STOP DV CONFERENCE 2015 – KEYNOTE ADDRESS

Acknowledgement of Country

I would like to acknowledge the Ngunnawal people who are the traditional custodians of this land on which we are meeting and pay respect to their Elders both past and present. I extend this respect to all Aboriginal and Torres Strait islander peoples in attendance today.

Intro

Today I will be recognising the gendered nature of domestic violence as it relates to women and children. Men are also victims of domestic and family violence and as the ACT Victims of Crime Commissioner I try to use language that is inclusive of male victims. However, domestic violence is not gender equal. Given the appalling statistics on violence against women, we must continue to assert that structural gender inequality and stereotyping play a powerful role in the alarming statistics relating to violence against women in this country. Today therefore my address reflects that fact.

Domestic violence is a human rights abuse – it violates a range of fundamental human rights, most notably the right to life, liberty and security of person and the right to privacy. These human rights are afforded to perpetrators of domestic violence but far less often to their victims. The former Australian Sex Discrimination Commissioner, Elizabeth Broderick, said that domestic violence is the gravest human rights abuse happening in Australia today.

Information sharing that facilitates the management of risk experienced by victims of domestic violence should be one of the core elements of collaborative approaches in responding to domestic violence. However, perceptions about privacy rights, laws and policy guidelines prevent the sharing of information relating to risk, at times with deadly consequences. We must change our culture of secrecy around information management.

Human Rights

Domestic violence elicits several of the articles from the United Nations Universal Declaration of Human Rights including:

Article 3 – everyone has the right to life, liberty and security of person

Article 5 – no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment

Article 7 – all are equal before the law and are entitled without any discrimination to equal protection of the law

Australia is a signatory to the United Nations Commission on Human RightsDeclaration on the Elimination of All Forms of Violence Against Women that stresses that the state must refrain from actions that violate human rights and for certain human rights, act positively to protect.

And the United Nations Commission has affirmed that ‘violence against women constitutes a violation of their human rights and fundamental freedoms and that violence against women impairs or nullifies their enjoyment of those rights and freedoms.’ The resolution emphasized the duty of governments to refrain from engaging in violence against women and to exercise due diligence to prevent, investigate and punish acts of violence against women…’

In their recent submission to the Royal Commission into Family Violence, the Victorian Human Rights Law Centre stated that

[in accordance with] the due diligence framework… governments must take every effort to prevent violence against women occurring in the first instance. Failing effective prevention, governments must investigate all alleged acts, prosecute and punish perpetrators, and provide reparations to victims.

The venerable Julian Burnside has noted the irony of anti-terror control order legislation that allows severe restrictions (including house arrest) to be placed on alleged terrorists in a secret hearing. He points out that ‘the risk of a woman dying in Australia as a result of domestic violence is one hundred times greater than her risk of dying in a terror attack’, yet a woman seeking protection from a violent partner is unlikely to get the type of protection afforded by an anti-terrorism control order.

The November 2015 publication Change the Story – A shared framework for the primary prevention of violence against women and their children in Australia, published in collaboration by Our Watch, ANROWS and Vic Health describes violence against women as a ‘prevalent, serious and preventable human rights abuse’ – and poses ‘an urgent need for collective action in this space’. This framework is informed by a ‘rights based imperative to end violence, and the human rights principles of collaboration, participation and ensuring equality outcomes for all’. Indeed, they go on to argue that political leadership is needed at all levels and is assisted by ‘framing prevention of violence against women as a human rights obligation.’ P51

It is clear therefore that domestic violence is recognised by a range of reputable human rights bodies to be a violation of human rightsand our governments are compelled to prevent and respond to violence against women.

Collaborative responses, information sharing and risk assessment

I now want to focus upon collaborative responses to domestic violenceand identify how these responses share information about victims and offenders, with consideration for how this informs risk assessment and risk management.

As we know, collaborative responses to domestic violence, also known as integrated or coordinated responses, recognise the complex, often multiple, needs of victims and perpetrators; and attempts to ensure greater safety for victims and accountability of offenders.[1]

Information sharing that helps manage the risk being experienced by victims of domestic violence should be one of the core elements of collaborative approaches in responding to domestic violence.

In my jurisdiction, information around domestic violence is routinely shared as part of the ACT Family Violence Intervention Program (2012, p xiii). The FVIP is the coordinated interagency response to family violence incidents that come to the attention of the police and proceed to prosecution. The FVIP is focussed on ‘monitoring and improving the criminal justice system response to allegations of violence made within families and intimate relationships’ (2012, p1), by doing so, it recognises that its function is limited in terms of preventing family violence more broadly or responding to the full range of victims of DV.

Core components of the FVIP include:

  • An ACT Policing policy of pro-charge; pro-arrest and a presumption against bail for family violence matters
  • Family violence incident review meetings between police and DVCS
  • The early provision of victim support provided through the Domestic Violence Crisis Service
  • Specialist prosecutors for family violence
  • Coordination and case management through a case tracking system for matters in the criminal justice system.

Case tracking participants meet weekly to consider all family violence matters that come to the attention of police and proceed to prosecution. The participants are: ACT Policing (who administer the case tracking program and case tracking list); the Office of the DPP; the Domestic Violence Crises Service; child protection workers and Victim Support ACT.

At case tracking meetings information is shared about the victim and perpetrator relating to risk and agencies coordinate their support to those victims who are most at risk. Information is shared under section 136 of the Crimes Sentencing Act 2005, which allows for information about an offence, including an alleged offence, to be exchanged for the purposes of the other entity.

Case tracking does not currently make use of a risk assessment tool, although work has been underway this year to introduce one to measure victim safety. In the ACT, once a family violence matter is finalised in the court, the case is removed from the case tracking list and no longer discussed so we have a limited window of opportunity to mitigate risk.

Another example of an integrated family violence response system is Tasmania’s Safe at Home program that has Regional Coordinating Committees – that are responsible for collaborative service delivery.’ (ANROWS Summary, 2015, p34). Integrated Case Coordination meetings take place weekly ‘in each of the four police districts’ (Safe at Home Review, 2009, p 13). The participants of these meetings include the Tas Pol Victim Safety Response Team; Police Prosecutions; Family Violence Counselling and Support Service; Court support and liaison service; and child protection. These committees continue to share information related to the victim, the offender and the criminal matter’s progress.

And there are a range of risk assessment tools being used across the country. Tas Pol use a Risk Assessment Safety Tool – the RAST. Western Australia’s integrated response model uses a common risk assessment framework and multi-agency case management as does South Australia’s Family Safety Framework.

Limitations of collaborative responses, information sharing and risk assessment

Future management of domestic violence issues will rely upon effective collaborative responses such as these, based on information sharing and validated risk assessment tools. But collaborative responses have some serious limitations that we need to address if we are to improve the capacity for victims of DV and those who support them to share information in order to measure and manage their risk.

If we are to reduce the prevalence domestic violence we need to pay more attention to the details in implementing effective collaborative responses.

A challenge of current responses is that they are all heavily restricted by limiting their case coordination and risk assessment to family violence that comes to the attention of police. And as we know, only a limited number of family violence incidents are reported to police –some say half and certain categories of victims report far less so (a 2013 NSW report[2]) .

Domestic and Family Violence Death Reviews across Australia are telling us that in a number of domestic violence related homicides, the victim either had no contact, or very little contact with police, the civil justice system or specialist DV support services before they were killed.

There are a significant number of women and their children who are at risk of all types of domestic and family violence that do not engage with the criminal justice system because they believe they are safer doing otherwise. Their perceptions and judgements about their own protective factors should inform a systemic response. It is unsafe to focus our collaborative responses only on those involved in the criminal justice system.

We need to broaden our focus to help manage the risks of those women who are disinclined to report domestic violence for a range of reasons, including unhelpful past experiences with police or courts, discouragement from family or friends, fear of stigma or a lack of understanding in the community that domestic violence includes coercion and control in the absence of hitting.

These women are not accessing services and support and yet many are at high risk of harm. We need to develop our human services to respond to them. By failing to develop those responses beyond our criminal justice system we are inadvertently depriving them of the right to life, liberty and security of person.

All risk assessment tools have predictive limitations. We should be cautious in relying upon them solely to identify high risk situations. Most risk assessment tools make an assumption that physical violence has to have already occurred for there to be a risk of further violence or lethality, however, Death Reviews have observed that a history of physical violence may not be a feature of many domestic violence deaths. Basing risk measurement and responses to DV on the presence of physical violence misses other important factors such as coercion and control in all its forms.

There is too much uncertainty about when and what information we can share to measure risk. Little wonder. There is a complex array of privacy provisions that collaborative responses attempt to navigate and criminal sanctions if these provisions are breached. The ACT has nine statutes with provisions relating to privacy and/or secrecy that apply to one or more participating agencies in our case tracking program. Those statutes are overlaid with policies and codes of conduct that also inform how individual privacy and confidentiality can or should be managed.

So, the environment in which we work to support victims of domestic violence by developing collaborative responses based on information sharing and risk management is one that strongly discouragesand penalises the sharing of the information that we need to achieve that goal.

Information sharing about a perpetrator’s criminal record, current charges and anecdotal history of violence, police call-outs, previous partners who have taken out protection orders, child protection services interventions, drug and alcohol abuse or their non-compliance with mental health community treatment orders are hedged with privacy provisions that work against managing their risk to others.

Rosie Batty has spoken about important information about Luke Batty’s father that was not shared with her that she said could have helped protect Luke and uphold his right to life.

And Justice Ian L. Gray, the Victorian Coroner who conducted the Inquest into Luke’s death recommended that the State of Victoria identify legislative, or policy impediments to the sharing of relevant information, and remove such impediments,[3] so that all agencies, including the Magistrates’ Court of Victoria, operating within the integrated family violence system, are able to share relevant information in relation to a person at risk of family violence.[4]

The lack of balance in applying privacy and confidentiality to a perpetrator’s interests with the safety interests of others, in a range of settings outside the criminal justice system, such as mental health services and drug and alcohol services,presents a very real, continuing risk to victims and potential victims of domestic violence.

It seems to me thatour service systems support a belief that duty of care is limited to the safety and privacy of the client who is the perpetrator of violence, with little emphasis placed upon a regard to balance the safety of particular individuals. The focus is on a generalised concept of community safety,rather than a direct consideration for the safety of those who have to live in relationship with thosewho abuse and control.

We must also be alert to the rights of victims to privacy. I hold some real concerns about sharing information about victims who are involved in collaborative responses to DV without their consent. We all need to be very sensitive to their right to privacy and ensure that their personal circumstances are discussed in multi-agency forums with their consent wherever possible.

Privacy laws set the parameters about when to share information and the threshold without consent is high. The Commonwealth Office of the Privacy Commissionerhas stated that ‘the use or disclosure of personal information for the purpose of ensuring the safety of a victim of family violence or the wellbeing of an affected child is too low a test and the disclosure of information should be limited to situations where there is serious risk.’

What is serious risk and who defines it?

The ACT Heath Records (Privacy and Access) Act 1997 [Principle 10] specifies that personal health information should not be disclosed about a consumer unless ‘the record keeper believes, on reasonable grounds, that the disclosure is necessary to prevent or lessen a serious and imminent risk to the life or physical, mental or emotional health of the consumer or someone else.’ This is quite a broad definition as it recognises risks to mental and emotional health.

I say that any person living with domestic violence lives a life that is constantly under serious and imminent risk. But how do we justify that position when we work in a framework of privacy laws and regulations and secrecy provisions that have criminal sanctions if we breach those provisions? Understandably, we err on the side of conservatism because it is easier not to share information. This is feedinga culture of reluctanceto share information across our human service systems.

There must be a balancing of privacy rights and human rights when responding collaboratively to domestic violence along with an active consideration of the requirements of relevant legislation, policies and codes of conduct. We need a better, clearer understanding of how, why and when to share information. In doing so we must have access to the necessary information that allows us to weigh the right to privacy of the victim and perpetrator; with the victim’s right to life, liberty and security of person.

Collaborative responses and information sharing practices should include:

  • seeking and receivingconsent from all individuals whose information may be shared;and,
  • tailoring collaborative responses to the individual needs of the victim, involving only the agencies that are relevant to their safety needs.

A person’s right to privacy obscures information sharing and can hinder collaborative responses but it is a necessary consideration. Gaining consent from victims to share their personal information is best practice in terms of privacy protectionand it is an individual’s right under privacy laws. The NSW Domestic Violence Information Sharing Protocol (2014, p43) helpfully outlines the essential elements of consent – in that it is:

  • VOLUNTARY;
  • INFORMED (meaning that reasonable efforts are made to ensure the victim has relevant information to understand what they are consenting to);
  • SPECIFIC (being clear about the purpose of sharing information).
  • CURRENT – meaning consent does not continue indefinitely and the victim should be informed about the length of time it will apply and be provided with information about how to revoke consent).
  • And the victim has the CAPACITY to provide consent.

People who consent should have the right to be informed subsequently about what information has been shared and the outcome of information sharing. Victims should be made aware of actions they could take to improve their safety as well as any actions being taken by services providers involved (including who is responsible for what). We must include victims in decision making that affects them.

What about those who do not have the opportunity to give consent to having their information shared?

The Office of the Privacy Commissioneragrees that there may be value in developing guidelines clarifying what constitutes serious threat and that threats to health are not limited to physical harm but would also include threats to an individual’s psychological wellbeing. The exception may therefore be relied on to disclose information where there is the threat of serious psychological harm that may be experienced as a result of ongoing domestic violence or fear for safety.’[5]