Background

On 17 July 2009, the Attorney-General of Australia, the Hon Robert McClelland MP, asked the Australian Law Reform Commission (ALRC) to conduct an Inquiry together with the New South Wales Law Reform Commission (NSWLRC) into particular questions in relation to family violence that had arisen from the March 2009 report, Time for Action, produced by the National Council to Reduce Violence against Women and their Children (the National Council).[1]

Terms of Reference

Time for Action recommended that the ALRC be given two specific tasks, which are reflected in the two branches of the Terms of Reference for this Inquiry:

1)   the interaction in practice of State and Territory family/domestic violence and child protection laws with the Family Law Act and relevant Commonwealth, State and Territory criminal laws; and

2)   the impact of inconsistent interpretation or application of laws in cases of sexual assault occurring in a family/domestic violence context, including rules of evidence, on victims of such violence.

In relation to both these issues, the ALRC has been asked to consider ‘what, if any, improvements could be made to relevant legal frameworks to protect the safety of women and their children’.[2] The NSWLRC received parallel terms of reference.

The first Term of Reference requires the Commissions to consider the interaction of:

  • state and territory family violence laws with the Family Law Act;
  • state and territory child protection laws with the Family Law Act;
  • state and territory family violence laws with relevant Commonwealth, state and territory criminal laws;
  • state and territory child protection laws with relevant Commonwealth, state and territory criminal laws.

There are further areas of interaction that the Commissions consider lie within the first Term of Reference, in particular, the interaction of state and territory family violence laws and child protection laws.

The second Term of Reference requires the Commissions to focus on two key issues: inconsistency in the interpretation or application of laws; and a specific focus on sexual assaults committed by a person with whom the complainant is in a domestic or family relationship. The focus on sexual assault committed in a family violence context reflects the fact that most sexual assaults are committed by someone known to the victim.

There are areas of intersection between the two Terms of Reference, as sexual assault can also constitute family violence. However, given the particular emphasis in Time for Action on sexual assault, a separate term of reference was warranted. In addition, at the intersection of all the areas under consideration sits the issue of sexual assault of children, potentially bringing together all the areas of law under consideration in this Inquiry—child protection, criminal law, the Family Law Act, and family violence laws.

Other inquiries and reviews

The ALRC has been directed not to duplicate:

  1. the other actions being progressed as part of the Immediate Government Actions announced by the Prime Minister on receiving the National Council’s report in April 2009;

  2. the evaluation of the Family Law Amendment (Shared Parental Responsibility) Act 2006 reforms being undertaken by the Australian Institute of Family Studies; and

  3. the work being undertaken through SCAG on the harmonisation of uniform evidence laws, in particular the development of model sexual assault communications immunity provisions and vulnerable witness protections.

In addition, the Commissions have been directed not to duplicate significant other work. The Commissions have taken into account the review by Professor Richard Chisholm, former Justice of the Family Court of Australia, of the practices, procedures and laws that apply in the federal family law courts in the context of family violence (the Chisholm Review). The review was completed at the end of November 2009, and released on 28 January 2010. The Commissions have also considered the Family Law Council advice to the Attorney-General on the impact of family violence on children and on parenting, which was also released at the same time as the Chisholm Review.

Matters outside this Inquiry

The Commissions recognise that the Inquiry concerns only a narrow range of the vast number of issues raised by the prevalence of family violence—when women and children encounter the legal system in its various manifestations.

The Commissions note that family violence is also relevant—or potentially relevant—to other legislative schemes in the Commonwealth arena, including, for example, those regulating workplace relations, immigration, social security and child support. A consideration of such schemes is outside the Commissions’ current Terms of Reference. Given the importance of this issue the Commissions consider that the Australian Government should initiate an inquiry into how family violence is treated in these and other legislative schemes not falling within the present Terms of Reference.

Processes of reform

Working with NSWLRC

The Consultation Paper and this Consultation Paper Summary are released as joint documents of the ALRC and the NSWLRC. The use of the term ‘the Commissions’ throughout the documents reflects the joint nature of the Inquiry.

Consultation with designated bodies and groups

The consultation strategy for this Inquiry includes all of the bodies identified expressly in the Terms of Reference as well as key stakeholder groups. To date, consultations include—in addition to those required by the Terms of Reference—the police, offices of public prosecutions, lawyers, legal services, judicial officers, the Family Law Council, the Australian Institute of Family Studies (AIFS), the Australian Centre for the Study of Sexual Assault (ACSSA), specialist courts, academics and the Australian Family and Domestic Violence Clearinghouse (AFDVC).

Consultation Paper and Consultation Paper Summary

In the past, the ALRC’s standard practice has been to produce an issues paper and a discussion paper, prior to producing a final report. In this Inquiry, in response to the very wide-ranging and challenging Terms of Reference, and a tight time frame—twelve months and two weeks—the Commissions have had to adopt a different approach to provide appropriate opportunities for community engagement.

Only one Consultation Paper will be produced—accompanied by this Consultation Paper Summary—before the production of the final report. In these documents, the Commissions have posed questions—particularly in highly contested areas—as well as proposing options for reform.

E-newsletter

In this Inquiry the ALRC has adopted a new and additional consultation strategy, by way of monthly Family Violence Inquiry e-newsletters. Each e-newsletter also seeks views, experiences and recommendations in relation to particular topics.

Online forum

The second use of internet communication tools is the online forum conducted from November 2009 to January 2010 amongst women’s legal services, assisted by a grant from the Government 2.0 Taskforce. The online forum was conducted amongst a closed group from the women’s legal services community to facilitate frank and open discussion in a secure online environment between a specific group of stakeholders spread across Australia, about issues relevant to the concerns and experiences of that stakeholder group.

Advisory groups

A key aspect of ALRC procedures is to establish an expert Advisory Committee or ‘reference group’ to assist with the development of its inquiries. Because of the complex nature of this Inquiry the Commissions are taking the approach of using roundtables of invited experts and advisers to inform the consultative processes at key points during the Inquiry. In particular, Magistrate Anne Goldsbrough has been appointed as a part-time Commissioner for the Inquiry and George Zdenkowski is acting as special adviser.

Structure of the Consultation Paper and Summary

Part A of the Consultation Paper comprises two chapters: an introductory chapter and a chapter focused on the constitutional and international settings for the Inquiry.

Parts B and C arise principally from the first Term of Reference. Part B looks at the various interaction issues from the perspective of family violence laws; Part C looks at the interactions from the perspective of child protection.

Part D focuses on the second Term of Reference and considers sexual assault in a family violence context.

Part E focuses on existing and potential responses to the range of interaction and impact issues considered throughout the Consultation Paper, in particular, specialist courts and other agencies, integrated responses and best practice solutions.

This Consultation Paper Summary reflects this general structure. All the questions and proposals for reform are included in both documents, in the same order, and numbered in the same way, for ease of reference. If you require further background information on any particular question or proposal, you should consult the full Consultation Paper available free online at www.alrc.gov.au.

[1]           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)
.

[2]           The complete Terms of Reference for this Inquiry are set out at the front of the Consultation Paper.