1.1
Government members of the committee support the rights of individuals of
any gender to be free from abuse or violence.
1.2
Dowry-related family violence is a complex issue that must be handled
with sensitivity. Coalition Senators urge care in approaching the legal,
cultural, social and economic implications of this phenomenon.
1.3
Government members of the committee are satisfied that the elements of
the offences described in the Chair’s report as dowry-abuse and dowry-related
violence are already sufficiently addressed under state and territory criminal
law and criminal codes, and are given adequate consideration in the operation
of commonwealth family law.
1.4
Government members agree that more can be done to inform and empower
individuals around family and dowry-related violence and acknowledge that this
Inquiry has “shone a light” on the need for more grassroots assistance to be
made available to victims of family violence, including those experiencing
dowry abuse.
1.5
The disadvantages potentially experienced by victims of dowry-abuse – in
terms of language, financial literacy, lack of support networks etc – are
present in many situations of family violence more generally. Committee members
were reassured by evidence from, for example, the Attorney-General’s
Department, that extensive programming exists at both the commonwealth and
state levels to address such disadvantage in family violence matters. Committee
members are however supportive of recommendations for additional resources and
information to be made available to vulnerable demographics.
1.6
Senators believe it is important to be tolerant of the cultural
traditions of others and to take care not to demonise all practices, which are
often benign in effect, due to a small number of unfortunate and/or illegal
outcomes. It is however worth noting that the practice of dowry is banned in
some jurisdictions.
1.7
Governments members agree that consideration should be given to the
inclusion of ‘economic abuse’ in the national Family Law regime however suggest
caution in the development of the elements of such an offence to ensure that
innocent conduct is not criminalised and that unsuspecting members of the
community are not inadvertently exposed to prosecution.
1.8
The committee agrees that there will be value in the harmonisation of
state and federal laws around family violence – including those offences that
may be enlivened by cases of dowry-abuse or dowry-related violence. However, as
with the proposed inclusion of ‘economic abuse’ in the family law regime,
committee members urge caution in the harmonisation of the elements of these
offence to ensure that innocent conduct is not criminalised and that
unsuspecting members of the community are not inadvertently exposed to
prosecution.
1.9
Additionally, committee members are reluctant to characterise dowry
abuse, or family violence more generally, as gender violence that is only
perpetrated against women. Government members of the committee are of the view
that family and domestic violence manifests in multiple ways and impacts men,
women and children without discrimination. Evidence to that effect was given to
the committee.
1.10
The committee notes that the Australian Law Reform Commission are
currently conducting a review of Family Law and note that the inclusion of
‘economic violence’ and other family-violence related matters may be included
in the ALRC’s deliberations.
1.11
Government members of the committee are substantially persuaded that
existing legal frameworks adequately capture offences that could be deemed 'dowry
abuse' or 'dowry-related violence'. As the Chair’s Report noted at paragraph
2.13:
The following exchange between the Chair and Ms Ashleigh
Saint of the Attorney-General's Department (AGD)—which administers the Family
Law Act—at the committee's public hearing in Canberra on 3 December 2018, sets
out the intersection between federal, state and territory laws with respect to
family violence:
Ms Saint:...In terms of the criminalisation of that behaviour,
that is predominantly dealt with under state and territory law in relation to
abuse.
CHAIR: Why is it primarily within state and territory law
and not within family violence law?
Ms Saint: The Family Law Act deals with family violence in
the context of proceedings in family law. General assault and family violence
offences against the person and other offences like that fall within state and
territory law.
CHAIR: That's right. I just have to go back to
understanding this. So, even though family violence, assaults et cetera are
relevant within family law, the offences themselves are defined within state
law. That's what you're saying?
Ms Saint: That's correct. But those offences having
occurred would be relevant in family law proceedings.[1]
1.12
The Chair’s report also details the relevant legislative schemes that
are already operating in the ACT, New South Wales, Northern Territory,
Queensland, South Australia, Tasmania, Victoria, and Western Australia from
paragraph 2.24 to paragraph 2.45. The Committee is persuaded by evidence from
the Attorney-General’s Department that these schemes, coupled with the relevant
provisions of the Family Law Act, provide sufficient operable legal protection
for victims of the offences that could be characterised as 'dowry abuse' or 'dowry-related
violence'. This is particularly so should these schemes be nationally
harmonised.
1.13
The Chair’s report also identified a range of potential problems with
criminalising practices within the scope of 'dowry-abuse'. At paragraph 3.50
the Chair’s report remarks that:
The committee accepts, however, the reasoning presented that
a narrow approach of simply criminalising particular practices, such as dowry,
may be counter productive as it ignores the complexity of family violence in
certain cultures. The committee is also concerned that criminalisation of the
practice of dowry may have the unintended result of driving this pernicious
cultural practice underground, further isolating CALD women and causing greater
harm. Criminalising or seeking to ban the practice of dowry would also
complicate the task of making beneficial changes to reduce the impact of dowry
abuse in areas such as family law property settlements and the migration
system. In addition, there may be legitimate versions of property transfer that
operate in different cultural contexts. A common example might be parents
making gifts to children upon marriage, noting that these gifts belong to the
couple and not to 'in-laws' or broader family interests.[2]
1.14
Government members of the committee suggest that further advice be
sought, consultation be undertaken and caution be applied to any reform
process.
1.15
It terms of the adjudication of matters pertaining to allegations of
dowry abuse, the Chair’s Report noted reassuring evidence regarding the
approach of the judiciary. Paragraph 4.5 of the Chair’s Report noted:
The AGD also referred to the National Domestic and Family
Violence Bench Book (Bench Book), which 'is available to all judicial officers
across Australia'. Indeed, all Family Court and Family Circuit Court judges
have 'been trained in the contents of that bench book through judicial training
which has been sponsored by the department'.[3]
1.16
And further, at paragraph 4.6:
Part 3.1.5 of the Bench Book refers expressly to dowry abuse
as an example of cultural and spiritual abuse which comes within the meaning of
family violence. Dowry abuse will be taken to have occurred where the
perpetrator has asserted 'his entitlement to a dowry from the victim’s family,
or punishing the victim or her family for what he claims to be an insufficient
dowry'.[4]
1.17
Additionally, the Chair’s Report quoted evidence from Monash University
that related to the treatment of a dowry-related case in the Federal Court:
In that case, the Judge stated that the wife's dowry was 'a
very significant direct financial contribution to the marriage'[5] and that the wife's contributions '[o]verwhelmingly...exceeded those of the
husband's prior to marriage'.[6] The payment was not treated by the presiding Judge as a gift, 'but rather a
joint asset of the property pool, resulting in a more equitable settlement in
which financial justice was achieved'.[7]
Comment of Government Senators on the recommendations of the Majority
Report
1.18 Recommendation 1 of the Chair’s report (at paragraph 4.28) recommends
that:
The committee recommends that the term 'economic abuse' is
included as a form of family violence in subsection 4AB(2) of the Family Law
Act 1975, and the subsection provide a non-exhaustive list of examples of
economic abuse, including dowry abuse.
1.19
Government Senators do not agree with this recommendation and would
instead seek further advice from the legal profession and stakeholders, and the
report of the ALRC, before further complicating existing legislative and
regulatory schemes around family violence.
1.20 Recommendation 2 of the Chair’s report (at paragraph 4.51) recommends
that:
The committee recommends that the Australian government
work with the states and territories to harmonise existing legislation
providing for intervention/violence orders to explicitly recognise dowry abuse
as an example of family violence or economic abuse.
1.21
Government Senators agree that the harmonisation of laws relating to
family violence could provide greater certainty and offer better outcomes to
victims and litigants. Government Senators are, however, not currently
persuaded that the inclusion of the term 'dowry abuse' in state, territory and
national legal frameworks will deliver any particular benefit at this time. As
with recommendation 1 (see paragraph 1.18 of these Additional Remarks)
Coalition Senators urge a cautious and consultative approach.
1.22 Recommendation 3 of the Chair’s report (at paragraph 4.54) recommends
that:
The committee recommends that the Australian government
give further consideration to legal and decision making frameworks to ensure
that victims of dowry abuse are not disadvantaged in family law property
settlements, given the community concerns about inconsistent approaches under
the current family law framework.
1.23
Government Senators are of the view that the operation of state,
territory and commonwealth legal frameworks, and the guidance provided by the
relevant Bench Books, currently deliver just and equitable outcomes to
litigants in this space, and that education and awareness are critical to the
protection of potential victims of family violence. As the Chair’s report
provided at paragraph 4.19:
In contrast to submitters who advocated for the explicit
reference to dowry abuse in legislation, Professor Supriya Singh warned against
highlighting dowry and dowry abuse as a specific form of family violence on the
basis that it ignores other forms of economic abuse including that which may
occur in Anglo Celtic culture.[8]
Professor Singh did not object to giving examples of economic abuse in
legislation, but ultimately favoured raising awareness of economic abuse and
increasing cross cultural understanding 'about the non-physical aspects of
family violence'.[9]
1.24
Government Senators also look forward to any views that will be
expressed on this issue in the report of the ALRC Review into family law.
1.25 Recommendation 4 of the Chair’s report (at paragraph 5.31) recommends
that:
The committee recommends that the Australian government:
- give further consideration to the recommendation
of the Victorian Royal Commission into Family Violence to broaden the
definition of family violence in the Migration Regulations 1994; and
- ensure that those who are forced to marry their
partner or experience family violence from their partner and/or their partner’s
family members are protected through the family violence provisions in the
Migration Regulations 1994, such that the regulatory framework is consistent
with the policy intention to protect victims of domestic or family violence
within the migration context.
1.26
Government Senators agree that there is a clear need for protections for
victims of family violence under the Migration Regulations however are
persuaded by evidence from the Department of Home Affairs that the current
regulatory framework operates with sufficient vigour to provide these
protections. The Chair’s report notes evidence from the Department of Home
Affairs provided at paragraph 5.17:
In evidence to this inquiry, the Department of Home Affairs
(DHA) asserted that the current definition of 'relevant family violence' in the
Regulations is 'broadly framed to retain flexibility' and that '[p]olicy advice
provides further detail, which ensures the definition of family violence
remains current'.[10]
1.27 Recommendation 5 of the Chair’s report (at paragraph 5.67) recommends
that:
The committee recommends that the Australian government
act to address the injustice whereby family violence protection is not
available to victims on many temporary visas and consider:
- extending the family violence provisions in the
Migration Regulations 1994 beyond temporary Partner visa holders, Prospective
Marriage visa holders who have married their sponsor and dependent applicants
for a Distinguished Talent visa, to apply to other family visa subclasses; and
- the creation of a temporary visa—for example a
'Woman at Risk in Australia' visa—to be available for non-family temporary visa
holders who have suffered serious and proven family violence including dowry
abuse.
1.28
Government members of the committee agree that protections against
violence that may occur within Australia should be provided regardless of
immigration status. Government Senators would, however, suggest that this is a
broad and complex subject matter that requires further investigation and
consultation to develop an operable model.
1.29 Recommendation 6 of the Chair’s report (at paragraph 5.71) recommends
that:
The committee recommends that the Australian government
ensure decision makers consider the nature of alleged family violence when
making an assessment on whether the relationship was genuine prior to it
ending.
1.30
Government Senators are of the view that the relevant departmental
processes and officials are both diligent and sensitive when dealing with any
immigration matter and that all due care is taken to determine the true facts
of any particular case.
1.31 Recommendation 7 of the Chair’s report (at paragraph 5.76) recommends
that:
The committee recommends that the Australian government
consider innovative use of the sponsorship mechanism and the new family
sponsorship framework to prevent previous perpetrators from sponsoring multiple
spouses, and by requiring sponsors to provide disclosures and give undertakings
in relation to their circumstances and to dowry.
The committee also recommends that the Australian
government look explicitly at ensuring that the work of the Department of Home
Affairs is included in National Family Violence Prevention Strategies, not just
from the point of view of access to visas, but also visa processing and
assessment.
1.32
Government Senators support any measure that increases transparency in
the operation of the commonwealth’s migration scheme and would welcome further
consultation with the Department to determine a practicable way to scrutinise
the sponsorship framework to ensure it is not being abused.
1.33
Government Senators also do not object in-principle to the suggestion
that the Department of Home Affairs should be mindful of Family Violence
Prevention Strategies. Senators do, however, expect that the Department is
already very much alive to these issues in its day-to-day operations.
1.34 Recommendation 8 of the Chair’s report (at paragraph 6.27) recommends
that:
The committee recommends that the Australian government,
together with state and territory governments, work with culturally and
linguistically diverse communities and service providers in order to determine
ways in which to establish a firm evidence base on the incidence of dowry
abuse.
1.35
Government Senators agree with the provision of culturally and
linguistically appropriate information and services around family violence.
Coalition Senators would submit that many of these functions already exist at
the state level and that the harmonisation imperative suggested in the Chair’s
Report recommendation 2 will provide new opportunities to share information
regarding the prevalence of, and responses to, these phenomena.
1.36 Recommendation 9 of the Chair’s report (at paragraph 6.30) recommends
that:
The committee recommends that the Australian government
work with the States and Territories to improve and strengthen the governance
of data collection practices and standards by implementing a system to capture
and measure the extent and incidence of all forms of family violence in
Australia, including dowry abuse as a form of economic abuse.
1.37
Government Senators agree with suggestions for the improved collection
of data regarding forms of family violence that can be characterised as 'dowry-abuse'
and suggest that such data could assist in the harmonisation and further
development of legal frameworks relating to family violence.
1.38 Recommendation 10 of the Chair’s report (at paragraph 6.63) recommends
that:
The committee recommends the Department of Social Services
Family Safety Pack is provided individually to all visa applicants in their
first language, such as during the health examination required as a condition
of their visa application.
1.39
Government Senators agree with Recommendation 10.
Senator the Hon Ian Macdonald
Liberal Party of Australia
Senator Jim Molan AO, DSC
Liberal Party of Australia
Navigation: Previous Page | Contents | Next Page