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Consolidation of Commonwealth Discrimination law - domestic and family violence

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Consolidation of Commonwealth Discrimination law - domestic and family violence

Australian Human Rights Commission Supplementary Submission to the Attorney-General’s Department

23 January 2012

Table
of contents

1 Introduction

  1. The Australian Human Rights Commission makes this supplementary submission
    further to its submission on the Commonwealth discrimination laws, lodged in
    December 2011[1] (the principal
    submission).

  2. This submission responds specifically to question 9 of the Consolidation of
    Commonwealth Anti-discrimination Laws Discussion
    Paper:[2]  ‘Are the current
    protections against discrimination on the basis of these attributes
    appropriate?’  In answering question 9, the Commission provides
    supplementary information in support of its previous recommendation that the
    Government give favourable consideration to the introduction in a consolidated
    Commonwealth equality law of a new ground of discrimination on the basis of
    domestic and family violence.[3]  

2 Recommendations

  1. The Australian Human Rights Commission recommends that:

    1. a consolidated Commonwealth equality law prohibit discrimination on the
      ground of domestic and family violence.

    2. for the purposes of defining the ground of domestic and family violence, a
      consolidated Commonwealth equality law adopt a definition of domestic and family
      violence that is gender neutral and consistent across all Commonwealth
      legislation.

    3. coverage of the ground of domestic and family violence extend to:

      1. all areas of public life;

      2. direct and indirect discrimination;

      3. actual and imputed status as a victim or survivor of domestic and family
        violence;[4]

      4. associates of victims and survivors of domestic and family violence;

      5. discrimination based on past and current experiences of domestic and family
        violence.

3 Discrimination against
victims and survivors of domestic and family violence

  1. Domestic and family violence affects both women and men.  However, it
    is violence perpetrated by men against women that makes up the overwhelming
    majority of domestic and family violence in Australia.  In 2005, the
    Australian Bureau of Statistics estimated that one in three women over the age
    of 15 years had experienced violence.  Over 40 per cent of these women
    – approximately 1.2 million women – have experienced that violence
    at the hands of a current or former
    partner.[5]  

  2. It is well established under international human
    rights law that domestic and family violence is a violation of human
    rights,[6] with grave and far-reaching
    repercussions for victims and survivors and for their children.  In
    Australia, domestic and family violence is the leading contributor to death,
    disability and illness in women aged 15 to 44 years, and is responsible for more
    of the disease burden in women than many well-known risk factors, such as
    smoking and obesity.[7]  Moreover, approximately one woman is killed by her current or former
    partner every week in Australia, often after a history of domestic
    violence.[8]  Recent research has
    also demonstrated the enduring mental health problems that survivors often
    experience as a result of such
    violence.[9]      

  3. One, often invisible, repercussion of domestic
    and family violence is discrimination; individual women and men may be
    discriminated against because they either have been, or are currently, in a
    violent domestic or family situation.  Discrimination against victims and
    survivors of domestic and family violence may occur in any area of public life,
    including in employment, accommodation, education and the provision of goods and
    services.  For example, discrimination may occur where a woman’s
    employment is terminated because her abusive partner frequents her place of
    work; a victim or survivor is denied access to, or evicted from, public housing
    because she is known to be in an abusive relationship; or a university student
    whose request to defer an exam so she can attend legal proceedings related to
    family violence is denied.  

  4. The majority of research undertaken to date on discrimination against
    victims and survivors of domestic and family violence concerns the workplace.
     This focus is a likely consequence, at least in part, of the central role
    that employment (and the resultant access to income and financial security) can
    play in assisting victims and survivors to extricate themselves from violent
    situations.  

  5. Research into the workplace implications of domestic and family violence has
    demonstrated how such violence can undermine the working lives of both victims
    and survivors.  For example, nearly half (48%) of respondents to the 2011 National Domestic Violence and the Workplace Survey, who reported
    experiencing domestic or family violence, said the violence had affected their
    ability to get to work.[10]  Of
    the respondents who had experienced violence, 19% said that the violence had
    continued in the workplace, including through abusive phone calls and emails and
    presenting at the workplace of the victim.  The main reported impact of
    violence was on work performance, with 16% of victims and survivors reporting
    being distracted, tired or unwell and 10% needing to take time off
    work.[11]  

  6. Although domestic and family violence affects the working lives of both
    parties, it is victims and survivors (primarily women), rather than perpetrators
    (primarily men), who are typically discriminated against in the workplace.
     Discrimination takes many forms, but may include: being denied leave or
    flexible work arrangements to attend to violence-related matters, such as moving
    into a shelter; termination of employment for violence-related reasons; and
    being transferred or demoted for reasons related to
    violence.[12]  Fear of such
    discriminatory treatment is one reason that victims and survivors do not
    disclose their violent situations to
    employers.[13]      
     

  7. The number of employees vulnerable to discrimination on the basis of their
    experiences of domestic and family violence is significant.  Almost
    two-thirds of women affected by domestic and family violence in
    Australia—approximately 800,000 women or around one in six female
    workers— are in some form of paid employment in
    Australia.[14]  This figure is
    likely to be significantly higher when the number of male victims and survivors
    and those individuals who do not report such violence are taken into account, as
    well as the number of victims and survivors vulnerable to discrimination in
    other areas of public life.

  8. Discrimination against victims and survivors of domestic and family violence
    can have grave consequences for the individuals affected, including compounding
    the already significant harm of the original acts of violence and impeding the
    ability of victims and survivors to transition out of violent situations.
     

4 Rationale for a ground
of discrimination related to domestic and family violence

  1. The Commission submits that there are a number of cogent reasons for
    introducing a ground of discrimination concerning domestic and family violence
    in a consolidated equality law and notes early support for its
    inclusion.[15]  

4.1 Clarify and
strengthen existing discrimination protections  

  1. Introducing domestic and family violence as a separate ground of
    discrimination would help to clarify and strengthen existing discrimination
    laws, which already provide some, but limited, protection to victims and
    survivors.[16]
(a) Disability
Discrimination Act 1992 (Cth)

  1. The Disability Discrimination Act 1992 (Cth) (Disability
    Discrimination Act) provides that it is unlawful to discriminate, directly or
    indirectly, against a person with a disability in protected areas of public
    life, including employment, education, the provision of goods, services and
    facilities, and accommodation.  It further provides that it is unlawful, in
    certain circumstances, to fail to make reasonable adjustments for a person with
    a disability.  In addition, it is unlawful to discriminate against an
    associate of a person with a disability.  A disability need not be the only
    reason that a person is discriminated against, but it must be one of the reasons
    for the discrimination.[17]

  2. The Disability Discrimination Act defines disability very broadly. The
    definition of disability includes ‘the malfunction, malformation or
    disfigurement of a part of the person’s body’ and ‘a disorder,
    illness or disease that affects a person’s thought processes, perception
    of reality, emotions or judgment or that results in disturbed
    behaviour’.[18]  The
    Disability Discrimination Act covers a disability that presently exists,
    previously existed but no longer exists, may exist in the future, and is imputed
    to a person.[19]

  3. If a person is discriminated against because of a disability that exists,
    previously existed, may exist in the future, or is imputed to him or her,
    however that disability was caused, that person may make a claim under the
    Disability Discrimination Act.  Accordingly, if a victim or survivor has
    developed a disability as a result of domestic or family violence and is
    discriminated against because of this disability, she or he may make a claim of
    discrimination under the Act.  However, the limitation of the Disability
    Discrimination Act for victims and survivors of domestic and family violence is
    that it requires that the person has a disability and that the disability was
    one of the reasons that the person was discriminated against. This would mean
    that the Act is of limited utility where the only reason that a person is
    discriminated against is because they are experiencing domestic
    violence.

(b) Sex Discrimination
Act 1984 (Cth)

  1. The Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act)
    provides that it is unlawful to discriminate, directly or indirectly, on the
    grounds of sex, marital status, pregnancy or potential pregnancy and
    breastfeeding in protected areas of public life, including employment,
    education, the provision of goods, services and facilities, and accommodation.
     It further provides that it is unlawful to discriminate directly on the
    ground of family responsibilities in the area of employment.  As with the
    Disability Discrimination Act, discrimination on the grounds protected by the
    Sex Discrimination Act need not be the sole or dominant reason for the
    discrimination.[20]

  2. As noted at paragraph 4 above, domestic and family violence is predominantly
    experienced by women.  However, this does not mean that female victims and
    survivors would necessarily be able to make a claim of discrimination related to
    domestic and family violence under the Sex Discrimination Act.  A female
    victim or survivor will only be able to make a claim of direct discrimination if
    she is able to prove that her sex, pregnancy, potential pregnancy, breastfeeding
    or family responsibility was a factor in the discrimination.  A female
    victim or survivor will not be able to make a claim of indirect discrimination
    unless she is able to prove that a condition, requirement or practice was
    imposed on her that had the effect or likely effect of disadvantaging persons of
    the same sex or who are pregnant, potentially pregnant or breastfeeding. The Sex
    Discrimination Act will, thus, be of limited utility where the sole or dominant
    reason for the discrimination is domestic or family violence.

  3. The Sex Discrimination Act also provides that it is unlawful to discriminate
    against a person on the ground of sex by reason of a characteristic that
    appertains generally, or is generally imputed, to persons of the sex of the
    aggrieved person.[21]  Rees,
    Lindsay and Rice state that

    [w]hether a matter is a characteristic
    that generally appertains to, or is generally imputed to, people of a particular
    sex is a question of fact.  There is little case law which assists a court
    or tribunal in actually determining whether a particular matter falls within the
    ‘characteristic extension’.  A ‘characteristic’ is
    something which is a distinguishing feature, or is distinctive about the group
    of people.[22]

Whilst domestic and family violence is predominantly experienced by women, it
cannot be said that most women experience domestic or family violence. Given
this, it may be difficult for a female victim or survivor, who claims that she
has been discriminated against for reasons related to domestic or family
violence, to prove that such violence is a condition that appertains generally
to women.  Men who experience domestic violence would not be able to make a
claim of sex discrimination using the ‘characteristic extension’
ground.

* * *

  1. The existing grounds, while affording victims and survivors of domestic and
    family violence some level of protection against discrimination, are inadequate.
      While victims and survivors may be able to make a valid claim under
    existing discrimination laws, there is a gap in the law where the discrimination
    experienced by persons who have been subject to domestic or family violence
    cannot be linked to a protected ground.  Introducing domestic and family
    violence as a separate ground of discrimination would allow for a more
    comprehensive form of protection and greater consistency of
    approach.[23]

4.2 Cost benefits
 

  1. As noted in the principal submission, the Commission reiterates its earlier
    recommendation that any regulatory impacts and resourcing issues arising in the
    context of measures for improved effectiveness of discrimination law should be
    assessed having regard to their potential for large scale economic and social
    benefits.[24]  The Commission
    is of the view that the introduction of domestic and family violence as a
    separate ground of discrimination has the potential to result in substantial
    productivity and participation gains for the Australian economy.  

  2. In addition to the considerable health costs, described in paragraph 5 above, there are significant costs associated
    with domestic and family violence that impact on the Australian economy and
    Australian business.  It is estimated that violence against women and
    children will cost the Australian economy $15.6 billion by 2021-2022, unless
    effective action is taken to prevent this
    viol[25]ce.25 
    The cost of productivity losses is expected to rise to $609 million by
    2021-[26]22.26  These losses or financial costs can result from ‘absenteeism and
    turnover, illness and accidents, disability or even death ... [and] decreased
    functionality and performance, quality of work and timely
    production&#[27]27.  In the
    United Kingdom, for example, domestic violence has been estimated to cost the
    economy £2.7 billion a year in decreased productivity, lost wages and sick
    pay, over half of which is borne by
    emplo[28]rs.28  

  3. The costs of domestic and family violence to the Australian economy and
    Australian business are exacerbated when victims and survivors are subjected to
    discrimination, for example where their employment is terminated and costs are
    incurred in recruiting and training a new employee or where a long-term, highly
    productive employee resigns as a result of employer discrimination arising from
    her need to address the consequences of domestic and family violence.
     

  4. The mental and physical consequences of abuse undoubtedly affect the
    performance and effective workplace participation of productive
    employees.[29]  Their
    performance is potentially further undermined when they face discriminatory
    treatment from employers.  In an ILO report on Gender-based Violence in
    the World of Work    , the authors argue that ‘economic growth,
    competitiveness, development and efficiency can only be achieved where barriers
    to productive and quality employment opportunities are eliminated for both men
    and women’[30].  Making
    discrimination related to domestic and family violence unlawful in the workplace
    (and in other areas of public life) will be a critical and positive contributor
    to achieving workplace equality and wellbeing and, accordingly, enhancing
    workplace productivity.

  5. A further socio-economic benefit is that eliminating discrimination against
    victims and survivors will improve their access to, and ability to remain in,
    employment, which plays a critical role in assisting victims and survivors to
    transition out of domestic and family
    violence.[31]  Access to income
    and financial security can be important preconditions that enable survivors to
    leave violent and abusive relationships and family situations.  Conversely,
    impoverishment or fear of impoverishment is one of the reasons that victims and
    survivors of domestic violence often stay in violent and abusive relationships
    and family situations.  

4.3 Educative
function  

  1. Prohibiting discrimination on the ground of domestic and family violence
    would serve an important educative function.  

  2. Introducing a separate ground of discrimination related to domestic and
    family violence will enable this form of discrimination to be identified and
    acknowledged as a legal wrong in need of redress and prevention.  The
    introduction of a legal prohibition can serve an important function for
    revealing an insidious and harmful form of discrimination and human rights
    violation,[32] and explaining its
    individual and systemic implications in education, housing, employment and other
    areas.  In addition, the naming of this form of discrimination may
    facilitate the adoption of measures to eliminate existing and prevent future
    acts of discrimination.  

  3. Additionally, recognising domestic and family violence as a separate ground
    of discrimination in a consolidated Commonwealth equality law will increase
    community awareness about the broader impact of such violence and the link
    between domestic and family violence and discrimination.  It will reinforce
    a message from the Australian Government that such violence and discrimination
    is not tolerated.  

  4. Increased community awareness may, in turn,

    1. facilitate the adoption of policies and procedures to support victims and
      survivors of domestic and family violence and aid the establishment of
      environments in workplace, educational, housing and other sectors that are
      supportive of victims and survivors;

    2. foster an environment in which victims and survivors can feel free to
      disclose their violent situations and its impact with a view to developing
      effective means of resolution and redress.  

  5. Although research suggests that many individuals do disclose their violent
    domestic or family situation in the workplace, many do not for fear of the
    repercussions, such as dismissal.  Less than half (48%) of respondents to
    the National Domestic Violence and the Workplace Survey who had
    experienced violence disclosed it to a manager or
    supervisor.[33]  In cases of
    non-disclosure, the implications of domestic and family violence remain largely
    hidden and may contribute to discriminatory treatment because of the
    employer’s lack of understanding about the causes of an apparent decline
    in an employee’s attendance or performance.  


  6. Without naming the experience and its impact on the lives of victims and
    survivors (for example, in relation to their working lives), and having a
    protective framework for doing so, victims and survivors are unable to take the
    necessary steps for both the effective prevention of the violence and redress
    for any subsequent discriminatory treatment.    

4.4 Complement other
strategies  

  1. Introducing domestic and family violence as a separate ground of
    discrimination in a consolidated Commonwealth equality law would complement
    emerging workplace-based strategies for addressing domestic and family violence,
    notably inclusion of domestic and family violence clauses in enterprise
    agreements, especially in situations where workplace entitlements have been
    exhausted.[34]

  2. Important progress has been made in the employment sphere in supporting
    victims and survivors through the introduction, by some employers, of policies
    and clauses in enterprise agreements on domestic and family violence.  

  3. However, discrimination against victims and survivors is not limited to the
    employment sphere.  Accordingly, the extent and impact of domestic and
    family violence needs to be addressed comprehensively, with individuals and
    institutions from all sectors of society offering victims and survivors
    appropriate mechanisms of prevention and
    redress.[35]  As the National Plan to Reduce Violence against Women and Their Children acknowledges,

    involving all governments and the
    wider community is necessary to reducing violence in the short and longer terms.
     No government or group can tackle this problem alone.  While living
    free from violence is everyone’s right, reducing violence is
    everyone’s responsibility.[36]

  4. A new ground of discrimination potentially provides another rung on the
    ladder of protection that will further enable the wider Australian community to
    address domestic and family violence effectively.  It will also help to
    ensure that victims and survivors who experience discrimination both inside and
    outside the employment context receive adequate protection.

Recommendation 1: The Commission recommends that a
consolidated Commonwealth equality law prohibit discrimination on the ground of
domestic and family violence.

5 Constitutional power
for enacting new ground of discrimination

  1. An issue for consideration is the source of the Commonwealth
    Government’s power to enact a new ground of discrimination related to
    domestic and family violence.  The Commission notes that current
    anti-discrimination laws rely on the external affairs power in section 51(xxix)
    of the Constitution, amongst other powers, including those to make laws with
    respect to trading and financial corporations, banking, insurance and interstate
    trade and commence, for constitutionality validity.

6 Scope and content of
ground of discrimination
 



6.1 Definition
of domestic and family violence

  1. The Commission notes that the Australian Law Reform Commission and New South
    Wales Law Reform Commission proposed a definition of ‘family
    violence’ in their 2010 report, Family Violence – A National
    Legal Response    , for use in state and territory family violence
    legislation.[37]  

    State and territory family violence legislation should
    provide that family violence is violent or threatening behaviour, or any other
    form of behaviour, that coerces or controls a family member or causes that
    family member to be fearful. Such behaviour may include but is not limited
    to:

    1. physical violence;
    2. sexual assault and other sexually abusive behaviour;
    3. economic abuse;
    4. emotional or psychological abuse;
    5. stalking;
    6. kidnapping or deprivation of liberty;
    7. damage to property, irrespective of whether the victim owns the
      property;
    8. causing injury or death to an animal irrespective of whether the victim
      owns the animal; and
    9. behaviour by the person using violence that causes a child to be exposed
      to the effects of behaviour referred to in (a)–(h) above.

The
Australian Law Reform Commission proposed in its 2011 Discussion Paper on Family Violence – Commonwealth Laws that such a definition be
applied across federal laws.[38]

  1. In November 2011, the Australian Parliament enacted the Family Law
    Legislation Amendment (Family Violence and Other Measures) Act 2011     (Cth).
     The Act inserted a new definition of ‘family violence’ in
    section 4AB of the Family Law Act 1975 (Cth),[39] substantially
    implementing the recommendation by the Australian Law Reform Commission and NSW
    Law Reform Commission.  

  2. The Commission notes the importance of adopting a definition of domestic and
    family violence for the ground of discrimination that is consistent across all
    Commonwealth legislation.  However, the definition proposed by the
    Australian Law Reform Commission may need to be expanded to include non-familial
    relationships, such as dating and carer relationships.

  3. Other definitions of domestic and/or family violence can be found in the National Plan to Reduce Violence against Women and Their
    Children    ,[40] state and
    territory legislation,[41] comparative domestic violence
    legislation,[42] and comparative
    laws that proscribe discrimination against victims and survivors of domestic
    violence.[43]

(a) Consistent
definition
  1. The Commission urges the Government to take appropriate measures to ensure a
    consistent definition of domestic and family violence across all relevant
    Commonwealth legislation, to maximise simplicity in addressing this critical
    issue.  It further urges the Government to work with its state and
    territory counterparts to develop a consistent definition nationally.
     
(b) Gender neutral

  1. The Commission recommends that any definition of domestic and family
    violence be gender neutral.  Domestic and family violence are not limited
    to any one type or types of domestic or family relationships.  They can,
    and do, occur in all relationships and family situations, regardless of the sex,
    sexual orientation or sex or gender identity of the persons involved.
     Research suggests, for example, that domestic violence occurs at a similar
    rate in same sex relationships as in opposite sex
    relationships.[44]  

  2. The Commission believes that this factor should be taken into account when
    defining domestic and family violence, in order to ensure consistent protection
    for all victims and survivors of domestic and family violence, and not just
    those individuals in heterosexual relationships or family situations.  A
    gender neutral definition would also ensure consistency with the new protections
    against discrimination on the grounds of sexual orientation and gender identity.
         

Recommendation 2: The Commission
recommends that for the purposes of defining the ground of domestic and family
violence, a consolidated Commonwealth equality law adopt a definition of
domestic and family violence that is gender neutral and consistent across all
Commonwealth legislation.

6.2 Coverage

  1. The Commission suggests that favourable consideration be given to providing
    broad protection against discrimination on the grounds of domestic and family
    violence.  
(a) All areas of public
life

  1. In its primary submission, the Commission suggested that the Government give
    favourable consideration to coverage by a consolidated Commonwealth equality law
    of discrimination in any area of public life covered by the law.  

  2. If protection against discrimination in public life is extended, as the
    Commission contends it should, the proposed ground of domestic or family
    violence should be protected consistently with other protected grounds.
     Extending coverage in this way would provide comprehensive coverage to
    victims and survivors who would be protected against discrimination in all areas
    of public life and not just in enumerated areas.

(b) Direct and indirect
discrimination
  1. The Commission submits that a consolidated Commonwealth equality law should
    provide that both direct and indirect discrimination on the ground of domestic
    and family violence are unlawful.  Extending coverage in this way would
    ensure victims and survivors comprehensive protection against discrimination.
      Such coverage is also consistent with discrimination laws, as they are
    currently framed.[45]
(c) Actual and perceived
(imputed) status  

  1. The Commission suggests that coverage of the proposed domestic and family
    violence ground extend to actual and imputed victims and survivors of domestic
    and family violence.  

  2. This approach has already been recognised in several jurisdictions that
    prohibit discrimination against victims and survivors of domestic and family
    violence, including the state of New York, which makes it unlawful to
    discriminate ‘on the basis of actual or perceived status as a victim of
    domestic violence’[46].
     Such an approach is also consistent with existing protections in a number
    of Commonwealth anti-discrimination laws, which protect against discrimination
    on the basis of attributes or characteristics that are ‘imputed’ to
    individuals.[47]  

  3. The Commission suggests that the consolidated equality law should recognise
    the status of victim and survivor of domestic or family violence that is imputed
    by a discriminator, regardless of whether or not that status is
    ‘generally’ imputed, consistent with recommendation 9 in its primary
    submission and its submission to the review of the Sex Discrimination
    Act.

(d) Associates

  1. The Commission suggests that coverage of the proposed domestic and family
    violence ground include associates of victims and survivors, consistent with
    recommendation 23 in its primary submission, which recommends that a
    consolidated Commonwealth equality law apply to discrimination on the basis of
    association with a person with a protected attribute or attributes.  

  2. Because of the insidious nature of domestic and family violence, victims and
    survivors often require support from family members and friends, including
    attendance at legal proceedings as a support person, help relocating, emotional
    support and assuming caring responsibilities.  Such support is integral to
    the safety and general health and wellbeing of victims and survivors and their
    children.  For this reason, individuals who support victims and survivors
    of domestic and family violence also require protection against discrimination.

(e) Past and current
experiences of domestic and family violence
  1. The Commission suggests that coverage of the proposed ground should extend
    to individuals who are discriminated against on the basis of past and current
    experiences of domestic and family violence.  This should include
    discrimination based on the ongoing consequences of domestic and family
    violence, such as the enduring mental health problems that survivors often
    experience as a result of such
    violence.[48]  Such an approach
    is consistent with the way disability discrimination is currently
    protected.[49]

Recommendation
3: The Commission recommends that coverage of the ground of domestic and family
violence extend to:

  • all areas of public life;

  • direct and indirect discrimination;

  • actual and imputed status as a victim or survivor of domestic and
    family violence;

  • associates of victims and survivors of domestic and family violence;

  • discrimination based on past and current experiences of domestic and
    family violence.

[1] See Australian Human Rights
Commission, Submission to the Attorney-General’s Department on
Consolidation of Commonwealth Discrimination Law (6 December 2011), 24.
 At http://humanrights.gov.au/legal/submissions/2011/20111206_consolidation.html.
 

[2] See Attorney-General’s
Department, Consolidation of Commonwealth Anti-Discrimination Laws:
Discussion Paper (2011).  

[3] Australian Human Rights
Commission, Submission to the Attorney-General’s Department on
Consolidation of Commonwealth Discrimination Law, note
1.



[4] For the sake of brevity, the
terms ‘victim’ and ‘survivor’ are used throughout the
remainder of this submission to refer to persons who have experienced or are
experiencing domestic and family violence and persons who are imputed to have
experienced or be experiencing domestic and family violence.

[5] See Australian Bureau of
Statistics, Personal Safety, Australia, 2005 (Reissue),
Catalogue No. 4906.0 (2006).  

[6] 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), [7].

[7] See VicHealth, The Health
Costs of Violence: Measuring the Burden of Disease Caused by Intimate Partner
Violence (2004), 8.

[8] See Jack Dearden & Warwick
Jones, Homicide in Australia: 2006 – 07 National Homicide Monitoring
Program Annual Report, Australian Institute of Criminology (2008), 2.

[9] See Susan Rees et al.,
‘Lifetime Prevalence of Gender-Based Violence in Women and the
Relationship with Mental Disorders and Psychological Function’ (2011)
306(5) JAMA 513, at 513.

[10] Ludo McFerran, Safe at
Home, Safe at Work? National Domestic Violence and the Workplace Survey (Centre for Gender Related Violence Studies and Micromex Research, 2011),
17. At http://www.adfvc.unsw.edu.au/PDF%20files/Domestic_violence_and_work_survey_report_2011.pdf.
Reasons included physical injury or restraint (67%), hiding or stealing car keys
or transportation money (28%), and refusal or failure to care for children
(22%): see above at 8-9.

[11] Above, 10.  

[12] See, e.g., Australian Human
Rights Commission, Submission to the Australian Law Reform Commission Inquiry into Family Violence and Commonwealth Laws: Employment and
Superannuation (21 April 2011), para. 47. At: http://www.humanrights.gov.au/legal/submissions/2011/20110421_family_violence.html

[13] McFerran, note 10.
 

[14] See Australian Bureau of
Statistics, note 4.  

[15] See Attorney-General’s
Department, Consolidation of Commonwealth Anti-Discrimination Laws:
Discussion Paper (2011), [85], citing Equality Rights Alliance, Gender
Equality Roundtable Submission to the Consolidation Project (2011), 5. At: http://www.equalitylaw.org.au/_literature_48131/Gender_Equality_Roundtable_Submission_to_the_Consolidation_Project;
National Association of Community Legal Centres, Areas for Increased
Protection in Discrimination Law: Consolidation of Federal Discrimination
Legislation (2011), 11. At: http://www.rlc.org.au/admin/spaw2/uploads/files/Paper2.pdf.

[16] Australian Human Rights
Commission, Domestic Violence as a Ground of Discrimination: Roundtable,
Sydney, 3 November 2011.

[17] Disability Discrimination
Act, s 10.

[18] Above, s 4.

[19] Above.

[20] Sex Discrimination Act, s
8.

[21] Above, ss 5(1)(b) and
(c).

[22] Neil Rees, Katherine
Lindsay & Simon Rice, Australian Anti-Discrimination Law: Text, Cases and
Materials (2008), [5.2.5.7].

[23] Australian Human Rights
Commission, Domestic Violence as a Ground of Discrimination: Roundtable,
Sydney, 3 November 2011.

[24] See Australian Human Rights
Commission, Submission to the Attorney-General’s Department on
Consolidation of Commonwealth Discrimination Law, note 1, [15].

[25] National Council to Reduce
Violence against Women and their Children, The Cost of Violence Against Women
and Their Children (March 2009), 4.

[26] Above, at 45.

[27] Adrienne Cruz & Sabine
Klinger, Gender-Based Violence in the World of Work: Overview and Selected
Bibliography, International Labour Office, Working Paper 3/2011
(2011), 13.

[28] Sylvia Walby, The Cost of
Domestic Violence (UK Women & Equality Unit, 2004), 8, 11, 96-97.
 

[29] Cruz & Klinger, note 27,
15.  

[30] Above, at 73.
 

[31] See generally
Rochelle Braaf & Isobelle Barrett Meyering, Seeking Security: Promoting
Women’s Economic Wellbeing Following Domestic Violence (Australian
Domestic and Family Violence Clearinghouse, 2011).

[32] Andrea Durbach,
‘Domestic Violence Discrimination and the Consolidation of Commonwealth
Anti-Discrimination Laws’ Paper delivered at Safe at Home, Safe at Work
Conference, 5 December 2011 (Melbourne), citing Rebecca J. Cook and Simone
Cusack, Gender Stereotyping: Transnational Legal Perspectives (2011), 39.
At: http://humanrights.gov.au/about/media/speeches/sex_discrim/2011/20111205_domestic_violence.html.

[33] See McFerran, note 10, 13.
 

[34] See, e.g., University of
New South Wales (Academic Staff) Enterprise Agreement 2011, cl 33.4. At: http://www.hr.unsw.edu.au/services/indrel/UNSW_Academic_Staff_Enterprise_Agreement_2011.pdf.
 For other examples, see Australian Domestic & Family Violence
Clearinghouse, ‘Domestic Violence Workplace Rights and Entitlements
Project: ‘Safe at Home, Safe at Work’.  At http://www.adfvc.unsw.edu.au/dv_workplace_rights_entitlements_project.htm.
 See generally Australian Law Reform Commission, Family Violence –
Commonwealth Laws: Discussion Paper (2011), 542-556. At: http://www.alrc.gov.au/publications/17-employment%E2%80%94-fair-work-act-2009-cth-continued/enterprise-agreements. 
 

[35] Betty Taylor cited in Ben
Pennings, ‘Domestic Violence: A Workplace Issue’, in Australian
Domestic & Family Violence Clearinghouse (2008) 31 Newsletter 1, at
14.

[36] National Plan to Reduce
Violence against Women and Their Children (2011), i.

[37] Australian Law Reform
Commission and NSW Law Reform Commission, Family Violence – A National
Legal Response, Final Report, ALRC Report 114 (2010), 246.

[38] See Australian Law Reform
Commission, Family Violence – Commonwealth Laws, Discussion Paper
76 Summary (2011), 10.

[39] See Family Law
Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), s
8.  The new section 4AB of the Family Law Act 1975 (Cth) states:

(1) For the purposes of this Act, family violence means violent, threatening
or other behaviour by a person that coerces or controls a member of the
person’s family (the family member), or causes the family member to be
fearful.

(2) Examples of behaviour that may constitute family violence include (but
are not limited to):

(a) an assault; or

(b) a sexual assault or other sexually abusive behaviour; or

(c) stalking; or

(d) repeated derogatory taunts; or

(e) intentionally damaging or destroying property; or

(f) intentionally causing death or injury to an animal; or

(g) unreasonably denying the family member the financial autonomy that he or
she would otherwise have had; or

(h) unreasonably withholding financial support needed to meet the reasonable
living expenses of the family member, or his or her child, at a time when the
family member is entirely or predominantly dependent on the person for financial
support; or

(i) preventing the family member from making or keeping connections with
his or her family, friends or culture; or

(j) unlawfully depriving the family member, or any member of the family
member’s family, of his or her liberty.  ....

The Australian Law Reform Commission’s report on its inquiry into
Commonwealth laws and family violence will shortly be tabled in the Australian
Parliament.

[40] National Plan to Reduce
Violence against Women and Their Children (2011), 3.

[41] See, e.g., Family
Violence Prevent Act 2008 (Vic), s 5.

[42] See, e.g., Law against
Domestic Violence of 2010 (Timor Leste), art 2 (defining ‘domestic
violence’); Magna Carta of Women of 2008 (Phil.), s 4(k) (defining
‘violence against women’).

[43] See, e.g., Administrative
Code of the City of New York, Title 8 (U.S.), ss 8-107.1(1)(b) (defining
‘victim of domestic violence’).

[44] See generally William
Leonard et al., Coming Forward: The Underreporting of Heterosexist
Violence and Same Sex Partner Abuse in Victoria (2008); Janine Farrell &
Somali Cerise, Fair’s Fair: A Snapshot of Violence and Abuse in Sydney
LGBT Relationships 2006 (2006); Marian Pitts et al., Private
Lives: A Report on Health and Wellbeing of GLBTI Australians (2006),
51-52.

[45] See, e.g., Sex
Discrimination Act, ss 5(2), 6(2), 7(2), 7AA(2), 7B.

[46] Administrative Code of
the City of New York, Title 8 (U.S), ss 8-107.1, 8-107.3(a).

[47] See, e.g., Sex
Discrimination Act, s 5(1)(c); Disability Discrimination Act, s 4.

[48] See Rees, note 9, at
513.

[49] Disability Discrimination
Act, s 4.