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Finance and Public Administration References Committee
05/11/2014
Domestic violence in Australia

ATMORE, Dr Chris, Senior Policy Adviser, Federation of Community Legal Centres

CHAIR: Welcome. Information on parliamentary privilege and the protection of witnesses in giving evidence to Senate committees has been provided to you. I invite you to make an opening statement.

Dr Atmore : The committee will be familiar with our submission, but I just want to underscore our main motivation for being here, which is that 20 of our member community legal centres around Victoria provide assistance in 29 magistrates courts, primarily for victims of family violence who are seeking intervention orders. We also provide other legal assistance related to family violence, including, subject to capacity, assistance related to inquests where someone has been murdered as a result of family violence. Family violence was our top legal problem last year and accounts for more than one in every three new cases in the sector across Victoria. Our family violence case load has increased by more than 80 per cent since 2008. We also do a vast amount of work in family violence community legal education, community development and policy law reform. This committee is just one of many examples of the kind of work that a number of our CLCs and the federation engage in.

I just want to say a little bit pulling out some of our points around the impact of the recent federal funding cuts on family violence services and the changes to Commonwealth funding agreements meaning that systemic advocacy is ruled out for those centres who receive Commonwealth funding. The funding cuts are, to put it slightly bluntly, a partial rescinding of the previous federal Attorney-General's grant to CLCs. Effectively CLCs lost about half of what they had originally been promised, so the last two years of funding—which goes to, I think, 2018—is no longer there. Fourteen community legal centres in Victoria have been substantively affected by those cuts. For seven of those CLCs, the cuts apply directly to front-line family violence services, and those cuts amount to the order of roughly $1 million. It is extremely unfortunate timing that those cuts have happened when they have. We know that there are further cuts in the offing. CLCs can never afford cuts to their front-line services, and particularly to family violence, given the massive increase in demand that we have seen over the last four or five years, which of course is a reflection of the success, to some extent, of the Victorian integrated response. It comes at a particularly difficult time for us.

I would also draw attention to the fact that one of our member centres, Aboriginal Family Violence Prevention and Legal Service, is currently struggling with the impact of cuts to the funding of those services and also because its funding future is currently uncertain. Given the high levels of violence that Aboriginal women and children, in particular, are subject to, and the extremely high death rates from family violence, quite frankly we are appalled. I just do not know how to put it more clearly than that.

On the systemic advocacy clause in the Commonwealth funding contracts, I guess the best way to talk about why we believe that is just so not the right way to proceed is to say that some of my work in the last few months has been with Rosie Batty. The committee may recall that I attended the hearing with Rosie in September. I do a number of different types of work with Rosie, including supporting her in the ongoing inquest into the death of her son, Luke. Also, perhaps even more importantly for this inquiry, Rosie and I do quite a lot of systemic advocacy together. We are visiting cabinet ministers. We are talking about systemic issues. We are raising them in the media. We are doing all that kind of work. If the federation were a Commonwealth funded organisation—we are actually not—I would not be able to do that work. Rosie could go to a number of other CLCs, possibly, to try and get that level of assistance, but a number of our CLCs are currently compromised by the Commonwealth funding clause. For example, the Women's Legal Service, which is one of our leading specialists in the area, receives Commonwealth funding. We are extremely concerned about that and we also, as does the Productivity Commission, regard it as an inefficient strategy because we know that systemic advocacy is very strongly linked to case work, community legal education and community development. As Rodney Vlaise was saying before, it is not really something that you can separate easily.

I did refer the committee in our submission particularly to the recommendations from the Australian Law Reform Commission and Law Reform Commission of New South Wales inquiries. We all know that many of those recommendations have yet to be implemented. We would see that as a really important first step for the Commonwealth government to return to those recommendations and actually start putting them into place in consultation with the relevant family violence specialists around the country.

One of the really important points that the commission made in its final report was that the fragmentation of the system has led to a fragmentation of practice. There is nothing like an inquest to sharpen your focus on systems, what works and what does not work, so I have been thinking about that quite a lot in the last two weeks. Relevant to this inquiry is that that fragmentation—pockets of good practice but more often pockets of bad practice or no practice—exists not only within jurisdictions and within individual systems like child protection, for example, but it also exists across states and territories. So as a federation we are grossly fragmented. We have huge gaps into which women and children fall currently. And at the pointy end of that it results in death but, as we know, there is also a massive cost in terms of violence more broadly.

I am blogging in my official role on the Luke Batty inquest and I have been looking at some theories of systems as a part of that. There is some interesting work done by a British professor of psychology named James Reason and he basically says that if we do not seek out and remove the properties within the system at large that lead to or increase the possibility of a death then we are not going to enhance safety across the board. I think that is the point we are at in Australia. He uses the metaphor of mosquitoes in a swamp. He says there will always be mosquitoes no matter what we do and the mosquitoes are human fallibility, essentially. He said the swamp is about the latent factors in the system that we can do something about—the procedures, the protocols, the shared understandings, the collaboration. So he concludes his work by saying we need to drain the swamp.

I would like to use the swamp metaphor to say that at times we have drained the swamp and have built some really good things in its place and the mosquitoes are gone but we are also really infested in other parts of the country and we need to take a systems approach to addressing that.

Senator MOORE: Your submission is very detailed and it covers many points. I am just going to talk about the Law Reform Commission reports. Those reports now are a couple of years old. They were highly proclaimed when they came out and everybody said how great they were. The first one was definitely linked to the national plan and the second one came in the middle of the transition. Has there been any feedback to the sector from the government or from the department about why they had not progressed? I am trying to find out, when it was actually in the plan, why that particular area was not progressed. A large number of submissions we received have referred to those reports so it is obviously an issue of import. Was there any discussion or feedback from the Office for Women, from the ministers or from the government about why that was not going ahead?

Dr Atmore : In relation to the recommendations?

Senator MOORE: Yes.

Dr Atmore : Not as far as I am aware.

Senator MOORE: In your professional capacity, that had not come up?

Dr Atmore : No.

Senator MOORE: So now we have the second plan. Talking with the department a couple of months ago—and I have got to reread the Hansard—I got the impression it kind of rolled over, so we will be following up on that.

One issue I want to take up with you, even though it has been raised with a few people, is the inquest and the specific recommendation in plan 1, which was about getting information about cause of death, process, and learning from policy. Why should we do that?

Dr Atmore : One of the reasons I started the blog is that a lot of people, including a lot of lawyers and journalists, do not really understand the functions of the coronial system. I have been doing my best in my limited capacity to address that. Essentially I think why inquests and family violence death reviews are so critical to the whole approach is that they come into play after the biggest failure you could ever see, which is the killing of a woman or child or sometimes a bystander. I think the Commonwealth has a critical role to play in leading the coordination of best practice family violence death reviews and associated inquests around the country. I think we are missing that opportunity.

Victoria has the oldest family violence death review, and the Federation has played a key role in the reference group for that death review—but the reference group has not met here for 10 months, and this is in a year when we have had some extremely high-profile killings. The problem is capacity. It has not been effectively resourced and it is not utilising all the specialist expertise that is out there and waiting to be tapped. So it is a missed opportunity in the same way that I think some of that work done through the ALRC and the New South Wales LRC has been wasted. It has been done—we have heard from experts, we have heard from victims, we have heard from direct services and yet, somehow, it just falls away. I think some of that is characteristic of the family violence system as a whole, that it is not joined up. Also, of course, we have the extra federal, state and territory divide to contend with.

Senator MOORE: Another committee I was on, looking at suicide in Australia, was talking about the same thing. It was put down to the fact that this was a state responsibility and the feds will have to work within whatever the COAG model will be in the new system—but there will have to be one. There had been limited progress in that area as well. It is in the same bucket. But, in terms of that one, not only is the general report, which includes that, acknowledged—it is quite a specific recommendation of the plan, apart from anything else. Has there been lobbying from the community, particularly the legal community, about the need for this to happen?

Dr Atmore : Specifically in relation to death reviews?

Senator MOORE: Yes.

Dr Atmore : Not so much the legal community. Until very recently no community organisation that I am aware of has been specifically funded to push these issues, so we have had to do it around the edges. We are hoping that this will change for us to some extent next year because of the new project. We did release a substantial issues paper a couple of years ago called 'Saving lives by joining up justice', which was more broadly looking at all the different coronial jurisdictions across Australia and what needed to happen to make them more effective. One of the key recommendations in that paper is also central to what we are saying about family violence death reviews—where the review does wrap around an inquest, agencies must be mandated to respond to coronial recommendations. At the moment that happens only in a few states across the board. The problem is that nobody monitors the implementation of those responses, either. So five years down the track we have no idea, even if there was a really good sounding response from, say, the Department of Human Services, no-one really has any idea about what has happened as a result and whether that has had any impact on future death prevention.

Senator WATERS: I will start off with the funding issue, which you have articulated quite well already in your submission. You outline the reduction in funding to community legal services of up to 26 per cent between 2013-4 and 2017-18, and you list a whole range of direct service impacts. What do you think that some of the impacts of these cuts will be in a day-to-day sense for women and children who are trying to escape from violence?

Dr Atmore : It means that fewer clients will receive a service. We already have a significant number of turnaways, because we have capacity issues more broadly. I have observed our lawyers in a number of our courts over a number of months to get a sense of the different conditions in different places because they vary quite a lot, including in terms of safety—for the lawyers as well—and I really think our lawyers on the front line as duty lawyers are the unsung heroes of the justice system. They are doing an incredible job under immense pressure. They could easily be seeing between 12 and 18 clients a day; by the time you allow for lunchtime, there are only five hours of court, really, in that day, and some of those cases are so complex.

One of the really important aspects of value, I think, in the service our lawyers provide is not just advising and informing the victims who come to them but also negotiating consent orders. So they are going back and forth between either the client and the respondent's lawyer or sometimes the respondent himself, which is obviously quite tricky for the lawyer, in order to try and negotiate an intervention order so that it does not have to go to a contested hearing. It is actually very cost and time efficient because the more that that can be done, mindful of women's safety and perpetrator accountability, the less often matters will then have to be set down again for a contested hearing involving costs on the court and greater cost to the system.

The problem with those cuts is that we know that, for example, some of our centres were intending to expand their services with that money to have more days in court or to offer advice to women who otherwise might not get access to it because they have to travel too far to get to a legal centre—so, as an outreach service. We know that a lot of those will be compromised, and that will have a direct impact on these women, who are then more likely to turn up to court not knowing what is happening and may not have sufficient time to see anybody or may not get through in the first place and therefore do not get help at all.

Senator WATERS: So all of those are front-line services?

Dr Atmore : Most definitely. They are all front-line service cuts. I know the federal Attorney-General has said that the cuts were to policy and law reform, but we actually consulted all the CLCs in Victoria that were subject to those cuts and all the family violence cuts are front-line services. There is no doubt about it.

Senator WATERS: Can you just remind me of those figures? You said seven of the 14 community legal centres have direct family violence services, and so all the cuts to those seven services are to front-line services?

Dr Atmore : They are front line.

Senator WATERS: Was that the $1 million figure that you mentioned earlier?

Dr Atmore : Yes, it is just under. We calculated when we wrote the submission that it was just under $1 million. We have subsequently re-surveyed our centres, the ones that provide family violence duty lawyer programs, to get a sense of what they would need to be able to operate at capacity, rather than not doing some of the things they do now, federal cuts or not. When you add the federal cuts to that, it is about $1.2 million that is needed. There has also been a recent law reform in Victoria which I can elaborate on if the committee would like, but essentially that has also created an additional impost on duty lawyers. It is going to mean that women turn up at a different point in the system, where duty lawyers do not usually act because they are concentrating on slightly later down the chain, at court. We have also calculated, and written to the state government pointing out, that that will probably require another $1.2 million to effectively assist those women. So we are really looking at $2.4 million a year.

Senator WATERS: Which was your point earlier—that, if you get in early, then you can avoid those expensive and time-consuming and often confronting court processes.

Dr Atmore : Yes, and that is not even starting to think about what money would be required in an ideal world. There are a number of our centres that would really like to be able to legally assist women even further back, with their initial application to the court, because that is often really confusing for women, particularly if they are from a non-English-speaking background or they have a cognitive disability or other issues.

The other thing that we would really like to do—and a number of centres that expressed enthusiasm for this but we are not funded to do so—is to run our own contests. At the moment, centres tend to brief private barristers to do that, because, again, the funding is really more for the earlier stages and, in terms of providing continuity of service for the woman, it makes more sense if she has the same place all the way through.

Senator WATERS: Yes, with someone who knows all of the back story. On that point about family law court reforms, I noticed you reference the ALRC report recommendations, including—and this was new to me, I confess:

… the creation of a National Family Violence Bench Book which provides guidance to judicial officers on family violence and sexual offences.

I have been asking some of the legal witnesses whether Family Court judges get training in domestic and family violence. I will ask you that as well. The answer has tended to be no—as far as people have been aware. Can you address that? Can you also talk about what the role of this bench book would be? Would it be a substitute for training or would it need to be complementary? Is anyone looking at adopting it?

Dr Atmore : My understanding is that it would be complementary. It is a recommendation that came out of the ALRC. We have a family violence bench book in Victoria now and it is a fabulous resource. It is available for anybody to have a look at. It is particularly used by our more excellent magistrates in family violence—everyone acknowledges that there is variability. It is used all the time. It has checklists of things they should think about when making decisions. Importantly, that checklist includes thinking about risk factors—what sort of order they should go through them.

Senator WATERS: Are you able to table a copy of that for our benefit?

Dr Atmore : Yes, I can provide the committee with a link.

Senator WATERS: Do any of the other courts have that? Have any of the other states adopted that approach?

Dr Atmore : Not as far as I am aware.

Senator WATERS: Has there been any evaluation in the roughly three years it has been used of its effectiveness and its success?

Dr Atmore : Again, not as far as I am aware. But, anecdotally, magistrates certainly find it very useful—when they do refer to it. That is the training element. One of the obstacles to creating a bench book goes back to the principles in the ALRC inquiry—seamlessness, fairness, effectiveness and accessibility. Part of the problem is that there are some common understandings about family violence across state and territory jurisdictions, but there is a lot of stuff which is different, which is what the ALRC looked at. A bench book is probably more helpful if at least the core is the same across jurisdictions—so that then you have cases they can follow or distinguish, depending on the jurisdiction.

Senator WATERS: The recommendation for restrictions on direct cross-examination of victims by alleged perpetrators—it seems that many of the state courts have adopted that but that the federal Family Court has not. Can you reflect on why that is and whether that should be reformed?

Dr Atmore : I think it partly goes back to the federal-state divide. I talk about this a bit in the submission. The understanding of family violence that underpins the Family Law Act has, in our view, improved somewhat as a result of various law reform changes. But it is still the case that, for example, the personnel in the family law system do not have any kind of systematic family violence risk assessment training. We have seen this in a number of cases.

Senator WATERS: Even though that is their jurisdiction?

Dr Atmore : Yes. We could talk for hours about the problems with the links between the Family Court and the state magistrates courts. Even a lot of magistrates are still confused about their power to suspend family law orders, for example—let alone lawyers and clients. You have a family law system that is not thinking 'risk assessment'. You could have, for example, a highly volatile situation where a woman has just been in a Family Court with the perpetrator, possibly having been cross-examined by him, and then she could come back to state court and all hell could possibly break loose—and nobody would know. There does not seem to be any way for personnel to inform the state court of the risks. That is something we think needs to be consistent across the board—that they have the same understanding and the same approach.

Senator WATERS: It seems as if there is some good scope for reform in that regard—hopefully reform that is not too controversial. You have spoken a little bit about the restrictions on advocacy, and we have had some other witnesses, both today and in other hearings, who have also talked about the importance of advocacy. Given your role as the peak community legal centre representative body here in Victoria, can you explain why advocacy is important, particularly in this arena?

Dr Atmore : Probably the best way to illustrate that currently is where the committee will be aware from today's hearing just what a strong community sector we have around family violence. One of the really important aspects of that strength is the collaboration among all the organisations. That is really only possible because we have been able to specialise and take up different aspects of the system and then work together with government to advance different reforms in both policy and law. From the Federation's perspective, systemic advocacy covers a whole range of areas. I am thinking of two or three examples that I have been involved in this year, and they all involve law reform and/or high-level policy discussions. One of them, for instance, is a new family violence taskforce that has just been convened by the chief magistrate. The Federation is a member of that. It has only just met for the first time, but it is going to be meeting fortnightly. One of the really exciting things about that is that it is basically a lot of key stakeholders in the justice system in Victoria all getting together to talk about how we can improve how we respond to family violence. It is the Chief Magistrate, us, No to Violence, Domestic Violence Victoria, the Victorian bar, the Law Institute—

Senator WATERS: Who drove that?

Dr Atmore : It was a combination of the Chief Magistrate and Caroline Counsel, who used to be president of the law institute and is from family law. So we are really excited by that. Systemic advocacy covers those kinds of things. I think that, if you are going to try to truly integrate a system, you have to be able to join up together even if you do not agree, and that is basically what we have agreed with the taskforce.

Other examples are law reform initiatives. Because systemic advocacy is pretty much all I do—I am a legal practitioner but in my current role that is not what I do—there is no way we would have been able to have the extensive input we were able to have into the Family Violence Protection Act, for example, which we were formally thanked for by the then Attorney-General, Rob Hulls. We have been able to have significant input into the sexual offences review which Victoria conducted recently, and again we were formally acknowledged by the current state Attorney-General.

We have been able to have input—even though we were only partially successful—into recent initiatives to change aspects of the family violence system, and part of being resourced to do systemic advocacy for us is that we have been able to play the specialist role because we can read legislation. With sexual offences, for example, which is a very complex review, a number of community organisations including the Centre Against Sexual Assault were throwing up their hands in horror because, even though there were some good things in it, they found it too technical and overwhelming. The federation was able to step in and take the lead on providing that expertise. It is really providing a missing piece of the puzzle in order to bring about effective and evidence based change, and you need to have systemic advocacy and a systemic lens. I am fortunate that, although I am a lawyer, I am also a social science academic originally, so I have that systems analysis. To me it just makes absolutely no sense that you would not fund that. Every time you make a systemic change you are helping thousands of individual clients, which may also mean that those clients never actually have to come to a front-line service, so it is cost effective as well as just.

Senator WATERS: Thank you very much.

Senator RICE: I want to get back to the issue of funding. You said that the need for the family violence services of the CLC is $1.2 million and up to $2.4 million. How does that compare with what the current funding is?

Dr Atmore : I would have to take that question on notice.

Senator RICE: Okay. It would be good to know what level of increase there is just to do that. Beyond that, you mentioned your ideal world. Have you done an analysis of how much it is to meet the demand given the increased reporting and the increased demands on the services? What would be needed? What is the level of funding that would be required to meet that demand?

Dr Atmore : We are working with the 2.4 per annum as our baseline. We have not gone further than that. I think the federation punches above its weight. We have something like 12 staff, quite a few of whom are part time and all of us are doing a number of different things. Even to get that sense of who needs what money was quite a data-gathering exercise in itself because CLCs are independent legal entities; we are not head office. With our peak advocacy, it usually means going out and trying to drill down into the experiences of our services on the ground. It is certainly something that we would like to do in the future to look at the wish list aspirations around family violence and what that would require.

Senator RICE: Have you attempted to do any analysis of the long-term economic benefits?

Dr Atmore : We would love to do that. We have talked about it quite a lot, including in our broader alliance about trying to cost out if we actually got some of these changes that we want. At the moment, all we have is the yardstick from the KPMG analysis that underpinned it and the cost to Victoria that flowed from that. We were hoping that the Productivity Commission inquiry into legal assistance services might look at some of that flow-on costing benefits. We had made that suggestion that they would be in a position to perhaps contract someone to undertake that. As far as I am aware, that has not been done, because it is a detailed exercise.

CHAIR: Thank you very much for appearing before the committee this morning. We greatly appreciate the time and effort you have put into your submission and for being here today.