Scope of the Inquiry

Matters outside the Inquiry

1.27 While the scope of the problem of family violence is extensive, the brief in this Inquiry is necessarily constrained both by the Terms of Reference and by the role and function of a law reform commission.

1.28 The ALRC acknowledges, as it did in Family Violence—A National Legal Response, that the Inquiry concerns only a narrow slice of the vast range of issues raised by the prevalence of family violence—when victims of such violence encounter the legal system in its various manifestations.

1.29 In Family Violence—A National Legal Response, the ALRC noted widespread concern about the link between alcohol and family violence, and recognised that any serious attempt to develop preventative measures in the area of family violence must tackle the problem of alcohol abuse in Australian society. This issue is, however, beyond the scope of the Terms of Reference for that inquiry and the current one.

1.30 The limits of law, both in terms of services but also in terms of its application, was expressed succinctly in a remark by Penny Taylor, a solicitor with the Top End Women’s Legal Service, that ‘you can have the perfect law, but …’;[39] and the Commissioner for Victims’ Rights, South Australia, stated that:

Law alone is not a satisfactory response to family violence. The law must be augmented by consistent, comprehensive and co-operative agencies, organisations and individuals. Existing law and range of approaches to family violence serve as a baseline from which people concerned about that violence and its effects can reach out to establish better laws and approaches reflecting victims’ needs and respecting their fundamental rights.[40]

1.31 The ALRC notes that the National Plan identifies many other strategies in areas beyond legal frameworks to achieve outcomes such as relationships that are respectful, and services that meet the needs of women and children.[41]

Raising systemic issues

1.32 This Inquiry raised some broad, systemic problems that require solutions beyond those that can be described as improvements to protect the safety of those experiencing family violence. For example, concerns about the calculation of child support payments may be described as relating to a systemic issue. If recommendations were to go to the child support system as a whole, this may be seen to go beyond the brief as defined by the Terms of Reference. In such cases, where concerns of a systemic kind have been expressed to the ALRC, they are noted in the relevant context, although no recommendations are developed in response. A treatment of this kind at least provides a public forum through which to note concerns in the context of a more specific inquiry, as constrained by the Terms of Reference.

1.33 On occasion, however, the ALRC has identified particular areas of law of which stakeholders have urged review. Here the approach has been one of suggesting that ‘consideration be given’ to repeal or review of those areas, rather than making a specific recommendation that such action be taken—given the specific limits of the Terms of Reference.

[39] Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—A National Legal Response, ALRC Report 114; NSWLRC Report 128 (2010), [1.67].

[40] Ibid, [1.67].

[41] FaHCSIA, National Plan to Reduce Violence Against Women and Their Children—Including the First Three-year Action Plan (2011); Australian Government, The National Plan to Reduce Violence against Women: Immediate Government Actions (2009); National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence Against Women and their Children, 2009–2021 (2009), Outcomes 2, 3.