Background to the Inquiry

Government commitment

1.4 This Inquiry follows the one concluded by the ALRC in conjunction with the New South Wales Law Reform Commission (the Commissions) in October 2010. The resulting report, Family Violence—A National Legal Response (2010) (ALRC Report 114), contained 187 recommendations for reform. The overarching, or predominant principle reflected in the recommendations was that of seamlessness and that, to achieve this, both a systems perspective and a participant perspective must be connected, to the greatest extent possible, within the constitutional and practical constraints of a federal system. This seamlessness was expressed in recommendations focused on improving legal frameworks and improving practice.

1.5 The Commissions drew attention to the need for a further inquiry focusing on other legislative schemes in the Commonwealth field, and these are reflected in the Terms of Reference for this Inquiry.^[2]

1.6 Both inquiries emanate from the work of the National Council to Reduce Violence against Women and their Children (the National Council), established in May 2008, which was given the role of drafting a national plan to reduce violence against women and their children.^[3] The report, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 (Time for Action), was released on 29 April 2009.

1.7 In response to Time for Action,the Australian Government announced a package of immediate actions,^[4] including investments: in a new national domestic violence and sexual assault telephone and online crisis service; in primary prevention activities towards building respectful relationships; and to support research on perpetrator treatment.

1.8 The Government also committed to working with the states and territories through the Standing Committee of Attorneys-General (SCAG),^[5] to establish a national scheme for the registration of domestic and family violence orders; to improve the uptake of relevant coronial recommendations; and to identify the most effective methods to investigate and prosecute sexual assault cases.^[6]

1.9 The first three-year action plan of the National Plan to Reduce Violence against Women and their Children (the National Plan) was released in February 2011,^[7] providing the ‘framework for action’ by all Australian governments to reduce violence against women and children.^[8] The six ‘national outcomes’ are:

1. Communities are safe and free from violence;

2. Relationships are respectful;

3. Indigenous communities are strengthened;

4. Services meet the needs of women and their children experiencing violence;

5. Justice responses are effective; and

6. Perpetrators stop their violence and are held to account.

1.10 National Outcome 5 included as one of its three strategies that ‘justice systems work better together and with other systems’. ‘Immediate national initiatives’ pursuant to this strategy included that the Commonwealth, states and territories should ‘consider the recommendations’ in Family Violence—A National Legal Response; and that the current Inquiry be established.^[9]

1.11 A number of the broader outcomes and strategies in the National Plan are of key relevance in this Inquiry. They are considered in the summary of the framing principles and themes discussed in Chapter 2.

Extent of the problem of family violence

1.12 Time for Action drew attention to the extent of the problem of family violence in Australia. Time for Action estimated that ‘[a]bout one in three Australian women experience physical violence and almost one in five women experience sexual violence over their lifetime’.^[10] Research undertaken for the National Council also reported that an estimated 750,000 Australian women ‘will experience and report violence in 2021–22, costing the Australian economy an estimated $15.6 billion’.^[11]

1.13 The National Council also drew attention to the fact that, while violence ‘knows no geographical, socio-economic, age, ability, cultural or religious boundaries’,^[12] the experience of violence is not evenly spread. For example, Indigenous women reported higher levels of physical violence during their lifetime than did non-Indigenous women, and the violence was more likely to include sexual violence.^[13]

1.14 Submissions to this Inquiry reiterated such evidence. The Indigenous Law Centre of the University of New South Wales reported, for example, that in New South Wales in 2008 the rates of reported victims of domestic violence were six times higher for Aboriginal females than non-Aboriginal females.^[14] This submission also noted that ‘[t]he true extent of the incidence and prevalence of family violence for Indigenous women and children is largely hidden’,^[15] and contributing factors were ‘under-reporting, inconsistent approaches to screening by service providers and incomplete data relating to the Indigenous status of victims’.^[16]

1.15 The National Council pointed to other groups who may also experience violence in a different and disproportionate way, for example: women with disability; women who identify themselves as lesbian, bisexual, trans or intersex (LGBTI); and immigrant women.^[17] Such experiences were also strongly echoed in submissions to the ALRC and noted in Family Violence—A National Legal Response,^[18] as well as in submissions to this Inquiry.^[19]

1.16 Time for Action identified a range of compounding factors in the presentation of violence, especially alcohol, and that of geographical and social isolation—and both were identified as critical issues for Indigenous women and children.^[20] Similar concerns were reported in Family Violence—A National Legal Response,^[21] as well as in submissions to this Inquiry.

1.17 Not only are there compounding factors causing family violence, there are also compounding consequences, such as: financial difficulty flowing from economic dependence on a violent partner; homelessness, where women are seeking to escape violence at home; and health issues associated with treating the effects of violence on the victim.^[22] The Homeless Persons’ Legal Service identified domestic and family violence as ‘overwhelmingly central to women’s trajectories into homelessness’;^[23] and the Department of Human Services added that ‘[t]here are profound repercussions for those who experience family violence, in addition to long term consequences for both individuals and the communities in which they live’.^[24]

Under-reporting and barriers to disclosure

1.18 Family Violence—A National Legal Response identified a continuing theme of the under-reporting of family violence and the range of concerns that may impede disclosure.^[25] Barriers or reluctance to disclose family violence was a theme that continued in this Inquiry.^[26] The Inner City Legal Centre argued that ‘one of the greatest challenges’ in talking about family violence is that it is a ‘hidden issue’.^[27] Women’s Health Victoria, for example, referred to the ‘silencing effect’ of ‘the stigma associated with family violence’—an effect also cited by the Homeless Persons’ Legal Service and the Office of the Australian Information Commissioner.^[28] The National Network of Working Women’s Centres identified a range of barriers in the employment context why people experiencing family violence may not disclose it, including:

• Loss of job.
• Not being considered for work if a disclosure of family violence is made at interview.
• Shame.
• An escalation of violence from a partner if they become aware that a disclosure of family violence has been made.
• Risking disclosure of their details or whereabouts by the employer or other person in the workplace, perhaps to the detriment of them and their children’s safety.
• Judgemental attitudes and responses from the people they disclose to, whether that be workmates, the Union or OHS representative or the employer.
• Fears about the safety of their workmates and having to shoulder the responsibility of that, rather than the partner who is causing the threats or violence being seen as ‘responsible’.
• Fears about their own safety.
• Using up all leave options and thus having no leave entitlements to access if they or their children become ill.^[29]

1.19 The Aboriginal & Torres Strait Islander Women’s Legal Services NQ Inc referred to many reasons for Indigenous women feeling uncomfortable and unwilling to disclose family violence, including:

• Feelings of shame relating to the nature of the family violence or to community, family or cultural values;
• Feeling uncomfortable with the social worker/other person conducting the screening if she is judgemental, paternalistic, condescending or not skilled in communicating with Aboriginal and Torres Strait Islander women;
• Not being able to recognise that family violence has occurred;
• Fear of not being believed;
• Fear of not being understood;
• Fear of being judged by others generally, particularly where the person already feels marginalised by the wider community.^[30]

1.20 Moreover, for Indigenous communities, underreporting is common

due to the fear that any attempts to obtain assistance from police or medical staff will result in mandatory reporting to child protection authorities and removal of children. In these cases the mandatory reporting requirements actually work against the protection of the children as well as the primary victim.^[31]

1.21 Language difficulties were also seen as a significant barrier for Indigenous as well as culturally and linguistically diverse (CALD) communities.^[32] The Aboriginal & Torres Strait Islander Women’s Legal Services NQ Inc singled out the need for ‘culturally appropriate language and procedure, for them to be able to be screened by a person whose cultural understanding places women at ease, to be able to access services which are culturally appropriate’.^[33]

1.22 The Federation of Ethnic Communities’ Councils of Australia (FECCA) highlighted not only language barriers, but also ‘cultural practices and attitudes towards private and public family issues, gender roles and information provision preferences’:

there are systemic factors which may position CALD women and their families at greater risk of experiencing certain types of violence and/or disadvantage and isolation from the appropriate support services. … [G]ender roles which can create isolating financial, cultural and religious dependency arrangements with spouses, families and communities can be considered relevant to the experiences of CALD women undergoing family violence.^[34]

1.23 The Good Shepherd Youth & Family Service stated that women from immigrant and refugee backgrounds ‘face particular obstacles in their struggle to break the cycle of violence’ and that women from CALD communities in rural areas ‘often have unique issues’,

including lack of trust in the confidentiality of support services, lack of knowledge of services, especially in newly arrived communities, higher unemployment and poor education opportunities.^[35]

1.24 For people who identify as LGBTI there are particular compounding difficulties in terms of disclosure of family violence. The Inner City Legal Centre submitted that the experiences of family violence in the LGBTI community ‘differ from the wider community’s experience’ and that ‘it may not be clearly identifiable to people who are not part of these communities’.^[36]

1.25 For men who are victims of family violence there may also be particular barriers to disclosure. The Lone Fathers Association, for example, referred to ‘a complex of reasons’ for a man’s reluctance to disclose family violence, including:

the shame involved in publicly admitting his victim status, a desire to hold his family together and protect his children from a violent partner, and/or a belief that if he did complain he would be unlikely to be taken seriously by the police or the judiciary.^[37]

1.26 Family Voice Australia argued that reliance on the underpinning conclusion that ‘family violence is predominantly committed by men’, as reflected in the discussion of the nature, features and dynamics of family violence, may add to reluctance to disclose and ‘runs the risk of obscuring the reality of family violence perpetrated by women and making male victims of family violence invisible or more likely to be overlooked’, and is ‘likely to make disclosure of family violence more difficult for male victims of family violence perpetrated by women’.^[38]