Australasian Law Reform Agencies Conference
Sex Discrimination
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Domestic and family violence and human rights
We all have a right to live our lives free from violence, especially in our relationships, our families and in our homes.
Domestic and family violence, is a fundamental human rights issue faced by so many people and with grave repercussions for children, families and communities.
The law and the legal fraternity has a critical role to play in preventing and protecting people from domestic and family violence.
Internationally, violence against women has been described as a pandemic affecting all countries. 1Worldwide, 35 per cent of women have experienced either physical and/or sexual intimate partner violence or non-partner sexual violence.2
One in three women globally, will experience violence against women in their lifetime. Indeed, there are more women living in an intimate relationship characterised by violence than malnourished people across the globe (960 million).
Violence against women continues to be one of the most prevalent human rights abuses in Australia, and around the world.
In Australia, domestic and family violence is predominantly experienced by women – with one in three women have experienced physical violence since the age of 15 and one in five have experienced sexual violence since the age of 15.3
Furthermore, one in four women have experienced violence by an intimate partner with more than one woman a week murdered by her intimate partner4 in 2015.
Almost 1.5 million women have lived in an intimate partner relationship characterised by physical or sexual violence (since the age of 15 years).5
Domestic and family violence is predominantly experienced by women with 17% of women have experienced violence from a current or former partner since the age of 18 (compared to 5.3% of men).6
Women (62%) were more likely than men (8.4%) to have experienced physical assault by a male in their home.7
Aboriginal and Torres Strait Islander women are 45 times more likely to be victims of domestic and family violence8 and 35 times more likely to be hospitalised as a result of violence-related assault than non-Indigenous women in Australia.9
Costs of violence
In 2009 the cost of violence against women and their children to the Australian economy was estimated at $13.6 billion10. Almost half of this figure (48 per cent) was attributed to the pain, suffering and premature mortality rates experienced by victims and survivors of violence. 11The cost to the Australian economy is expected to rise to $15.6 billion by 2021, and it is anticipated that employers will bear $456 million of this cost.12
Domestic and family violence is a hidden issue
Even though it is so widespread, in Australia, domestic and family violence continues to be largely hidden from the public eye.
It occurs out of public view, behind closed doors.
The Commission has welcomed the efforts of Rosie Batty as Australian of the Year in raising domestic and family violence onto our national agenda and vocally bringing this issue into the public domain.
We look forward to the recently appointed Australian Year of the Year for 2016, the former Chief of Army, Mr David Morrison, building on the momentum to take this forward.
Until this issue is brought out into the open – efforts to prevent and eliminate it and efforts to ensure its victims receive justice, remain limited.
Domestic and family violence – a human rights issue
Gender based violence is both a cause and consequence of gender inequality, and has been recognised as a form of discrimination, on the basis of sex and gender, under Article 1 of the Convention on the Elimination of All forms of Discrimination against Women. This form of discrimination seriously inhibits women’s ability to enjoy and exercise their human rights and fundamental freedoms.13
The United Nations Declaration on the Elimination of Violence against Women defines violence against women as ‘any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life’.14
Under international human rights law, it is well established that domestic and family violence is a violation of human rights with grave and far-reaching repercussions for victims, survivors and their children.
Domestic and family violence affects well-being and quality of life, but it can also impact on other rights, such as the right to education, housing, employment and the right to health.
As a human rights issue, it is incumbent on governments to exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, including acts perpetrated by private persons, and to provide access to just and effective remedies and specialised assistance to victims.15
Gender inequality lies at the heart of violence against women, and domestic and family violence specifically.
The United Nations General Assembly, in its 1993 Declaration on the Elimination of Violence Against Women, noted that this violence is a manifestation of historically unequal power relations between men and women.
Violence against women and girls is rooted in gender-based discrimination and social norms and gender stereotypes that perpetuate such violence.16
Hence achieving gender equality is a key goal in the efforts to prevent violence against women.
Additional factors such as intersectional discrimination, poverty, poor rule of law, alcohol and drugs, access to firearms or weapons are all contributing factors or risk factors for domestic and family violence.
As was recognised in the recently adopted Sustainable Development Goals, preventing and eliminating domestic and family violence and other forms of violence against women was recognised as being central to achieving development at the national and global levels. Violence against women is a significant barrier to women’s participation and inhibitor to development and addressing violence against women is central to the achievement of the SDGs.
The National Plan to reduce violence against women and their children (2010-2022) recognises the right to live safe and free from violence and this understanding of violence against women as a human rights issue should continue to inform the implementation of the National Plan.
Australia’s performance
At the Committee of Elimination of Discrimination against Women’s review of Australia in 2010, the Committee’s concluding observations identified violence against women as a critical area of concern17. The Committee noted with concern the unacceptably high levels of violence against women in Australia, and the lack of federal legislation on domestic and family violence. The Committee recommended timely implementation and funding of the National Action Plan to Reduce Violence against Women and their Children, including a mechanism for independent monitoring.18
At Australia’s Universal Periodic Review (UPR) in January 2011, a number of countries called for the implementation of a national plan to combat violence against women, including an independent monitoring and evaluation mechanism for the Plan.19
There were a range of comments made on Australia’s performance in addressing and preventing domestic and family violence in the course of the Australia’s review under the second cycle of the UPR, in 2015. We are currently awaiting the Australia’s Government’s response to these comments.
Role of the Commission
The role of the Australian Human Rights Commission is to see that human rights and fundamental freedoms are understood and respected in law, policy and practice.
The Commission has prioritised the issue of violence, harassment and bullying as human rights issues that profoundly affect the lives of many people in Australia.
As part of our work in this area, the Commission engages with governments at the national and state level to encourage a coordinated policy and legal response to violence against women. We consult broadly with the service sector to identify needs and advocate for support to meet these. We also contribute to the monitoring of the nation’s ‘zero tolerance’ approach to gender-based violence.
While there are a number of areas in which greater attention is needed to address and ultimately prevent domestic and family violence – including addressing stereotypes and attitudes that perpetuate gender inequality; increasing funding and resources for specialist support and response services, including legal services and safe accommodation services - the Commission has focused on specific areas such as:
- working with business to promote safe workplaces and increase understanding of domestic and family violence as a workplace issue
- law reform to recognise domestic and family violence as a protected attribute under anti-discrimination laws
- improving access to justice mechanisms for addressing domestic and family violence.
Domestic and family violence as a workplace issue
More specifically in relation to domestic and family violence the Commission has been engaging on the issues of domestic and family violence is a workplace issue.
When an employee is living with domestic and family violence, there are often very real costs and negative impacts that flow to the workplace.
Within the population of women who have experienced domestic and family violence, or are currently experiencing violence, the Australian Bureau of Statistics estimates that between 55% and 70% are currently in the workforce20 – that is, approximately 800,000 women, or around one in six female workers. This means that a significant number of Australian workplaces will be impacted by women’s experiences of domestic and family violence.
Both men and women were unlikely to have taken time off work in the 12 months after their most recent incident of physical assault by a male. Only 8.6% of men and 14% of women had taken time off work in the 12 months after their most recent incident of physical assault by a male.21
Nearly one third of the National Domestic Violence and the Workplace Survey respondents had personally experienced domestic and family violence, of which nearly half reported that the violence affected their capacity to get to work. 19% of respondents who experienced domestic and family violence in the last 12 months reported that the violence continued at the workplace. 45% of respondents who experienced domestic and family violence in the last 12 months had discussed the violence with someone at work – almost half of these had disclosed to their manager/supervisor.22
Some common costs and impacts include decreased staff performance and productivity, increased staff turnover and absenteeism and negative impact on the organisation’s reputation and image.23
The Commission has been working with businesses and organisations on what they can do to support their employees experiencing domestic and family violence.
Workplaces can play a positive role by providing safe and supportive environments for their employees, particularly those employees who are experiencing violence. This can result in strong benefits for the employer, including higher retention rates, higher staff morale, and higher health outcomes for their employees.
There are a range of actions a workplace can take to ensure that they are providing adequate support for victims and survivors of domestic or family violence. This can include:
- the role of leaders sending a clear message to their employees that domestic and family violence is an issue that affects the workplace
- encouraging bystanders should stand up against violence in the workplace bystanders should stand up against violence in the workplace
- develop policies for safe work places, free from harassment and bullying, which also deal with employees who perpetrate violence in the workplace.
A very effective strategy has been to include in enterprise agreements or awards, dedicated paid leave for women experiencing domestic and family violence.
As of 2013, over one million Australian workers are able to avail themselves of leave and other protections made available through domestic and family violence clauses in their agreement or award conditions.
It can also be important to ensure managers receive training in developing a safety plan for women.
Domestic and family violence as a protected attribute in anti-discrimination laws
The Commission has also advocated for domestic and family violence to be recognised as an attribute in anti-discrimination legislation.
One repercussion of domestic and family violence in Australia is discrimination. Victims and survivors may be discriminated against because they either have been, or are currently, in a violent domestic or family situation. Discrimination against victims and survivors occurs in all areas of public life.
The majority of research undertaken concerns the workplace, but there is also evidence women who are victims or survivors of domestic or family violence experience discrimination in seeking housing.24
Workplace discrimination as a consequence of domestic and family violence takes many forms.
Research suggests that it is common for victims and survivors to be denied leave or flexible work arrangements to attend to violence-related matters; have their employment terminated for violence-related reasons; and be transferred or demoted for reasons related to violence.25
The Commission has called for the introduction of a new ground of discrimination concerning domestic and family violence.26
The introduction of a legal prohibition would help to counter the individual and systemic implications of discrimination in education, housing, employment and other areas.
Having domestic/family violence as a new protected attribute in anti-discrimination legislation can provide another avenue of protection for victims and survivors who experience discrimination, as well as lead to improved measures for addressing domestic/family violence.
Access to justice
Central to the agenda of preventing and eliminating violence against women, is strengthening the access to justice for victims of domestic and family violence.
A Coronial approach to domestic and family violence homicides
A critical component of addressing domestic and family violence has been reporting upon its prevalence in the most extreme cases of homicides, and acting upon the advice from experts who look closely at these deaths, including coroners.
Available data on domestic and family violence deaths indicates that in 2015 there were approximately two deaths a week but this data is not entirely reliable. Much of it is sourced from media reports and NGOs who want to bring attention to this issue. We still do not have a standardised definition of what constitutes a domestic and family violence death across Australia’s jurisdictions. This is why I commenced a project in 2015 to standardise reporting on domestic and family violence deaths across Australian jurisdictions. The project’s stakeholders include Commonwealth, State and Territory Ministers; Coroners and Family Violence Death Review Teams. We are currently working on a final report for this project.
As part of the project, we aim to redress the current gaps in data collection by working towards coronial data collections in Tasmania and the Northern Territory – jurisdictions that are currently without the domestic violence death review function. Through this project we hope to complete a national picture on domestic and family violence deaths that will show where the patterns of deaths occur, where the system is failing the most vulnerable, and where resources and policies need to be targeted.
A further role for this project is to raise awareness about the need to record, monitor and make recommendations about family violence deaths that are relevant to the Commonwealth jurisdiction. There is no Commonwealth coroner and so there is a need to monitor state and territory coronial recommendations directed to Commonwealth agencies such as the Family Court and Centrelink. Currently, there is no mechanism to monitor the implementation of these recommendations.
The National Plan to Reduce Violence against Women and their Children 2010-2022 identifies the need to enhance review processes and drive improvements to Commonwealth, state and territory systems [so that they can] work together to identify and respond to women experiencing violence and, ultimately, prevent domestic and family violence homicides’.[i] I hope this project will contribute to this aim.
Access to legal services
In its submission to the second cycle of the UPR for Australia in 2015, the Commission noted that the prevalence of domestic and family violence, sexual assault, sexual harassment and community attitudes about violence against women have not substantially improved.
The Commission expressed concern at the under-resourcing of crisis and support services and the inadequate levels of support available for women in rural and remote areas, women from culturally and linguistically diverse backgrounds, Aboriginal and Torres Strait Islander women, women with disabilities, and lesbian, trans and intersex women.27
The Commission recommended that implementation of the National Plan to Reduce Violence against Women and their Children reflect the diversity of women, and include adequate, sustained funding for programs and services and independent monitoring and evaluation.
In particular, there is a need to ensure that legal services, specifically - community legal centres, women’s legal centres, family violence prevention legal services, Aboriginal legal services and legal aid - are adequately funded to meet the legal needs of those experiencing domestic and family violence.
In recent times, we have seen increases in reporting of domestic and family violence and demands on legal services for domestic and family violence.28
There is a need for adequate and sustainable funding for specialist women’s services (including community legal centres); and community controlled organisations such as Family Violence Prevention Legal Services in order to respond to increasing demand on services that results in part from an increased awareness about domestic and family violence.
Without adequate resourcing of legal services to meet the legal needs of those reporting, it will be difficult to ensure people’s access to justice.
Conclusion
The Commission’s work in this area is one small part of a much bigger effort to address one of the world’s most critical human rights issues.
To really make a real change in the lives of women, to ensure we can live lives free from such violence, will require an all of government, all of community and all of business effort. It will require a concerted and sustained effort to take a stand, to achieve gender equality and prevent gendered violence.
1 UN Women, ‘SDG 5: Achieve gender equality and empower all women and girls’. http://www.unwomen.org/en/news/in-focus/women-and-the-sdgs/sdg-5-gender…
2 World Health Organization, Global and Regional Estimates of Violence against Women: Prevalence and health effects of intimate partner violence and non-partner sexual violence (2013), p. 2.
3 Australian Bureau of Statistics, Personal Safety Survey 2012 (2013). At: http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/4906.0Main%20Fea…) (viewed 20 November 2013).
4 ANROWS, Horizons: Research Report, ‘Violence against women: Additional analysis of the Australian Bureau of Statistics’ Personal Safety Survey 2012’, October 2015. At http://anrows.org.au/publications/horizons/PSS (viewed 27 October 2015).
5 http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/4906.0Chapter7002012
6 Australian Bureau of Statistics, Personal Safety Survey 2012 (2013). At: http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/4906.0Main%20Fea…) (viewed 20 November 2013).
7 Australian Bureau of Statistics, Personal Safety Survey 2012 (2013). At: http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/4906.0Main%20Fea…) (viewed 20 November 2013).
8 C Cunneen, ‘Preventing Violence against Indigenous Women through Programs which Target Men’, University of New South Wales Law Journal, (2005), p242.
9 Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage: Key Indicators (2009), p 26. At www.pc.gov.au/gsp/reports/indigenous/keyindicators2009 (viewed 29 March 2012).
10 National Council to Reduce Violence against Women and their Children, The Cost of Violence against Women and their Children (2009). At: https://www.dss.gov.au/sites/default/files/documents/05_2012/vawc_econo… (viewed 27 July 2015).
11 National Council to Reduce Violence against Women and their Children, The Cost of Violence against Women and their Children (2009). At: https://www.dss.gov.au/sites/default/files/documents/05_2012/vawc_econo… (viewed 27 July 2015).
12 National Council to Reduce Violence against Women and their Children, The Cost of Violence against Women and their Children (2009). At: https://www.dss.gov.au/sites/default/files/documents/05_2012/vawc_econo… (viewed 27 July 2015).
13 It has been recognised that domestic and family violence violates a wide range of human rights and fundamental freedoms, including the rights to life, not to be subject to torture or to cruel, inhuman or degrading treatment or punishment, equal protection according to humanitarian norms in time of international or internal armed conflict, liberty and security of person, equal protection under the law, equality in the family, the highest standard attainable of physical and mental health, and right to just and favourable conditions of work. See CEDAW Committee, General Recommendation No. 19: Violence against Women, UN Doc. A/47/38 (1992), para 7.
14 United Nations, Declaration on the Elimination of Violence against Women, UN Doc A/Res/48/104, (1993), art 1.
15 CEDAW Committee, General Recommendation No. 19: Violence against Women, UN Doc. A/47/38 (1992), para 9.
16 UN Women, ‘Focusing on Prevention to Stop the Violence’, http://www.unwomen.org/en/what-we-do/ending-violence-against-women/prev…
17 Committee on the Elimination of Discrimination against Women, Concluding Observations of the Committee on the Elimination of Discrimination against Women: Australia (2010), pp 5–6. At http://www2.ohchr.org/english/bodies/cedaw/cedaws46.htm (viewed 11 February 2013).
18 Committee on the Elimination of Discrimination against Women, above, para 29.
19 Human Rights Council, Draft report of the Working Group on the Universal Periodic Review: Australia, pp17–18. At http://www.un.org.au/Universal-Periodic-Review-news298.aspx (viewed 6 February 2012).
20 Australian Bureau of Statistics, Personal Safety, Australia, 2005 (Reissue), Cat. No. 4906.0, 35. At: www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4906.0Main+Features12005%20(Rei… (viewed 12 October 2011).
21 Australian Bureau of Statistics, Personal Safety Survey 2012 (2013). At: http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/4906.0Main%20Fea…) (viewed 20 November 2013).
22 Australian Domestic & Family Violence Clearinghouse, Key Findings – National Domestic Violence and the Workplace Survey (2011). At http://www.dvandwork.unsw.edu.au/research (viewed 20 November 2013).
23 Workplaces respond to domestic and sexual violence: A National Resource Centre, ‘Impacts of violence on the workplace’. At http://www.workplacesrespond.org/learn/the-facts/impact-of-workplace-vi… (viewed 14 July 2014); Adrienne Cruz & Sabine Klinger, Gender-
Based Violence in the World of Work: Overview and Selected Bibliography, International Labour Office, Working Paper 3/2011 (2011), pp 13 and 15.
24 Donna Chung et al, Home Safe Home: the Link Between Domestic and Family Violence and Women’s Homelessness (2000). At: http://www.fahcsia.gov.au/our-responsibilities/housing-support/publicat… (viewed 7 October 2014).
25 See Australian Human Rights Commission, Submission to the Australian Law Reform Commission Inquiry into Family Violence and Commonwealth Laws: Employment and Superannuation (2011), para 47. At: http://www.humanrights.gov.au/legal/submissions/2011/20110421_family_vi… (viewed 7 October 2014).
26 See Australian Human Rights Commission, Submission to the Attorney-General’s Department on Consolidation of Commonwealth Discrimination Law - domestic and family violence (2012). At: http://www.humanrights.gov.au/legal/submissions/2012/20120123_consolida… (7 October 2014).
[i] Commonwealth Government, Department of Social Services’ Second Action Plan 2013-2016, Moving Ahead of the National Plan to Reduce Violence against Women and their Children 2010-2022, Action 19 - Reviewing domestic and family violence-related deaths. pp38-39. At https://www.dss.gov.au/sites/default/files/documents/09_2014/dss012_14_… (viewed 3 June 2015).
27 Australian Human Rights Commission, Australia’s Secoond universal Periodic review: Submission by the Australian Human Rights Commission under the Universal Periodic Review Process 2015 (2015). At https://www.humanrights.gov.au/sites/default/files/WEB_Australias_Secon… (viewed 22 Feb 2016).
28 ABC News, ‘Domestic violence support services record spike after ABC Hitting Home documentary airs’, 3 December 2015, http://www.abc.net.au/news/2015-12-03/surge-in-women-seeking-help-after…; Gold Coast Bulletin, ’30 per cent spike in domestic violence cases on Gold Coast’, 11 September 2015. http://www.goldcoastbulletin.com.au/news/crime-court/30-per-cent-spike-…; ACT News, ‘ACT’s domestic violence crisis service experiences holiday jump in demand’ 14 January 2016, http://www.canberratimes.com.au/act-news/acts-domestic-violence-crisis-…