Aboriginal Family Violence Prevention & Legal Service Victoria
(FVPLS Victoria)
Submission to
The Commonwealth Attorney General’s Department on
The National Human Rights Action Plan Baseline Study
1 September 2011
Introduction
As a key legal service provider for Aboriginal and Torres Strait Islander victims/survivors of family
violence and sexual assault, the Aboriginal Family Violence Prevention & Legal Service Victoria
(FVPLS Victoria) makes this submission to the Commonwealth Attorney General’s Department. We
welcome the opportunity to comment on Australia’s National Human Rights Action Plan Baseline
Study. Family violence rates in the Aboriginal and Torres Strait Islander communities nationally are
disproportionately high. We are primarily concerned with advancing the human rights, legal rights
and broader safety and well-being outcomes for this client group in legal services.
This submission is specifically focused on the experiences of Aboriginal and Torres Strait Islander
children and families, informed by on the ground experience of legal services in the in the national
FVPLS program. It calls for significant strategic strengthening of legal and associated services for
Aboriginal and Torres Strait Islander women and children nationally.
About FVPLS Victoria
FVPLS Victoria is one of fourteen FVPLSs funded by the Commonwealth Attorney General’s
Department to provide legal and support services to Aboriginal and Torres Strait Islander
victims/survivors1 of family violence and sexual assault in thirty-one rural and remote locations
across Australia. FVPLS Victoria was incorporated in October 2002. The national FVPLS program was
established in recognition of the gap in access to legal services for Aboriginal and Torres Strait
1
FVPLS Victoria also assists parents/carers of Aboriginal and Torres Strait Islander children.
1
Islander victims of family violence - predominantly Aboriginal and Torres Strait Islander women and
children.
Comments about the National Human Rights Action Plan Baseline Study
With respect to this reference to the Commonwealth Attorney General’s Department, we are
concerned that the Baseline Study does not present a comprehensive picture of the current status of
human rights for Aboriginal and Torres Strait Islander victims of family violence and sexual assault.
The Baseline Study refers to a number of key initiatives that contribute to access to justice for
Aboriginal and Torres Strait Islander communities. Many of these initiatives stem from the National
Indigenous Law and Justice Framework endorsed by all Australian governments. However, the
Baseline Study fails to identify current gaps in service delivery or capture the negative human rights
experiences of Aboriginal and Torres Strait Islander victims of family violence and sexual assault. It is
critical that these issues be addressed in the National Human Rights Action Plan.
This submission aims to:

Identify relevant statistics and other research on key human rights issues impacting
Aboriginal and Torres Strait Islander victims of family violence and sexual assault;

identify issues that National Action Plan should address to recognize current gaps in service
delivery within Aboriginal and Torres Strait Islander communities to assist victims of family
violence and sexual assault;

propose target action items and assign responsible entities to strengthen the Governments’
commitment to improving human rights and general disadvantage within these
communities;

propose target action items that will improve collaboration between Aboriginal and Torres
Strait Islander communities and the Government to address significant gaps in service
delivery for Aboriginal and Torres Strait Islander victims of family violence and sexual
assault; and

identify how proposed target action items will create positive outcomes to contribute to the
advancement of human rights.
2
Evidence of Human Rights Violations for Aboriginal and Torres Strait Islander
victims of Family Violence and Sexual Assault:
The Baseline Study fails to capture or document negative human rights abuses suffered by Aboriginal
and Torres Strait Islander victims of family violence. It simply states that “Aboriginal and Torres Strait
Islander women report higher levels of physical violence during their lifetime than do nonIndigenous women, and are much more likely to experience sexual violence and to sustain injury”.2
This is a clear oversight. The current statistical data indicates that:

Aboriginal & Torres Strait Islander women are 40 times more likely to be victims of family
violence compared with non-Indigenous women;3

Aboriginal & Torres Strait Islander women are 35.1 times more likely to be hospitalised due
to family violence than are non-Indigenous women;4

in 2008-09 Indigenous women were 31 times more likely to be hospitalized for injuries
caused by assault than non-Indigenous women;5

hospitalisation rates for family violence related assault were highest among Indigenous
females aged 25-34 years (15.9 per 1000);6

18.3 per cent of Indigenous women experience physical or threatened violence in the
previous 12 months compared with 7 per cent of non Indigenous women;7

Aboriginal women reported three times as many incidents of sexual violence compared with
non-Aboriginal violence as well as higher levels of physical violence;8

one in three Aboriginal people have a relative who is a victim, or are witness to an act of
interpersonal violence on a daily basis;9 and

a higher proportion of Indigenous people (19.5 per cent ) than non-Indigenous people (10.8
per cent) aged 18 years and over had been a victim of physical or threatened violence in the
previous 12 months.10
The Baseline Study also fails to acknowledge extensive consultative work already undertaken in the
area of family violence including a 2010 report by the Australian Law Reform Commission (ALRC) on
family violence.11
2
Commonwealth Attorney General’s Department, National Human Rights Action Plan Baseline Study
Consultation Draft (June 2011), 31.
3
Mouzous J & Makkai T, Women’s Experiences of Male Violence: Findings from the Australian Component of
the International Violence Against Women Survey (IVAWS). Canberra: Australian Institute of Criminology
Research and Public Policy Series, No. 56 (2004).
4
The Australian Productivity Commission, Overcoming Indigenous Disadvantage - Key Indicators (2009).
5
The Australian Productivity Commission, Overcoming Indigenous Disadvantage - Key Indicators (2011).
6
The Australian Productivity Commission (2009), above n 2.
7
Ibid.
8
Mouzous J & Makkai T, above n 5.
9
The Victorian Indigenous Family Violence Taskforce (2003).
10
The Australian Productivity Commission Australia (2011), above n 3.
3
The ALRC put forth a number of recommendations including the need to:




Provide cultural awareness training for police, prosecutors, the legal profession, judicial
officers, and victim referral and support services;
prioritizing the provision of, and access to, culturally appropriate victim support services
such as legal advice (including specialized legal advice and representation for Indigenous
women), counseling and other support services but ensuring victims are able to choose
whether to access cultural-specific services;
ensuring the provision of professional translating and interpreting services where required
and requested; and
introducing or re-introducing Indigenous-specific victim liaison, support and advocacy
positions throughout the legal system, including within the police, the courts and service
providers.
Other key findings are included in past reports by the Aboriginal and Torres Strait Islander Social
Justice Commissioner,12 submissions made to the United Nationals Convention on the Elimination of
Discrimination Against Women (CEDAW) Action Plan,13 concluding observations by the CEDAW
Committee on Australia14 and relevant recommendations made during Australia’s Universal Periodic
Review at the United Nations.15
In addition to these sources, in 2010 FVPLS Victoria released a three-part policy paper series that
provide a number of recommendations to advance law and justice outcomes for Aboriginal and
Torres Strait Islander victims of family violence and presents a comprehensive picture of policy
concerns.16
11
Australian Law Reform Commission Final Report: Family Violence – A National Legal Response (2010, ALRC
Report 114). The Australian Law Reform Commission (ALRC) published a comprehensive Final Report on Family
Violence – A National Legal Report which is a two-volume report with 187 recommendations for reform. There
was broad consultation within Indigenous communities and community-controlled organisations including
FVPLS Victoria. This inquiry had a particular focus on improvements to legal frameworks and laws in Australia.
12
The Social Justice Commissioner, Ending Family Violence and Abuse in Aboriginal and Torres Strait Islander
Communities: Key Issues 2006, 13. (2004).
13
YWCA Australia & Women’s Legal Services NSW, CEDAW Action Plan for Women in Australia – March 2010,
27. Action Plan Point 4: “A temporary measure must be introduced that specifically aims to increase the role of
Aboriginal and Torres Strait Islander women in public and political life. This should take the form of an annual
grant round made available to NGO-and community-led programs, and funded to the amount of 25 per cent of
the current funding allocated to government –led leadership programs for Aboriginal and Torres Strait Islander
women.”
14
UN Committee on the Elimination of all Forms of Discrimination against Women Concluding observations
CEDAW/C/SR.935 and 936, para 40.“In preparation for the 2012 CEDAW reporting period, Australian
governments must implement and adequately fund the National Plan to Reduce Violence against Women and
Children, including domestic and family violence specialist services that are culturally appropriate when
Aboriginal and Torres Strait Islander women, CALD women, rural and report women, LGBTIQ women, women
with disabilities and older women.”
15
Human Rights Council, Working group on the universal periodic review, Tenth session, Draft report of the
Working Group on the Universal Periodic Review, Australia, A/HRC/WG.6/10/L.8, 31 January 2011.
16
Aboriginal Family Violence Prevention & Legal Service Victoria, Strengthening law and justice outcomes for
Aboriginal and Torres Strait Islander victims of family violence and sexual assault and women and children:
National policy issues –a Victorian Perspective; Strengthening on the ground service provision for Aboriginal
and Torres Strait Islander victims/survivors of family violence and sexual assault in Victoria; Improving
4
Issues that the National Action Plan Should Consider:
Issue1:
The Commonwealth Government must take all steps within its capacity to comply with and enforce
international human rights instruments to which it is a signatory with respect to the human rights
and access to justice of Aboriginals and Torres Strait Islanders, paying particular attention to the
provisions relating to protecting and advancing the rights of Aboriginal and Torres Strait Islander
women and children.
Action:
 Consultation with Aboriginal and Torres Strait Islander women (in all communities
throughout Australia – urban, rural and remote) to allow special measures to be adopted
that address the significant ongoing disadvantage of Aboriginal women and children
 Adopt special measures that address the significant ongoing disadvantage of Aboriginal
women and children
Outcome: The Commonwealth Government will uphold its human rights obligations by
strengthening access to justice for Aboriginal and Torres Strait Islander women and children and
ensuring Aboriginal women have a voice and ownership of law and justice issues.
Responsibility: Commonwealth Attorney General’s Department.
The Government has demonstrated a greater commitment to human rights by signing onto the
relevant human rights instruments17designed protect women and children against violence and
stipulate respect for Indigenous cultural rights. However, the Government has failed to implement
measures to address disproportionate levels of violence against Aboriginal and Torres Strait Islander
women and to ensure legal equity, in line with the spirit of the above-mentioned human rights
instruments.
For example, the CEDAW Committee put forth a number of recommendations to implement special
measures to advance the human rights of Aboriginal and Torres Strait Islander women. The failure of
the Government to do the following is inconsistent with the spirit of CEDAW:
accessibility of the legal system for Aboriginal and Torres Strait Islander victims/survivors of family violence and
sexual assault), March 2010, available at http://www.fvpls.org/Paper1.pdf.
17
United Nations Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly 2 October
2007, A/RES/61/295; the Convention on the Elimination of All Forms of Discrimination against Women, opened
for signature 18 December 1979, [1983] ATS 9 (entered into force 27 August 1983); UN Declaration on the
Elimination of Violence Against Women, opened for signature 21 December 1965, (entered into force 4
January 1969) UN Doc A/RES/48/104; and the Optional Protocol; International Covenant on Civil and Political
Rights, opened for signature on 16 December 1966, [1980] ATS 23 (entered into force 23 March 1976);
International Convention on the Elimination of All forms of Racial Discrimination, opened for signature on 21
December 1965, (entered into force 4 January 1969). Note - CEDAW does not explicitly refer to Aboriginal and
Torres Strait Islander women, the CEDAW Committee has often raised issues relating to Aboriginal and Torres
Strait Islander (or other Indigenous women) in their recommendations.
5

Fund a comprehensive national Aboriginal and Torres Strait Islander Women’s Legal Service
Program;

fund FVPLSs for Aboriginal and Torres Strait Islander women in urban areas;

fund Aboriginal and Torres Strait Islander community-controlled women’s organisations and
FVPLSs for dedicated research, policy and law reform activity; and

support an Aboriginal and Torres Strait Islander women’s law and justice advocacy body.
Aboriginal and Torres Strait Islander women require practical measures to strengthen access to
justice and to be given a voice to have ownership of law and justice issues that affect the
community. The difficulty of pursuing and enforcing international human rights obligations is
intertwined with the significant barriers to access to justice for Aboriginal & Torres Strait Islander
people. It is critical that Aboriginal and Torres Strait Islander people inform the manner in which
Indigenous rights are incorporated nationally.
Issue 2:
The Commonwealth Government must demonstrate a commitment to and provide for a budgetary
allocation for culturally appropriate Aboriginal and Torres Strait Islander women’s legal services to
assist victims of sexual assault and family violence in addition to current funding for Aboriginal Legal
Services and Family Violence Units.
Action:
 Provide additional funding to the national FVPLS program for statewide services including
metropolitan areas should be provided through a joint Commonwealth/state funding
arrangement
 The Commonwealth Government should acknowledge the national FVPLS program as a
primary rather than supplementary provider of legal services to Aboriginal and Torres Strait
Islander victims/survivors of family violence and sexual assault and Aboriginal and Torres
Strait Islander women and children
 That consideration be given to establishing an Aboriginal and Torres Strait Islander women’s
legal services in every state and a national Aboriginal and Torres Strait Islander women’s
legal program in consultation with Aboriginal and Torres Strait Islander women
Outcome: Additional funding of the national FVPLS program will significantly strengthen the
program overall and result in more effective on-the-ground change in Aboriginal and Torres Strait
Islander communities.
Responsibility: Commonwealth Attorney General’s Department and Department of Justice through
COAG and SCAG.
There are serious inequities in the funding of the national FVPLS program as compared to other key
Aboriginal and Torres Strait Islander services. United Nations Human Rights Committees have urged
the Australian Government to adopt measures to improve the safety and human rights of Aboriginal
6
and Torres Strait Islander women however, current funding policy for Aboriginal and Torres Strait
Islander women’s legal programs do not reflect this.
Aboriginal and Torres Strait Islander women are more likely to seek assistance in relation to family
violence and sexual assault from a dedicated Aboriginal Legal Service – either through the Family
Violence & Prevention Legal Services or Aboriginal Legal Services. Our experience indicates
Aboriginal and Torres Strait Islander women often do not want to access Aboriginal Legal Services
for legal assistance in situations of family violence or sexual assault. Moreover, Aboriginal women
are often conflicted out of Aboriginal Legal Services because of their major criminal practice.18
Dedicated independent Aboriginal and Torres Strait Islander controlled legal services for Aboriginal
and Torres Strait Islander women and children are fundamental to improved safety and on-theground change. Aboriginal and Torres Strait Islander women require intensive support through
trusted and women/gender sensitive organisations to engage and sustain legal processes – and this
is the case in urban, rural and remote communities. Our specialized services are best placed to
determine the most strategic way to deliver effective local services. A more holistic and strategic
approach to funding Aboriginal and Torres Strait Islander family violence and sexual assault services
Australia-wide will benefit rural and remote communities as well as other un-serviced communities.
Culturally appropriate and trusted legal representation is also critical to Aboriginal and Torres Strait
Islander women engaging with and sustaining legal processes. A plethora of government and non
government reports and the experience of FVPLSs confirm that Aboriginal and Torres Strait Islander
women are not accessing mainstream services. Aboriginal and Torres Strait Islander women must be
given options as to whether they prefer to access a dedicated Aboriginal service or mainstream
services.
Aboriginal and Torres Strait Islander community controlled organisations are best placed to educate
and advocate both on the individual and systemic levels to achieve real on-the-ground change.
Aboriginal and Torres Strait Islander law and justice policy has focused more upon criminal justice
and Aboriginal and Torres Strait Islander men. Greater attention to women’s law and justice policy is
urgently required. Law and justice initiatives (including RCIADIC) have to date had significant focus
on the criminal justice area. The Aboriginal and Torres Strait Islander Social Justice Commissioner has
made specific comment in this regard.19
18
Note- this is a key factor to why a FVPLS national program was funded.
Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Addressing the needs of
Aboriginal and Torres Strait Islander peoples as victims of crime, Speech, Launch of White Ribbon Day, 18
19
7
Issue 3:
The national FVPLS program only funds services in identified rural and remote areas and fails to
address Australia-wide disadvantage, particularly service in urban communities.
Action: The national FVPLS program fund FVPLSs to service urban communities in addition to
existing funding to support regional rural/remote locations.
Outcome: A comprehensive and holistic strategy to address disadvantage of Aboriginal and Torres
Strait Islander women and children Australia in urban communities.
Responsibility: Commonwealth Attorney General’s Department.
The national FVPLS program only funds services in identified rural and remote areas and fails to
address Australia-wide disadvantage. Aboriginal and Torres Strait Islander women in urban areas are
being discriminated against as a result of Commonwealth Government funding policy for the FVPLS
program.20 This policy fragments and weakens responses to family violence and sexual assault in
Aboriginal and Torres Strait Islander communities. The national FVPLS program must be extended to
service urban communities.
Funding FVPLSs to service urban areas will significantly strengthen the national program overall.
There is significant diversity amongst Aboriginal and Torres Strait Islander communities across the
states and territories and to be effective, initiatives to address family violence and sexual assault
must fully acknowledge and address this diversity. These initiatives should be lead by Aboriginal and
Torres Strait Islander women at local levels. FVPLS Victoria’s model of a Melbourne head office
supporting regional offices in rural locations has proven effective and increased our capacity to
secure funding from other sources such as the Victorian Government and Victoria Legal Aid in order
service urban areas. It is encouraging that the Commonwealth Attorney General’s Department has
supported this model and implemented a similar model across the national FVPLS program. This
however does not address the need for the Commonwealth to fund service delivery of FVPLSs to
urban areas.
A comprehensive and holistic strategy to address disadvantage of Aboriginal and Torres Strait
Islander women and children Australia-wide that incorporates diversity is required. The question for
the Commonwealth should be – how to develop a program for the most effective family violence
and sexual assault services to Aboriginal and Torres Strait Islander communities in each state and
territory – not how to quarantine resources to areas of ‘highest relative need’.
November 2005. Available at:
www.humanrights.gov.au/speeches/social_justice/victims_of_crime_speech.html.
20
The Commonwealth Government is not upholding Article 15 of CEDAW in relation to equality before the law.
8
The Commonwealth Government’s refusal to fund dedicated Aboriginal and Torres Strait Islander
services in urban areas is also based on misconceptions about the nature of urban Aboriginal and
Torres Strait Islander communities. For example, in Victoria 48% of the Aboriginal and Torres Strait
Islander community live in metro Melbourne however, the Commonwealth will not fund FVPLS
Victoria for any urban work - despite established high demand for urban services. (FVPLS Victoria has
secured alternative limited term funding for urban services). Whilst Aboriginal Legal Services are
located in urban areas, this does not abrogate the need for FVPLS services or dedicated legal services
for Aboriginal and Torres Strait Islander women and children in urban areas – for reasons mentioned
above (conflict and lack of accessibility).
Issue 4:
That national FVPLS program or a national Aboriginal and Torres Strait Islander women’s legal
program be adequately resourced to provide comprehensive legal services for Aboriginal and Torres
Strait Islander women and children and victims of family violence and sexual assault, and that legal
casework guidelines within the program be expanded beyond family violence and sexual assault.
Action: That the state and Commonwealth governments ensure adequate resourcing of the FVPLS
national program to develop and maintain the necessary legal capacity and expertise to provide
comprehensive and integrated legal services in key legal areas – specifically family law, child
protection, family violence and victims assistance.
Outcome: FVPLSs have enhanced capacity to service Aboriginal & Torres Strait Islander clients.
Responsibility: Commonwealth Attorney General’s Department, Department of Justice & Legal Aid.
Given the unique and often complex nature of this area of legal work, including cultural
considerations, we recognize the importance of Aboriginal and Torres Strait Islander services
developing expertise in particular areas of law. This unique knowledge and experience informs and
strengthens the ability of FVPLSs to identify and advocate for necessary systemic change directed
toward improved Aboriginal and Torres Strait Islander access to legal services. For example, the
secondment of a family lawyer from Victoria Legal Aid to FVPLS Victoria has significantly informed
the position taken by the service in advocating improved Aboriginal and Torres Strait Islander
accessibility in the family law system. The funding of a child protection solicitor by the Victorian
Attorney General’s department has also increased our capacity to advocate and develop policy
positions for client’s in the area of child protection.
It is also important that lawyers employed by FVPLSs are able to assist a client with their range of
legal issues. Therefore, flexible funding arrangements with state and Commonwealth Governments
for legal work are also required. For example, a family lawyer must also be able to handle
9
corresponding child protection and family violence intervention order cases for the one client rather
than having to refer this to another lawyer internally or externally.
Issue 5:
That emergency housing options for Aboriginal and Torres Strait Islander women who experience
family violence be enhanced.
Action: That the Commonwealth Government, through relevant departments, increase funding for
emergency housing for Aboriginal and Torres Strait Islander women and children who experience
violence.
Outcome: Victims of family violence are ensured the right to adequate housing and safety from
violence.
Responsibility: Commonwealth Attorney General’s Department, Department of Justice, Department
of Human Services.
FVPLS Victoria has identified increasing difficulties for Aboriginal and Torres Strait Islander women
who experience family violence in accessing appropriate housing options in Victoria. A number of
human rights treaties to which Australia is a signatory ensure the right to adequate housing. In the
view of FVPLS Victoria, the Government is largely ignoring its obligations to provide adequate
housing, particularly for Aboriginal and Torres Strait Islander victims of family violence and sexual
assault who are experiencing crisis.
Issue 6:
That the Commonwealth Government urgently strengthen research, policy development and law
reform capacity in the area of Aboriginal and Torres Strait Islander women’s law and justice.
Action:
The following options should be considered:
a) Through the implementation of a national Aboriginal and Torres Strait Islander Women’s
Legal Service program, the funding of policy development/law reform capacity in each state
and territory with a national Aboriginal women’s law and advocacy body attached to the
national secretariat of the national Aboriginal Women’s Legal Service program or
b) The funding of a national Aboriginal and Torres Strait Islander women’s law and advocacy
body supported by funded policy development/law reform capacity in each state and
territory
c) The urgent funding of a national FVPLS advocacy or peak body, accompanied by the funding
of policy development/law reform positions within selected FVPLSs in each state and
territory
Outcome: Enhanced understanding of the underlying policy issues to inform strategic direction.
Responsibility: Commonwealth Attorney General’s Department.
10
The national FVPLS program must be funded for a peak body or secretariat to strengthen the
support base for the program, to maximize opportunity for shared learning and to provide a focus
for national policy issues which impact on Aboriginal and Torres Strait Islander victims of family
violence and Aboriginal and Torres Strait Islander women. In 2008, the Commonwealth Attorney
Generals Department engaged FVPLS Victoria to develop a strategic plan for the establishment of a
national Aboriginal and Torres Strait Islander women’s law and justice advocacy body. To date, the
Commonwealth has not acted on this proposal. Dedicated funding towards research, policy
development and law reform within the FVPLS program, as is the case with the Aboriginal Legal
Services, is critical and will greatly strengthen the voice of Aboriginal and Torres Strait Islander
victims and Aboriginal and Torres Strait Islander women and children.
FVPLSs in the states and territories must be funded for research, policy development and law reform
capacity which is fundamental to improved Aboriginal and Torres Strait Islander accessibility in the
legal system – e.g. improved engagement for victims/survivors of family violence and s sexual assault
with police and the courts .
Enhanced and equal participation in public and political life process is consistent with the spirit of
the human rights treaties to which Australia is a party including CEDAW & ICERD. Aboriginal and
Torres Strait Islander women require practical measures that strengthen their access to justice and
give them a voice and ownership of law and justice issues.
Lead by Aboriginal and Torres Strait Islander women nationally, the Commonwealth must
acknowledge the need for a strategic approach to law and justice policy for Aboriginal and Torres
Strait Islander women and children which incorporates a program of legal service provision (in which
family violence and sexual assault must be one priority).
FVPLS program nationally is not funded for research, policy development or law reform activity. It is
only through philanthropic funding that FVLPS Victoria is able to undertake this work and contribute
to this submission.
11