Conceptual framework

2.33 The Australian Government has identified a clear goal ‘to reduce all violence in our communities’, recognising that ‘whatever the form violence takes, it has serious and often devastating consequences for victims, their extended families and the community’.^[46] The overarching objective of this Inquiry therefore reflects the Government’s objective—through recommendations for reform of legal frameworks to protect the safety of those experiencing family violence. In this context, the idea of ‘legal frameworks’ extends beyond law in the form of legislative instruments and includes education, information sharing and other related matters. The overall touchstone throughout the chapters and recommendations, however, is one of improving safety.

2.34 This section provides an outline of the key themes and policy tensions that emerged in the Inquiry: seamlessness; fairness; accessibility; effectiveness; self-agency or autonomy; privacy; and system integrity.^[47]

Seamlessness

2.35 In Family Violence—A National Legal Response, ‘seamlessness’ was identified as a foundational policy principle driving the recommendations for reform.

Seamlessness—to ensure that the legal framework is as seamless as possible from the point of view of those who engage with it.^[48]

2.36 In the context of the current Inquiry, seamlessness remains an important theme, particularly in relation to matters such as the consistency of definitions across the various Commonwealth laws under review. Consistency then informs training and awareness in service delivery areas; and facilitates better coordination of responses to family violence, through appropriate information sharing and the improvement of pathways between agencies.

Fairness

2.37 In Family Violence—A National Legal Response, fairness was a key framing principle:

Fairness—to ensure that legal responses to family violence are fair and just, holding those who use family violence accountable for their actions and providing protection to victims.^[49]

2.38 Time for Action identified as one key ‘outcome’ area, that ‘responses are just’.^[50] Fairness also reflects human rights principles—in particular, Australia’s obligations under international instruments considered above.

2.39 In this Inquiry, fairness can be expressed in a number of distinct aims, to ensure that:

• concerns about safety are properly heard, understood and responded to;

• there is procedural certainty;^[51]

• issues of family violence or safety concerns do not give rise to inappropriate advantages or disadvantages—what may be called ‘system perversities’;^[52]

• safety concerns are not exacerbated by the applicable system requirements;^[53] and

• procedural fairness is accorded where issues of allegations of family violence by someone are relevant, as distinct from an individual’s expression of fears for safety.^[54]

2.40 Fairness is also considered in relation to one of the additional themes in this Inquiry—system integrity, considered below.

2.41 A further aspect of fairness may be expressed as a need to ensure that Australia’s resources are fairly distributed, including, for example, a fair distribution of social security benefits, and eligibility for citizenship via immigration. In the context of employment, fairness also requires consideration of what are appropriately considered to be ‘workplace’ issues and the responsibility of employers, rather than private matters for employees. As remarked by the Australian Chamber of Commerce and Industry:

All too often policy makers do not sufficiently take into account these issues when they make wide sweeping recommendations which would either create new obligations, increase red-tape on a business and/or introduce new costs (most times, achieving a triple whammy). This is despite other arms of government extolling their policy objectives in reducing the administrative burden on business.^[55]

Accessibility

2.42 In Family Violence—A National Legal Response, accessibility was identified as one of the framing principles for reform: ‘to facilitate access to legal and other responses to family violence’.^[56] Systems that are complicated, in which definitions are inconsistent, where concerns of form over substance impede a response to safety concerns, and where there are complex pathways to obtain answers, work against the principle of accessibility. This theme has been expressed strongly in this Inquiry—particularly in the context of immigration law.^[57]

2.43 An aim of accessibility that complements the other principles is the avoidance of victims having to retell the circumstances of the violence, thereby ‘re-traumatising’ victims of family violence. This was a persistent theme in the earlier family violence inquiry and repeated in this Inquiry. The consequential under-reporting of family violence and fears for safety, for this and other reasons, were also identified.^[58]

Effectiveness

2.44 The principle of ‘effectiveness’—to facilitate effective interventions and support in circumstances of family violence—also builds on the work of the Access to Justice Taskforce, referred to in Family Violence—A National Legal Response.^[59] Similarly, the National Plan stressed that ‘[a]ll systems need to work together to make a major difference to the prevalence and impact of violence against women’.^[60]This theme is also reflected in the idea of ‘seamlessness’.

2.45 With respect to improving legal frameworks to protect safety, a key issue is to ensure that concerns about safety are properly heard, understood and responded to^[61]—also an aspect of fairness. A particular challenge in the context of family violence is the issue of disclosure of safety concerns, as the ability to provide effective responses may depend on if, how and when such disclosures are made. A continuing theme is that many people do not wish to disclose concerns about safety in the context of family violence. Difficulties in disclosing family violence were remarked upon in submissions to this Inquiry.^[62] The limited extent to which information about safety concerns was sought, or information provided, in some situations, was also noted.^[63]

Self-agency or autonomy

2.46 Another theme can be described as one of ‘self-agency’ or ‘autonomy’, concerning an individual’s right to make decisions about matters affecting him or her. Respect for autonomy is ‘the idea that every rational person should be able to decide matters for him or herself’.^[64] An example in the context of this Inquiry may be called the ‘right to choose’ to disclose safety concerns,^[65] or not, and the consequences that might flow from such choice.

2.47 The role of agency is a significant theme in broader jurisprudential analysis and is often seen in debates in the health law context, particularly in relation to questions of competency and principles of informed consent.^[66] As Professor Terry Carney has pointed out:

An influential school of jurisprudence conceives the legitimate role (and limits) of law to be that of protecting people against unwarranted interference with their freedom of choice/action and in providing the resources (or the ‘level playing field’) to enable people to enjoy and obtain personal fulfilment from the exercise of those rights.^[67]

2.48 Autonomy can be juxtaposed to ‘paternalism’, which ‘provides a justification for interference with a person’s own conception of their interests in order to secure their welfare’.^[68]

Respect for autonomy is meant to prohibit such interventions because they involve a judgment that the person is not able to decide for herself how best to pursue her own good. Autonomy is the ability to so decide, so paternalism involves a lack of respect for autonomy.^[69]

2.49 There is a clear tension in some areas about wanting to ensure that safety concerns are identified through appropriate screening and to respond accordingly, and an individual’s wish for certain matters to remain ‘private’ and the consequences therefore to remain within their own control or self-agency.

2.50 One particular legislative area that illustrates a response that is driven by policy concerns as to the safety of children, but operates with a constrained place for an idea of individual agency, is that of the compulsory income management regime discussed in Part C, overriding autonomy by a concern to protect vulnerable people. Such areas reveal a tension between ideas of individual freedom, and self-agency, and what may be described as protective paternalism. For example, the Australian Domestic and Family Violence Clearinghouse considers compulsory income management:

to be a disempowering approach to people who have already been significantly disempowered by the abuse (e.g. having no involvement with household finances, having to give over their money to abusive partners, experiencing emotional and psychological abuse). It is effectively blaming victims of violence for their financial situation rather than acknowledging that their hardship is more likely to be a product of the abuse.^[70]

2.51 Another area where the issue of agency is of particular concern is in relation to child support and family assistance, considered particularly in Part D, where law reform recommendations are discussed that contribute to self-agency, by empowering and enabling victims of family violence to make informed choices about participation in the child support scheme, and to contribute to decisions that affect their safety.

Privacy

2.52 A related theme to autonomy is privacy—that sensitive information concerning fears for safety is obtained and handled in an appropriate way. For example, the Office of the Privacy Commissioner identified the challenge

to ensure that initiatives contain appropriate privacy safeguards regarding the handling of an individual’s personal information, while providing strong protection against harm from family violence.^[71]

2.53 The theme of privacy is particularly relevant to the linking of service responses—an aspect of accessibility. What information is obtained and how it is used is also relevant to concerns about allegations of violence—an aspect of fairness. The extent to which privacy is accorded when a person chooses to disclose safety concerns may affect the decision to disclose.^[72]

System integrity

2.54 A number of the legislative regimes under consideration provide pathways to particular benefits. For example, to immigration, to social security payments and entitlements, to the receipt of child support, to family assistance and to fair workplace conditions. Issues of family violence may be a relevant factor that leads to a modification of the particular pathway or to a different mode of calculation of benefit. A main issue in such contexts is the kind and standard of proof required where an issue of family violence is raised.

2.55 The ALRC has identified a policy tension between ensuring that appropriate acknowledgment is given to the safety concerns of a person who is experiencing family violence and what may be broadly described as ‘system integrity’ issues, where appropriate checks and balances are included so as not to ‘incentivise’ the raising of family violence simply to achieve a benefit of some kind—or ‘playing the family violence card’ as it has been crudely described. Another kind of system integrity issue is to ensure that a person who causes another to fear for their safety in a family context is not advantaged in some way by that action.