Australian Law Reform Commission Final Report on Family Violence

The Australian Law Reform Commission, in conjunction with the New South Wales Law Reform Commission, has published its report Family Violence - A National Legal Response.

On 17 July 2009, the Attorney-General of Australia had asked the two commissions to conduct a joint inquiry into particular questions in relation to family violence that had arisen out of the 2009 report of the National Council to Reduce Violence against Women and their Children.

They looked at:

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.

The report makes 187 recommendations for reform.

The main thrust is the need to end legislative and policy fragmentation of the issue because of overlapping Commonwealth, state and territorial jurisdiction. The report calls for the adoption of a common interpretative framework in relation to family violence across state and territory family violence legislation, the Family Law Act and the criminal law. This involves: establishing a shared understanding of what constitutes family violence across these legislative schemes; and of the nature, features and dynamics of family violence.

From the Executive Summary:

"The Commissions also recommend ... that this definition be complemented in family violence legislation by a provision that explains the nature, features and dynamics of family violence, including: while anyone may be a victim of family violence, or may use family violence, it is predominantly committed by men; it can occur in all sectors of society; it can involve exploitation of power imbalances; its incidence is underreported; and it has a detrimental impact on children. In addition, family violence legislation should refer to the particular impact of family violence on: Indigenous persons; those from a culturally and linguistically diverse (CALD) background; those from the gay, lesbian, bisexual, transgender and intersex communities; older persons; and people with disabilities. The Commissions recommend the adoption of a similar provision in the Family Law Act (...)"

"The net effect of the recommendations, taken as an overall reform package, will be that:

• the legal framework is as seamless as possible from the point of view of those who engage with it;
• victims have better access to legal and other responses to family violence;
• legal responses to family violence are fair and just, holding those who use family violence accountable for their actions and providing protection to victims, but also ensuring safeguards to accused persons in the criminal justice context; and
• interventions and support in circumstances of family violence are effective."