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National Law Reform: Focus on family violence

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Cite as: April 2012 86 (04) LIJ, p.79

The ALRC has come up with 289 recommendations for reform.

Developing law reform recommendations in order to improve legal frameworks to protect the safety of people experiencing family violence has been a principal focus of the inquiries undertaken by the Australian Law Reform Commission (ALRC) since late in 2009. On 7 February 2012, the second major instalment in this work, Family Violence and Commonwealth Laws – Improving Legal Frameworks, ALRC Report 117 (2011), was tabled in Parliament following on from the joint report with the NSW Law Reform Commission Family Violence A National Legal Response, ALRC Report 114 (2010), tabled on 11 November 2010.

Together, these two reports provide 289 recommendations for reform, amounting to a major contribution to the law reform landscape in this troubling area.

The first family violence inquiry was prompted by the report Time for Action released in March 2009 by the National Council to Reduce Violence against Women and their Children.1 The report noted, among other things, the alarming cost of family violence, including forward projections of the costs of family violence to the Australian economy in 2021–22 of “an estimated $15.6 billion”.2

The terms of reference asked the ALRC and the NSWLRC to focus on the interaction in practice of a range of laws in relation to family violence and to consider “what, if any, improvements could be made to relevant legal frameworks to protect the safety of women and their children”.

In the course of the first family violence inquiry it became clear that a follow-on inquiry, focusing on commonwealth laws, would build on and complement the considerable work completed by the ALRC. As a result, in the second family violence inquiry the ALRC was given the task of looking at the treatment of family violence in federal laws, including social security law, child support and family assistance law, immigration law, employment law, superannuation law, and privacy provisions in relation to those experiencing family violence. The focus was on identifying barriers to providing effective support to those experiencing family violence and the improvements that could be made to relevant legal frameworks.

Improving commonwealth laws

A key recommendation linking both reports is for a common interpretative framework in relation to family violence, on the basis that systemic benefits would flow across the specified legislative areas, promoting seamlessness and effectiveness in proceedings involving family violence for both victims and decision makers. The common interpretative framework recommended in the 2010 report is based on a core definition of family violence, describing the context in which behaviour takes place, as well as the types of conduct – both physical and non-physical – that may fall within the definition of family violence. The context, set out in the first part of the definition, is violent, threatening or other behaviour that coerces or controls a family member or causes that family member to be fearful. The second part of the definition provides a non-exhaustive list of the types of behaviour that may constitute family violence.

A second major focus of the recommendations in the 2011 report is to facilitate the disclosure of family violence-related safety concerns by providing information and guidance material about how family violence may be relevant, for example, to a person’s social security, child support and family assistance case, at the point of registration and at subsequent intervention points. The identification of family violence-related safety concerns should result in an appropriate issues management response. In addition, the ALRC makes a number of recommendations about the incorporation of privacy safeguards to ensure the sensitive and appropriate handling of the personal information of those experiencing family violence.

In the 2011 report, the ALRC makes recommendations in each of the key areas – social security law, child support and family assistance law, immigration law, employment law and superannuation law. The recommendations reflect the need to balance the tensions between, on the one hand, facilitating access to effective mechanisms, interventions and support, and, on the other, the preservation of self-agency or autonomy, ensuring that legal responses respect the individual’s right to make decisions about matters affecting them. Such tensions were particularly clear in the consideration of social security law, including income management, and employment law. Another key principle was that of “system integrity”, to ensure that where a benefit or beneficial outcome is included in relevant laws, any requirement to verify family violence is appropriate to the benefit sought. This was to prove a distinct theme in relation to considering both social security and migration laws.

The scope of the problem of family violence is extensive. While the brief in both family violence inquiries was constrained in part by the terms of reference, as well as by the role and function of a law reform commission, within those constraints the ALRC’s family violence reports provide a significant contribution to improving legal frameworks to protect the safety of those experiencing family violence. They reflect the goal identified by the Australian government “to reduce all violence in our communities”.3 To meet the challenges of such a goal requires enormous cooperation, trust, respect, patience, commitment and leadership. As a result, the expectations of the work done by the ALRC across both inquiries – and that of the Australian, state and territory governments in response – are considerable.




ROSALIND CROUCHER is the ALRC president and Professor of Law, Macquarie University (on leave for the duration of the appointment at the ALRC) and AMANDA ALFORD is the legal officer, ALRC.

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 National Council to Reduce Violence against Women and their Children, Background Paper to Time for Action: The National Council’s plan for Australia to reduce violence against women and their children, 2009–2021 (2009), 43; KPMG, The Cost of Violence against Women and their Children, Department of Families, Housing, Community Services and Indigenous Affairs on behalf of the National Council to Reduce Violence against Women and their Children (2009).

3. Australian Government, The National Plan to Reduce Violence against Women: Immediate government actions (2009).

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