 15 years of age or older). The Minister must—subject to some exceptions—seek the opinion of a Medical Officer of the Commonwealth (MOC) as to whether the health requirement has been met.^[184] An MOC is a medical practitioner who has been appointed in writing by the Minister for the purposes of the Migration Regulations.^[185] Where the matter is referred to an MOC for his or her opinion, the Minister must take as correct an opinion for the purposes of deciding whether the person meets a requirement or satisfies a criterion.^[186] In some cases, the health requirement may be waived, but cannot be waived where the applicant is assessed as representing a risk to public health or safety in Australia.

21.134 Depending on the type of application lodged, the applicant may have review rights. In such circumstances, the applicant is able to submit further medical evidence for review by to a Review MOC (RMOC).^[187] The RMOC is able to:

• set aside and refuse the decision and substitute a new decision; or

• affirm the Department’s original decision; or

• refer the case back to the Department for further consideration.^[188]

21.135 Therefore, under the current framework, the role of the visa decision maker is limited to assessing whether or not the MOC or RMOC has applied the legislation correctly, and the visa decision maker takes no part in assessing the health of the applicant.

A panel of experts for family violence

21.136 Stakeholders saw substantial benefits in replacing the competent person regime with an independent expert panel scheme similar to that used for health assessments, including: greater accessibility for victims; quality and consistent decision-making by experts; improved transparency and accountability; and the opportunity for targeted training and education.^[189] For example, the Law Institute of Victoria submitted that an independent expert scheme:

Would remove DIAC officers (or MRT on appeal) from the decision-making process, recognising that they are not trained to make findings about family violence and therefore should not be making findings about whether or not it occurred. However, DIAC officers should be required to consider whether the expert’s opinion was properly formed in accordance with the definition of ‘relevant family violence’.

Repeal of the competent person provisions would provide an opportunity for quality control, to ensure that only reputable professionals in the area of family violence make assessments about whether family violence has occurred. An improved independent expert scheme must, however, be more transparent and accountable than under the current provisions. There should be full reasons given for an opinion about family violence to ensure that the opinion has a proper basis and is made in accordance with the legislative definition of family violence. Provisions should be made for review of an independent expert opinion or for the opportunity to seek a second opinion.^[190]

21.137 Visa Lawyers Australia considered that an independent panel could help to overcome difficulties of access to competent persons in regional areas. In their view, the panel of experts

could be trained in the legislative requirements, and could be accessed only by referral from DIAC, where an applicant does not have the access to two competent persons of their choosing. The panel of professionals could operate similarly to panel doctors used in medical examinations under the Migration Regulations. This would alleviate difficulties faced by applicants seeking access to competent persons in regional areas.^[191]

21.138 The IARC submitted that, if a panel scheme were to be instituted, those who do not have judicially determined evidence ‘must be promptly referred to an independent expert (from a panel of experts) for an assessment’ and that the system should allow for an ‘expert review mechanism, similar to that of a review system by the Commonwealth Medical Review Officer in relation to health assessments’.^[192]

ALRC’s views

21.139 The ALRC considers below two options and two sets of proposals for reform of non-judicially determined claims of family violence. In the ALRC’s preliminary view, the preferred option is to replace the competent person regime with an independent expert panel, similar to that currently in place for health assessments, to deal with all non-judicially determined claims of family violence.

21.140 In the alternative, if the competent person regime is to be maintained, the ALRC makes a number of proposals aimed at reducing the rigid and strict procedural requirements for making a non-judicially determined claim, as well as improving the transparency and accountability of the system.

21.141 These options and proposals are explored below.

Abolishing the competent person regime

21.142 In the ALRC’s preliminary view, there are a number of sound reasons why an independent expert panel scheme similar to that set up for health assessments should be pursued.

21.143 First, an independent expert panel scheme would be consistent with the policy taken in other areas of immigration—such as health or skills assessment—to ‘outsource’ the decision making to expert professionals in those areas, recognising that the visa decision maker is not adequately equipped to make such decisions.^[193] The ALRC considers that if the system envisages that visa decision makers are not adequately equipped to make assessments in relation to family violence, this should result in their complete, rather than partial, removal from assessment process in deference to an independent expert panel.

21.144 Secondly, an independent expert panel scheme would simplify the procedural requirements and increase accessibility to visa applicants who experience family violence. An expert panel would remove the strict procedural requirements and allow victims to present a wide range of evidence to the decision maker, including evidence from those persons to whom an immigrant victim may more readily disclose family violence. This mirrors the position taken in the UK and other overseas jurisdictions where in the absence of judicially determined evidence, applicants are encouraged to present as many pieces of evidence as possible to support their claim. It also has the benefit of streamlining the system, by reducing the number of times a person may have to re-tell their often traumatic experiences of family violence.

21.145 Thirdly, an independent expert panel scheme presents an opportunity for targeted training and education in relation to the nature, features and dynamics of family violence for those experts appointed to the panel.^[194] This would provide a measure of assurance to victims that their claims will be assessed by professionals with specialist understanding of family violence. The ALRC considers that this would arguably lead to more consistent decision making and, ultimately, improve the safety of victims of family violence.

21.146 Fourthly, the ALRC envisages that the expert panel scheme should provide that full reasons be given to the applicant, and that there be a mechanism for review. The Migration Regulations could—similar to health assessments—provide that a decision maker must take as correct an opinion of the independent panel assessor. However, in review applications, where there is new evidence or where significant time has elapsed, a review opinion could be sought.

21.147 Lastly, the ALRC considers that access to an independent panel scheme should be free for applicants seeking to access the family violence provisions, given that many victims lack financial resources. The ALRC acknowledges that the independent scheme would have financial implications. However, these may be offset in the long run if consistent decision making leads to lower rates of merits or judicial review. Further, quicker access to the family violence provisions for genuine victims will improve their safety and reduce dependence on social and other services that would otherwise be needed.

Keeping the existing competent person regime

21.148 The ALRC acknowledges that the current competent person statutory declaration regime presents barriers to accessing the family violence provisions for some genuine victims of family violence. When the ALRC made recommendations in Equality Before Law to expand the range of evidence capable of supporting a non-judicially determined claim, it was envisaged that more discretion would be placed in the hands of visa decision makers. At that time, the ALRC argued that:

Departmental officers are required to exercise discretion in making many decisions at present, and the Commission does not consider that this is a barrier, provided that training in domestic violence issues is provided.^[195]

21.149 The underpinning policy consideration was to ensure that victims could present appropriate evidence of family violence to a decision maker for consideration. As noted above, concerns about the integrity of the family violence exception led to legislative changes in 2005, which introduced the mechanism of referral to an independent expert. In effect, the current hybrid model only gives the visa decision-maker the discretion to make a favourable assessment in relation to the issue of proof of family violence. Where the decision maker has concerns, the system requires determination by an ‘independent expert’, whose decision becomes binding on the visa decision maker.

21.150 The ALRC considers that the shift in policy towards a hybrid model is significant, and calls into question what the appropriate role of the competent person should be, and indeed, the appropriate role of the visa decision maker.

21.151 If the system contemplates that the visa decision maker will be able to make assessments in relation to family violence, there are strong policy grounds for strict requirements governing the evidence of competent persons. This is because a visa decision maker relies upon, or is informed by, the evidence of competent persons when making a determination about family violence. In this sense, the primary purpose of competent persons is to provide an avenue for the applicant to provide substantiated evidence of his or her family violence claim and, at the same time, brings a measure of quality assurance and integrity to the visa decision maker’s decision.

21.152 However, the introduction in 2005 of the mechanism of referral to an independent expert reflected in part, concerns that visa decision makers are not adequately equipped to make determinations in relation to family violence, and that assessment should, in some circumstances, be assessed by an expert. The ALRC considers that the option to refer to an independent expert negates the need for an overly strict regime in relation to statutory evidence from competent persons. The emphasis on ‘form over substance’ does little to assist the visa decision maker in determining whether family violence has occurred. Rather, it deflects the focus of the applicant and the competent person towards meeting the procedural requirements. The ALRC is concerned that having strict procedural requirements means that there is a risk that genuine claims of family violence are precluded from being considered by a visa decision maker on technical grounds, and from being considered by an independent expert.

21.153 In the ALRC’s preliminary view, if the competent person regime is to remain in place, the rigidity of the statutory declaration requirements could be addressed by a suite of reforms to the Migration Regulations highlighted by stakeholders. These include: allowing decision makers to seek further information from competent persons where appropriate; requiring decision makers to provide reasons for referral to an independent expert; and removing the requirement for competent persons to express an opinion as to who committed the family violence. In addition, accountability and transparency of the system could be improved by requiring independent experts to give reasons for their assessments to the applicant, and providing for review mechanisms.

21.154 As stakeholders argued above, this suite of proposals would increase the accessibility of competent persons, reduce complexity and rigidity of the system, and introduce a measure of accountability and transparency in decision making. The ALRC considers that the net effect of the proposals would be to increase the accessibility of the family violence exception for victims of family violence and improve their safety.

21.155 The ALRC also acknowledges that expanding the definition of competent persons to include bi lingual workers, ESL teachers, migrant resource centre professionals, and other professionals may increase accessibility for victims of family violence. However, the ALRC has reservations that expanding the definition of competent persons to include such professionals would reduce the integrity of the competent person regime. It is worth noting that the words ‘competent’ and ‘opinion’ in the Migration Regulations reflect that such persons have some degree of expertise in family violence due to their profession or due to their position in a family-violence related field. This is not the case for someone who is, for example, an ESL teacher. At best, that person can provide corroborative and hearsay evidence as to whether family violence had occurred.

21.156 Instead, the ALRC considers that better training and education about the nature and dynamics of family violence and the family violence provisions, for those who are currently competent persons may increase their accessibility to victims of family violence. The ALRC makes proposals in relation to training and education on the nature, features and dynamics of family violence in Chapter 20.