21.1 This chapter considers the evidentiary requirements for making a family violence exception claim under the Migration Regulations 1994 (Cth). Compared to overseas jurisdictions, Australia has complex evidentiary requirements that require family violence claims to be made on the basis of judicially or non-judicially determined evidence of family violence. The evidentiary requirement is an area where the competing tensions of accessibility and integrity of the visa system—discussed in Chapter 20—are most visibly manifested.

21.2 Non-judicially determined claims require an applicant to submit statutory declaration evidence from certain ‘competent persons’. The strict requirements for a valid statutory declaration—as prescribed by the Migration Regulations and interpreted by the courts—have lead to concerns that the system is a triumph of ‘form over substance’, precluding genuine victims from being able to access the family violence exception. As such, non-judicially determined evidence was identified by stakeholders as an area in need of urgent, and substantial, reform.

21.3 The ALRC considers that the premise of the competent person statutory declaration regime needs to be reconsidered. Accordingly, the ALRC proposes that the independent expert statutory declaration process should be replaced with an independent expert panel that would assess all non-judicially determined claims.

21.4 Alternatively, if the existing competent person regime is to be retained, the ALRC makes a number of proposals aimed at reducing the rigid and strict procedural requirements, and improving the transparency and accountability of the system. These proposals 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; removing the requirement for competent persons to express an opinion as to who committed the family violence; and providing review mechanisms for independent expert assessments.