SUBMISSION
Australia’s National Human Rights
Action Plan Framework 2012
5 March 2012
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Prepared by Women’s Legal Service Victoria for the
Commonwealth Attorney General’s Department
Introduction
Women’s Legal Service Victoria (WLSV) welcomes the opportunity to comment on Australia’s National Human Rights Action Plan exposure draft (‘the draft Action Plan’).
The Government’s commitment to developing an Action Plan is welcomed and demonstrates its willingness to improve both the protection and promotion of human rights in Australia.
The draft Action Plan is a key part of the Government’s Australian Human Rights Framework and as such it is essential that the Action Plan be a comprehensive document that includes meaningful future actions that are specific and targeted, together with appropriate indicators and benchmarks and an effective process of monitoring and evaluation.
As WLSV is a community legal centre that specialises in issues arising from violence against women and relationship breakdown our submission will focus on the priority areas of access to justice and freedom from violence for women in the draft Action Plan. We have included suggestions for specific items in the draft Action Plan as well as improved performance indicators. Appendix 1 includes a summary of our recommendations.
Women’s Legal Service Victoria
WLSV, established in 1981, is a state-wide not for profit organisation providing free confidential legal information, advice, referral and representation to women in Victoria. Our principal areas of work are family law, family violence intervention orders and victims of crime compensation.
In addition to providing legal services to women, WLSV also ensures that clients’ experiences inform the development of legal policy and legislation by participating in law reform activities including writing submissions and sitting on various stakeholder advisory reference groups and committees with the government and other organisations.
WLSV develops and implements preventative family violence programs through education, training and professional development in these areas of law to non-government and government organisations including; police, lawyers, registrars, barristers, social workers and other professional groups and community organisations.
Draft Action Plan
Women
Freedom from Violence
Male violence against women is a fundamental violation of the human rights of women. It is a form of discrimination that seriously inhibits women’s ability to enjoy a range of rights and freedoms on the same basis as men.[1]
According to the Australian Bureau of Statistics, 40% of women have experienced violence since the age of 15 and approximately one woman is killed every week by a current or former partner, often after a history of violence.[2]
It is well established that family violence has a significant impact on women being able to realize their right to housing, health and economic security. Two thirds of people in Victoria seeking homelessness support are women principally because of family violence.[3] Family violence is also the highest preventable cause of death, disability and illness for women aged 15-44 years.[4]
CEDAW General Recommendation No. 19 sets out State parties’ obligations in relation to gender based violence as follows:
(t) States parties should take all legal and other measures that are necessary to provide effective protection of women against gender-based violence, including, inter alia:
(i) Effective legal measures, including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence, including inter alia violence and abuse in the family, sexual assault and sexual harassment in the workplace;
(ii) Preventive measures, including public information and education programmes to change attitudes concerning the roles and status of men and women;
(iii) Protective measures, including refuges, counselling, rehabilitation and support services for women who are the victims of violence or who are at risk of violence;
It is important that the draft Action Plan include action items that have a meaningful impact on ensuring that women live free from male violence.
National Plan to Reduce Violence Against Women and their Children (‘the National Plan’)
The Commonwealth Government’s National Plan is a coordinated and strategic response to addressing male violence against women in Australia and the Government should be commended on its commitment to the National Plan.
There are several key areas for implementation of the National Plan:
· The establishment of a tri-partite National Plan Implementation Panel to advise on the development and implementation of the National Plan.
· The establishment of working groups to sit under the Implementation Panel comprising of members from government and non-government representatives who have specialist expertise.
· Creation of a National Implementation Plan to set out how Government will achieve the targets set out in the National Plan.
· Jurisdictional Implementation Plans for each jurisdiction to report on its actions.
· The establishment of the National Centre of Excellence to bring together existing research as well as undertake new research under an agreed national research agenda.
· The creation of a national data collection and reporting framework.
The National Plan states that “all governments will work together to develop a national implementation plan within four months of COAG endorsement of the National Plan”. It is of concern that this is yet to be produced despite the first three year action plan (2010 – 2013) being on foot for two of the three years of the plan.
The failure to implement the National Plan was highlighted by the United Nations Periodical Review for Australia conducted in 2011, which recommended that Australia take steps, in partnership with State, Territory and Local Governments to further advance and accelerate the implementation of the National Plan.[5]
We submit that the Commonwealth Government is primarily responsible for taking the lead on this issue and should be working closely with other State and Territory Governments to fulfil its commitment to implementation of the National Plan. As such we would suggest that further detail in the draft Action Plan be provided as follows:
Item #: The Australian Government, together with State and Territory Governments, will establish a tri-partite National Plan Implementation Panel to advise on the development and implementation of the National Plan.
Item #: The Australian Government, together with State and Territory Governments, will establish working groups to provide support to the Implementation Panel and provide expert advice to assist in the implementation of the National Plan.
Item #: The Australian Government, together with State and Territory Governments, will draw up a National Implementation Plan.
Item #: State and Territory Governments commit to drafting Jurisdictional Implementation Plans.
Indicators: A National Plan that is fully implemented within the time frames provided in the National Plan.
Data collection (both quantitative and qualitative) is a key part of monitoring and evaluation and is essential in assessing Australia’s compliance with its human rights obligations. The National Plan commits to the establishment of a National Centre for Excellence to bring together existing research and to undertake new research as well as the creation of a national data collection and reporting framework. Given the importance of this aspect of the National Plan to Australia’s human rights obligations, we recommend the following action items be included:
Item #: The Australian Government will establish a National Centre for Excellence to bring together existing research as well as undertake new research under an agreed national research agenda.
Item #: The Australian Government will work with State and Territory Governments to create a national data collection and reporting framework.
Indicators: A broad range of qualitative and quantitative data is collected and stored so that it provides a basis for comprehensive monitoring and evaluation of Australia’s compliance with its human rights obligations.
Legislation criminalising violent conduct and sexual assault
We are somewhat concerned with the wording of item 101. The use of the word “retain” suggests that there is some threat to criminal legislation or that this could be interpreted as State and Territory Governments making a commitment not to repeal criminal laws such as rape, sexual assault and other sexual offences. Clearly, this is not what is intended by this item.
Criminal laws that protect women from violence are well established in each State and Territory. There has been significant improvement to these laws over a long period of time. There is further improvement that can be undertaken in the criminal justice system in the way that sexual offences are prosecuted, addressing ways of reducing appeals & retrials, as well improved responses to victims.
Whilst we appreciate that criminal law is largely a State matter, there are practical, broad commitments that can be included in the draft Action Plan to reflect Australia’s ongoing recognition of the need to take proactive steps to realise women’s right to live free from male violence.
The Australian Law Reform Commission and New South Wales Law Reform Commission Final Report on Family Violence – A National Legal Response (‘the ALRC Family Violence Report’) recommended reform of sexual assault and rape offences in State and Territory jurisdictions.
We would recommend the following action items be included:
Item #: State and Territory Governments will reform sexual offence laws in line with the recommendations of the ALRC/NSWLRC Final Report on Family Violence – A National Legal Response.
Indicators: Sexual offence laws across States and Territories are consistent, effective, fair and accessible.
Item #: State and Territory Governments commit to improving the response of the criminal justice system to women who have been victims of sexual offences.
Indicators: The criminal justice systems across States and Territories recognise and respond effectively to the needs of victims of sexual offences.
Item #: The Standing Council of Law and Justice will develop national best practice guidelines for practice and procedure in the investigation and prosecution of sexual offences in line with the recommendations of the ALRC/NSWLRC Final Report on Family Violence – A National Legal Response.
Indicators: The creation of national best practice guidelines in the investigation and prosecution of sexual offences.
Family violence and family law
Item 106 of the draft Action Plan flags that Governments will respond to the ALRC Family Violence Report to achieve a more coordinated response to family violence. Item 106, in its current form, does not articulate a clear commitment of the Commonwealth Government to implementing the recommendations of the ALRC Family Violence Report.
The Commonwealth Government has demonstrated a commitment to improving the outcomes for women and children who have experienced family violence in family law proceedings. The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 is an important first step in implementing the recommendations of a number of reports (commissioned by the Government) to improve the response to family violence in a family law context. The substantive amendments will come into effect in June 2012.
Following this, it will be important that the impact of the amendments are closely monitored to ensure that the amendments are achieving the objectives of prioritising the safety of children and improving the responsiveness of the Family Court/Federal Magistrates’ Court to allegations of family violence and sexual abuse in family law proceedings. As such, we suggest the following action item be included in the draft Action Plan:
Item #: The Australian Government commits to undertaking a review of the impact of the amendments in the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 with the view to implementing further legislative and non-legislative measures, if necessary, to prioritise the safety of children and improve responsiveness to allegations of family violence and sexual abuse.
Indicators: Greater responsiveness by the Family Court/Federal Magistrates’ Court to allegations of family violence and sexual abuse.
We have serious concerns for women in family law proceedings being cross-examined by self represented litigants (namely their ex partners and spouses) who have perpetrated violence against them. There are instances where women who have been raped, sexually assaulted or subject to serious acts of violence by an ex partner or spouse have been exposed to cross-examination in family law proceedings by the perpetrator of that violence.
There is clearly a compelling need to ensure that women who have been victims of violence are not further traumatised and abused in court proceedings. There are many state jurisdictions that include ‘protected witness’ provisions that ensure that such cross-examination cannot occur. For example in the Victorian Criminal Procedure Act 2009[6] and the Family Violence Protection Act 2008[7] a protected witness cannot be directly cross-examined by a self-represented litigant. Instead, the court in those circumstances has the power to order that Victoria Legal Aid provide legal representation to the self represented litigant for the purposes of cross-examination. We would consider that in family law proceedings, similar provisions would be appropriate and would reflect the Government’s recognition of the seriousness of family violence in family law matters. We would suggest the following action item in the draft Action Plan:
Item #: The Australian Government commits to amending the Family Law Act 1975 to include legislative protections for vulnerable witnesses and their family members in family law proceedings.
Indicator: Vulnerable witnesses and their family members will no longer be subject to cross-examination by self represented litigants in family law proceedings.
The ALRC Family Violence Report identified a number of key recommendations around improving legal frameworks and legal practice in the context of family violence and family law.
One of the key recommendations of the ALRC’s Family Violence Report was the need to develop a common interpretative framework including a consistent definition of family violence across the Family Law Act and state and territory legislation. The more recent report of the ALRC Family Violence and Commonwealth Laws – Improving Legal Frameworks (ALRC Report 117) added to this with its recommendation that the Commonwealth Government should amend the following Commonwealth legislation to include a consistent definition of family violence:
· Social Security Act 1991 (Cth);
· Social Security (Administration Act) 1999 (Cth);
· Child Support (Assessment) Act 1989 (Cth);
· Child Support (Registration and Collection) Act 1988 (Cth);
· A New Tax System (Family Assistance) Act 1999 (Cth);
· A New Tax System (Family Assistance) (Administration) Act 1999 (Cth); and