International setting

2.3 A number of international conventions are relevant to the legal framework in relation to violence in the family, and acknowledge that violence against women and children is a violation of human rights.

2.4 Such international instruments do not become part of Australian law until incorporated into domestic law by statute.^[3] However, as Professors Bryan Horrigan and Brian Fitzgerald commented, ‘[i]nternational and transnational sources of law increasingly affect the development of Australian constitutional, statutory, and case law, and also governmental policy-making’.^[4] For example, as noted by the High Court in Minister for Immigration and Ethnic Affairs v Teoh, a convention can assist with the interpretation of domestic law:

The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law.^[5]

2.5 The particular instruments of relevance to this Inquiry are summarised below in chronological order of introduction.

Universal Declaration of Human Rights

2.6 The Universal Declaration of Human Rights (UDHR), proclaimed by the General Assembly of the United Nations (UN) on 10 December 1948, was the first international expression of human rights.^[6] It is the basis of a number of later instruments that embody and expand upon its provisions. The ones of particular relevance to this Inquiry include: art 10 (the right to a fair and public hearing); art 12 (protection of privacy, family and home); art 16 (concerning marriage and the family); and art 22 (the right to social security).

International Covenant on Civil and Political Rights

2.7 The International Covenant on Civil and Political Rights (ICCPR), described as ‘one of the most important human rights conventions of the United Nations era’,^[7] was adopted by the UN General Assembly on 16 December 1966 and ratified by the Australian Government in 1980.

Protecting families

2.8 A number of articles of the ICCPR are of particular relevance in the context of a consideration of family violence. Article 23 provides that ‘[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State’.^[8] It also stipulates that signatory countries will take appropriate steps ‘to ensure equality of rights and responsibility of spouses as to marriage, during marriage and at its dissolution’.^[9]

2.9 Article 17 provides protection for the family, including specific recognition of privacy, in stipulating that:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.^[10]

Protecting children

2.10 With respect to children, there are two particular articles of note. Article 23 refers to the position of children after the dissolution of marriage, stating that provision shall be made for their ‘necessary protection’.^[11] Article 24 focuses particularly on children in their own right, that they have the right ‘to such measures of protection as are required’ on the part of the child’s ‘family, society and the State’. In 1990, the UN adopted the Convention on the Rights of the Child—considered specifically below.

Protection of the law

2.11 Other key rights of a more general nature in the ICCPR are the right to a ‘fair and public hearing’ in art 14, with minimum procedural guarantees in the case of criminal charges;^[12] and the affirmation in art 26 that ‘all persons are equal before the law and are entitled without any discrimination to the equal protection of the law’.

2.12 There are also provisions that target discrimination. First, art 2 provides a positive assertion of the responsibility of signatories to ensure equal treatment, ‘without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. Secondly, art 26 provides a specific proscription of discrimination ‘on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.

Tensions in the protected rights

2.13 In the context of family violence, there are evident tensions in the way that these articles—and the expectations they engender—might operate. A person accused of violence that may be a criminal offence, for example, is entitled to a fair hearing (art 14); the family itself, as a fundamental unit of society, is entitled to protection (art 23); and the child is entitled to the expectation of protection by his or her family and the state (art 24). When, for example, a child is the subject of abuse by a family member, each of these articles, and their inherent expectations, may be in apparent conflict. Similarly, where a woman or man is the subject of family violence, the protection of the family requires the family to be open to some public scrutiny—notwithstanding the right to privacy and the protection of the home (art 17).

Convention on the Elimination of Discrimination Against Women

2.14 While discrimination against all persons is proscribed under art 26 of the ICCPR, this provision is supplemented by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),^[13] which came into force for Australia on 27 August 1983.^[14] In March 2009, Australia also became a party to the CEDAW Optional Protocol, which allows individuals to bring a complaint directly to the UN CEDAW Committee, after all domestic remedies have been exhausted.

2.15 CEDAW defines discrimination as any distinction, exclusion or restriction that prevents the equal exercise or enjoyment by women of human rights and fundamental freedoms ‘in the political, economic, social, cultural, civil or any other field’.^[15] In doing so, it ‘moves beyond the concept of discrimination used in other human rights treaties’^[16] to define the concept of discrimination ‘more broadly than earlier international treaties on women’.^[17] Elizabeth Evatt, a member of the UN Committee on the Elimination of Discrimination from 1984 to 1992, described CEDAW as ‘an international bill of rights for women’^[18] and as representing ‘a commitment by the international community to equality in the enjoyment of human rights’.^[19]

2.16 In an inquiry in the 1990s as part of the Australian Government’s ‘New National Agenda for Women’, the ALRC noted that, as a party to CEDAW, Australia had undertaken to pursue ‘by all appropriate means and without delay a policy of eliminating discrimination against women’.^[20] While observing that, as a party to the ICCPR, ‘Australia must guarantee the equal protection of human rights to men and women without discrimination and equality before the law’,^[21] the ALRC concluded that a significant aspect of gender inequality—and therefore of discrimination in contravention of CEDAW—was ‘women’s experience and fear of violence’.^[22]

Declaration on the Elimination of Violence against Women

2.17 At the time that the ALRC was conducting its work in the 1990s that led to the report, Equality Before the Law: Justice for Women,^[23] the Declaration on the Elimination of Violence against Women was adopted by the General Assembly of the UN on 20 December 1993, to complement and strengthen CEDAW. Violence against women was defined as meaning

any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.^[24]

2.18 This was further spelled out as encompassing:

(a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation;

(b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution;

(c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.^[25]

Convention on the Rights of the Child

2.19 The UN Convention on the Rights of the Child (CROC)^[26] has been described as ‘the most comprehensive statement of children’s rights ever drawn up at the international level’,^[27] and as providing ‘a universally accepted rights-based framework for addressing the treatment of children’.^[28] It was ratified by Australia on 17 December 1990.^[29]

2.20 CROC sets out the full range of human rights—civil, cultural, economic, political and social rights—pertaining to children under 18 years of age.^[30] The four core principles of the Convention are non-discrimination; devotion to the best interests of the child; the right to life, survival and development; and respect for the views of the child. In a joint 1997 report, the ALRC and the Human Rights and Equal Opportunity Commission stated that:

CROC recognises that children, as members of the human family, have certain inalienable, fundamental human rights. It emphatically endorses the proposition that the family is the fundamental environment for the growth and well-being of children and states that, for the well-being of society, the family should be afforded protection and assistance so as to fully assume its responsibilities. At the same time, it recognises that children need special safeguards and care where the family does not or cannot assume these roles.^[31]

2.21 That same year, in B and B: Family Law Reform Act 1995, the Full Court of the Family Court expressed the view that CROC

must be given special significance because it is an almost universally accepted human rights instrument and thus has much greater significance for the purposes of domestic law than does an ordinary bilateral or multilateral treaty not directed at such ends.^[32]

2.22 A number of the provisions of CROC were particularly relevant to Family Violence—A National Legal Response and continue to be an important part of the international setting for this Inquiry, especially the principle that ‘the best interests of the child’ is a ‘primary consideration’.^[33]

Convention on the Rights of Persons with Disabilities

2.23 The Convention on the Rights of Persons with Disabilities and its Optional Protocol were adopted by the UN on 13 December 2006 and entered into force on 3 May 2008.^[34] Australia ratified the Convention on 17 July 2008, joining other countries around the world ‘in a global effort to promote the equal and active participation of all people with disability’.^[35] The purpose of the Convention, as set out in art 1, is

to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.

2.24 The Convention sets out the following guiding principles in art 3:

a. Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;

b. Non-discrimination;

c. Full and effective participation and inclusion in society;

d. Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;

e. Equality of opportunity;

f. Accessibility;

g. Equality between men and women;

h. Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

2.25 With respect to this Inquiry, a key article of relevance is art 16, ‘Freedom from exploitation, violence and abuse’, by which States parties agree to take:

all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects.^[36]

2.26 States parties also agree to put in place

effective legislation and policies, including women- and child-focused legislation and policies, to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.^[37]

Declaration on the Rights of Indigenous Peoples

2.27 The Declaration on the Rights of Indigenous Peoples was adopted by the UN General Assembly on 13 September 2007^[38] and has been described as ‘the greatest development on indigenous rights’ in the decade up to 2009.^[39] Australia, Canada, New Zealand and the United States originally voted against the Declaration, but on 3 April 2009, the Australian Government reversed this position. At the time, the Minister for Families, Housing, Community Services and Indigenous Affairs, the Hon Jenny Macklin MP, remarked that the Declaration was supported ‘in the spirit of re-setting the relationship between Indigenous and non-Indigenous Australians and building trust’.^[40]

2.28 The Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Gooda, hailed the Declaration as providing ‘a blueprint for Indigenous peoples and governments around the world’, containing the ‘minimum standards for the survival, dignity and well-being of Indigenous peoples all over the world’.^[41]

2.29 The emphasis is ‘collectivist or peoples oriented’, in contrast to that of the UDHR and the ICCPR, which emphasise ‘human dignity and the worth of every individual person’.^[42] A number of articles, however, combine both approaches.^[43] Article 1, for example, provides that Indigenous peoples have the right to the full enjoyment of all human rights recognised by the UN, ‘as a collective or as individuals’. Article 2 then affirms the right of Indigenous peoples and individuals to be free from any kind of discrimination, in particular that based on their Indigenous origin or identity.

2.30 Article 22 focuses upon particular forms of discrimination and protection from violence:

1. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities in the implementation of this Declaration.

2. States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.

2.31 The Community Guide to the UN Declaration on the Rights of Indigenous Peoples, produced by the Australian Human Rights Commission in 2010, explains in relation to art 22 that:

Violence against our women and children is an issue of concern to Aboriginal and Torres Strait Islander communities.

Governments have obligations to take actions to prevent and protect our women and children from violence and discrimination.

Laws and policies developed to protect women and children should not at the same time discriminate against Aboriginal and Torres Strait Islander peoples. That is why governments must work with us in meeting these obligations.^[44]

2.32 The rights affirmed in the Declaration provide an additional lens through which to consider a range of the issues in this Inquiry. While many of the articles focus on community and cultural issues that are unique to Indigenous communities, the affirmation of rights of individuals within those communities is an additional layer of commitment to the rights spelled out in the other international instruments considered above.^[45]