Fitz-Gibbon et al

In April 2021 an Australian Government Inquiry recommended the Australian government commission research to explore the benefits and risks of the introduction of a publicly accessible register of convicted domestic, family and sexual violence perpetrators. At the time of the Inquiry’s recommendation, only one Australian jurisdiction had a domestic violence disclosure scheme (DVDS) in operation and no state had a publicly accessible sex offender register. A public register, if implemented, would represent a significant shift in the approach taken to achieving perpetrator accountability and better ensuring women’s safety. This article traces the decade leading up to this recommendation and the significant variance in policy and practice across Australian state and territory jurisdictions. To do so, it critically analyses the outcomes of two major state-level inquiries, which did not recommend the introduction of a DVDS or a public offender register. These case studies are presented alongside a contrasting case study of two other Australian states which, following the introduction of a DVDS in England and Wales, have adopted a DVDS with the stated objective of improving women’s safety through the provision of greater information about perpetrator histories and risk. The analysis draws together these case studies to question how the national-level inquiry arrived at its recommendation in the absence of either the effectiveness of DVDSs being established or clear advocacy in support of a public registry model in Australia. This Australian experience presents valuable learning on the policy-making process and the shifting reliance on evidence-based reform in lieu of publicly favoured punitive responses to domestic, family and sexual violence. The article calls for a return to principled policy making processes, underpinned by a commitment to delivering policy and practice that is seamless, accessible, fair and effective.

Introduction

In April 2021, an Australian Government Inquiry recommended the Commonwealth Government commission research to explore the benefits and risks of the introduction of a register of convicted domestic and family violence (DFV) perpetrators (House of Representatives Standing Committee on Social Policy and Legal Affairs, 2021). At the time of the Inquiry’s recommendation, only one Australian jurisdiction had a domestic violence disclosure scheme (DVDS) in operation and no Australian state or territory had a publicly accessible domestic violence perpetrator register. A public register, if implemented, would represent a significant shift in the approach taken to achieving perpetrator accountability and better ensuring women’s safety in Australia. Beyond representing a stark departure from current DFV policies and practices, this recommendation also presents an interesting case study through which to examine recent trends in the policy-making process for DFV in Australia.

The merits and limits of DVDS have been scrutinised elsewhere (see, inter alia, Duggan, 2019; Duggan & Grace, 2018; Fitz-Gibbon & Walklate, 2017; Greene & O’Leary, 2018; Hadjimatheou, 2022), as have the risks and benefits of public registers for DFV offenders (Young, 2011). What this article seeks to do is to contribute to a better understanding of the policy-making process in Australia, utilising the DVDS and perpetrator registers as case study examples. In doing so, it builds on previous analysis by Walklate and Fitz-Gibbon (2018) on the violence(s) of ‘northern theorising’ and the policy transfer process in relation to violence against women in the global south.

Specifically, this article traces the decade leading up to the recommendation cited above and the significant variance in policy and practice across Australian state and territory jurisdictions. To do so, it offers a critical analysis of the outcomes of two major state-level inquiries, which did not recommend the introduction of a DVDS or a public offender register. These case studies are presented alongside a contrasting case study of two other Australian states which, in the same five-year period, adopted a DVDS with the stated objective of improving women’s safety through the provision of greater information about perpetrator histories and risk. The analysis draws together these case studies to question how the national-level inquiry arrived at its recommendation in light of the relative lack of evidence of the effectiveness of DVDSs in Australia or elsewhere, and the limited advocacy in support of this policy. The Australian experience presents valuable learning on the policy making process and the shifting reliance on evidence-based reform in lieu of publicly favoured punitive responses to domestic, family and sexual violence. The discussion and conclusion call for a return to a principled policy making processes, underpinned by a commitment to delivering policy and practice that is seamless, accessible, fair and effective. Put more simply and succinctly; in order for policies to work they need to be evidence-based.

Domestic and family violence policy in Australia

The last decade has seen unprecedented policy attention paid to the issue of DFV in Australia (Fitz-Gibbon, 2021). Importantly, the policy approach appears to have consolidated the previously observed tension between a gendered and non-gendered framing of DFV (Murray & Powell, 2009), at least at the federal level. There has been extensive activity nationally as part of the commitment to deliver Australia’s first National Plan to Reduce Violence against Women and their Children 2010-2022 (COAG, 2010) and the areas of action established by the Council of Australian Governments (COAG) advisory panel on reducing violence against women (see COAG, 2016). States and territories have played a large role in the policy and law reform project – indeed, reflecting on the role of federalism in feminist DFV policy making, Chappell and Costello (2011: 645) observed that Australian ‘states and territories have maintained policy capacity in relation to violence against women and have used it to develop some innovative approaches to the problem – both in terms of law and policy reform’. In addition, over this period, there have been numerous inquiries held at the national and state levels to examine policy and practice responses to, and the prevention of, different forms of DFV. These inquiries have varied significantly in breadth and depth. For example, the 2020-2021 Australian Government Inquiry into Domestic, Family and Sexual Violence was established as a parliamentary inquiry with extremely broad Terms of Reference (for discussion on the role of Terms of Reference in feminist law reform, see Graycar & Morgan, 2005; Wangmann, 2022). Likewise, at the state level, the 2015 Special Taskforce on Domestic and Family Violence in Queensland (2014-2015) was set up with the broad mandate to report on ‘on how the system could be improved and future incidents of DFV could be prevented’. The Victorian Royal Commission into Family Violence (RCFV, 2015-2016) Terms of Reference contained a mandate to inquire into and report on how response efforts across the whole system could be improved, and how DFV could be eliminated.

In contrast, other Inquiries at both the national and state level have sought to examine specific points of the system (for example, the Joint Select Committee on Australia’s Family Law System, 2021) or the merits of individual approaches to reform (for example, the NSW Joint Select Committee on Coercive Control, 2021). Most recently, consultation efforts conducted to inform the next National Plan to end Violence Against Women and Children have provided detailed documentation of the policy and practice reform views of over 500 stakeholders and victim-survivors’ advocates across Australia (Fitz-Gibbon et al., 2022a, 2022b). The commitment to raising awareness in this area has also been demonstrated nationally through the appointment of two victim-survivors of violence against women and children to the high-profile position of Australian of the Year. Rosie Batty was appointed in 2015, and Grace Tame was appointed in 2021 (on the influence of victim-survivors in shaping policy, see Wheildon, True, Flynn & Wild, 2022).

A plethora of reform agendas have emerged as a result of these commissions of inquiry. In this unprecedented period of policy attention, there has however been relatively limited examination of the policy making process in and of itself. While there has been substantive commentary and research on the merits or otherwise of specific approaches to reform there has been less scholarly interest in the process through which these recommendations and policy come to be. It is this point of the policy making process that is the focus of this paper. In doing so, we seek to build on the work of Graycar and Morgan (2005), Naffine (2019), Quilter (2020) and other feminist scholars and criminologists who have drawn attention to the gendered processes of reform and law making, and in turn, their gendered impacts. Specifically, we utilise McNamara and colleagues’ (2019) typology of processes of criminalisation as a starting point from which to examine the range of DFV policy making processes. McNamara et al. (2019) propose six categories of process – (1) judge-made, (2) single-stage executive driven/controlled, (3) internal government agency initiative, (4) mandatory statutory review, (5) government appointed inquiry/review, and (6) independent review by standing commission/committee.

Building on this typology, Quilter (2020) uses these categories to consider the criminalisation of non-physical forms of DFV. We refer heavily to Quilter’s work and the proposed typology in this article to examine processes by which reforms beyond the criminal law, namely the DVDS and perpetrator registers, have come to surface in recent years. In doing so, we specifically scrutinise the relevance of three of the six processes (single-stage executive driven; internal government agency initiative; and independent review by standing commission/committee) outlined by McNamara et al. (2019) and Quilter (2020), and critically examine the merits by which different policy making processes have given rise to significantly different DFV policy directions across Australian states and territories in recent years.

Policy making as a response to victim-survivor driven advocacy: The English experience

In order to set the scene, it is helpful to first step outside of the Australian context and examine how the DVDS first came to be developed and introduced in England and Wales. Arguably this was a process which clearly demonstrates one of McNamara et al.’s (2019) typologies – single stage, executive controlled reform, which Quilter describes as tending to be ‘fast and driven by Cabinet with limited or no opportunity for consultation or independent input’ (2020: 112).

Noting that this approach to policy or law making typically gives rise to reactive, knee-jerk and punitive criminal justice policies, Quilter (2020: 113) cites, among other examples, the rise of serious sex offender schemes. She explains that often such speedy reforms arise in response to ‘tragic’ acts of fatal violence (such as intimate partner homicides or the killing of a child) or as a specific response to readily ‘demonised groups’ (such as terrorists or gang members) (Quilter, 2020: 113). Here, ‘quick fix’ legislation is readily introduced by Parliament to curry favour in response to a clear community identified tragedy or threat (Quilter, 2020: 113). One of the earliest examples of ‘quick fix’ legislation (also an early example of a victim-named law; a theme that is returned to below) is Megan’s Law.

Megan’s Law was first passed in New Jersey (USA) in 1994 following the rape and murder of seven-year-old Megan Kanka by a known child sex offender who lived next door. After she was killed Megan’s parents spoke publicly about the belief that they would have been able to prevent their daughter’s killing had they known about the offender’s prior convictions for sexual offences. The legislation was federally ratified in 1996 as an amendment to the existing Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act of 1994. Megan’s Law requires convicted sex offenders to register with the police who then share their information (e.g. their home address) with the local community. The objective of the legislation is to deter future offending by reminding sex offenders that they are being monitored, and to encourage vigilance within the community. Despite varying iterations of what are more broadly known as sex offender registration and notification (SORN) laws across the USA, Megan’s Law has come to be used as the ‘umbrella term’ (Simpson, 1999). What the various iterations of Megan’s Law have in common is the lack of evidence to support the proclaimed deterrent effect (Zgoba, Jennings & Salerno, 2018).

The campaign to introduce ‘Megan’s Law’ gained significant popularity and it is noteworthy that there were no legislative hearings which considered the impacts that a law of this scope may have on the affected sex offenders and/or the public (Dugan, 2001). As Quilter highlights, this is a typical feature of reforms that result from individual cases whereby the ‘speed’ with which the reforms are introduced is used symbolically by government to imply that it ‘is taking community concerns seriously, means business and is “in control” of the problem – rather than what it often does signify: a lack of understanding of the complexity of the legal and social issues and a willingness to make law “on the run”’ (Quilter, 2020: 114).

Representing a similar instance of single stage reform, and mirroring Megan’s Law, the 2000 abduction and murder of eight-year-old Sarah Payne by a convicted sex offender, led to a campaign by Sarah’s parents in partnership with the News of the World newspaper for the introduction of a child sexual offender disclosure scheme in England and Wales (Lipscombe, 2012). The law reform campaign, referred to as ‘For Sarah’, focused on the need for parents to be able to request access to information about child sex offenders that live in their area. While the government initially spoke out against the introduction of ‘Sarah’s Law’ (BBC News, 2001), the media campaign ignited significant public disquiet and demands for the government to enact a version of Megan’s Law (Dugan, 2001). The eventual UK legislation differs somewhat from the publicly accessible US version. It does not provide access to the name and address of local sex offenders; rather it provides a scheme through which members of the public can ask the police whether an individual (a neighbour or family friend, for example) is a convicted sex offender (Dugan, 2001; Lipscombe, 2012). The only notable similarity is that the law is named after an individual victim. ‘Sarah’s Law’ was introduced as a pilot in 2008 and in August 2010 the Home Office rolled the scheme out across all 43 police areas in England and Wales.

It is important to note that this kind of reactive policy response in England and Wales did not emerge in a vacuum. Rhodes (1997) has commented on the shift from Government to governance in the policy making process in which intra-organisational networks (public, private and voluntary sectors) had an increasingly diffuse and opaque influence on the policy process by the early 1990s and nowhere was this more apparent than in relation to victims of crime (Walklate, 2001). By the early twenty-first century such processes were increasingly less opaque, and this shift was associated with an increasing policy commitment to rebalancing the criminal justice system away from the offender toward the victim-survivor. Characterised by Walklate (2012) as courting compassion, this move also invoked victim-survivors as victims’ champions. For example, Sara Payne was appointed to the role of victims’ champion in January 2009 in recognition of her significant advocacy following the abduction and murder of her eight-year-old daughter, Sarah. The shift towards ‘courting compassion’, as Walklate describes, also had evident links with compassionate conservatism laid bare by Norman and Ganesh (2006). It is within these political and policy processes that the grip on making policy on the back of individual suffering has its roots and these roots were deep by the time of the killing of Clare Wood.

The 2009 killing of Clare Wood by her estranged partner, George Appleton, attracted significant media attention across England and Wales, not least because of the attention it directed at police failings in the investigation of domestic abuse allegations (see further, Independent Police Complaints Commission, 2010), but also due to the national reform campaign which followed, led by Clare’s father, Michael Brown. Clare’s father was steadfast in the belief that if a DVDS had been in place prior to his daughter’s killing, she would have had the information needed to secure her safety, preventing her death. The campaign for Clare’s Law – the first DVDS worldwide – was largely spearheaded by Brown in what Grace (2015: 26) has since referred to as a ‘PR success’. Indeed, in less than two years the campaign gathered such significant momentum it succeeded in the introduction of a DVDS pilot in 2011, which was later rolled out across England and Wales in March 2014.

Still referred to in England and Wales as ‘Clare’s Law’ the scheme did not come about through a process of assessing the evidence-based need for, nor the effectiveness of, such an approach. Nevertheless, the very existence of the DVDS in England and Wales, in and of itself has since been used by several countries, including Scotland and New Zealand, as evidence of the need for such a scheme, despite the highly politicised and knee-jerk policy process out of which it grew. Such is the lure of comparative policy glancing, whereby countries often look to their comparable neighbours for ideas on adaptable policies and reforms rather than looking in depth for evidence of their impact in practice. In the case of Clare’s Law, as noted by Walklate and Fitz-Gibbon (2018), in the years that followed the scheme travelled ‘in the absence of any supporting evidence as to its efficacy … [E]vidence of implementation has been substituted and represented as evidence of positive impact. The question remains: why might exporting without a license … be problematic?’

As intimated above, the policy-making process by which Clare’s Law was introduced in England and Wales gelled well with the already existing politicisation of compassion. However, it was also a further example of the emergence of ‘named’ laws in relation to gender-based violence more broadly, and policy processes that are reactive to individual cases, ‘single stage, executive controlled’ as Quilter (2020: 112) observes. The efficacy of this approach to policy-making has been subjected to some scholarly analysis with critics arguing there is a tendency for such laws to reinforce ‘a persistent and troubling image of the crime victim as young, white, female, and middle class’ (Wood, 2005: 1). Such naming results in processes of individualisation and the individualisation of crime(s). Yet many such crimes are collectively experienced over and through time by all women, albeit mediated and compounded by a wide range of socio-economic and structural variables. These concerns about individualised naming were raised nearly a decade prior to the introduction of Clare’s Law and its advocacy, but nonetheless, clearly neatly map onto the case utilised as the springboard for this policy in England and Wales.

The introduction of ‘named’ laws has occurred to varying degrees in the UK, USA and Canada in recent decades alongside the rise of feminist strategies to improve responses to different forms of violence against women and children. Indeed, the process of naming a law or a policy has been viewed as an important feminist strategy (Collins, 2001), particularly in the evolution of justice system responses to different forms of violence against women. Indeed, early second wave feminist campaigns were concerned with naming collective experiences of such violence(s) as violence, in order to secure improved justice responses to such experiences and to challenge the then dominant individualising, stereotypical responses associated with, for example, victim precipitation: ‘she asked for it’. Yet as compassionate conservatism took more of a hold especially in the USA, there came with it a punitive turn in which naming laws after individual victims captured political and policy processes.

Linking back to Clare’s Law and the focus of this paper, there is a concern that policies introduced through ‘single-staged, executive controlled’ processes, often on the back of campaigns which seek to introduce a policy named after an individual victim, preclude opportunities for meaningful consultation and debate against its introduction. This is particularly apparent in the case of family-led law reform campaigns which follow the high profile killing of an individual, as in the case Clare’s Law in the UK. In these cases, a significant concern emerges that the policy making process becomes about therapeutic grieving for the victim and a symbolism of the wrong committed against them, as opposed to an evidence-based reflection of what would be effective in preventing future violence. In contrast to this knee-jerk, politicised policy process, we turn now to the depth of the reform process that occurs when policies are considered and introduced via McNamara et al.’s (2019) sixth category of process: independent review by standing commission/committee.

Policy making by whole of system inquiry: The Victorian and Queensland experience

Quilter defines the category of independent review by commission/committee as ‘a process sometimes characterised as “textbook” or “best practice”, which has as a “centrepiece” research undertaken by an expert organisation that is (relatively) independent of government (2020: 113). The RCFV, which was established in February 2015 and completed in March 2016, maps well onto Quilter’s description of an independent review by commission/committee (see also McNamara et al., 2019). The RCFV was initiated with the appointment of a Commissioner and two Deputy Commissioners to conduct an independent commission of inquiry into what was needed to disrupt the prevalence of, and substantially improve responses to, family violence among all communities and in all geographic locations across the state. Just over a year later, in March 2016 the RCFV handed down its Final Report, containing 227 recommendations proposing a whole of system transformation of responses to, and the prevention of, all forms of family violence state-wide. The Report, and its road map for reform, represents arguably the most significant exploration of family violence prevention, early intervention, and responses in Australia and internationally. The Commission’s final report drew on its consideration of over 1,000 written submissions, as well as the findings from 44 group sessions attended by approximately 850 people, and 25 days of public hearings during which 220 witnesses provided evidence to the Commission (RCFV, 2016). The resulting recommendations set the blueprint for ‘a complete transformation’ of responses to, and the prevention of, family violence state-wide (Fitz-Gibbon, 2016).

The Commission’s final report spanned seven volumes as well as a Summary and Recommendations report. Consideration of the merits of a DVDS appears in Volume 1 of the Commission’s report and is given one page, which is primarily dedicated to a summary review of the NSW pilot scheme (further details on this pilot are provided in the second half of this paper). The RCFV notes that Victoria Police, the state-wide police service responsible for responding to family violence incidents, supported consideration of the introduction of a DVDS in their submission to the commission, stating: ‘the Royal Commission may consider a legislative regime based on the English “Clare’s Law” ... [S]uch an initiative could break the all too common pattern of perpetrators harming successive partners and avoid exposing unwitting adults and children to known perpetrators of family violence’ (RCFV, 2016, Volume 1: 115).

While they are not referred to in the Final Report, there was at least one other submission provided by a community organisation which likewise recommended the merits of a Victorian DVDS be considered as part of the Commission’s process. Perhaps in the clearest indication of a lack of interest in its implementation in Victoria, the final report of the Royal Commission – despite totalling 2,082 pages – does not tease out the merits of a DVDS beyond the one-page summary. Among the Commission’s 227 recommendations, there are no recommendations which propose a DVDS or a similarly structured scheme.

One year prior to the release of the Victorian Royal Commission’s final report, the Special Taskforce on Domestic and Family Violence in Queensland (2015a, hereinafter Special Taskforce) likewise also stopped short of recommending the introduction of a DVDS and similarly paid limited attention to the merits of such a scheme throughout its state-wide inquiry. The Queensland Special Taskforce was established in September 2014 with the broad remit to examine how the whole of the DFV ‘system could be improved and future incidents of DFV could be prevented’. In order to collect its evidence, the Taskforce received written submissions, held an online survey, organised focus groups, roundtables and individual meetings, conducted field visits, and attended two summits with leading DFV experts from across the state.

In addition to the publication of a comprehensive final report, Not Now, Not Ever (Special Taskforce, 2015a), the Taskforce also published outputs throughout their Inquiry including Our Journal (Special Taskforce, 2014a) presenting the stories of victim-survivors who engaged with the Taskforce; Tell the Taskforce (Special Taskforce, 2014b), a report analysis based on information received through a whole-of-community survey for those responsible for supporting individuals impacted by DFV, and a Research Report (Special Taskforce, 2015b) presenting the findings from a series of focus groups conducted with community groups. None of these outputs – despite bringing together the key findings and reform options advanced through an extensive state-wide consultation process – mention either the DVDS or a public register at all. Reflecting the absence of this policy option from the consultation undertaken, while the Special Taskforce made 140 recommendations in its final report, none refer to the need to introduce – nor explore the merits of – a DVDS or a public register.

These two commissions of inquiry arguably represent a ‘deep dive’ approach to building an evidence-based understanding of what may or may not be effective in relation to policy responses to DFV rather than a knee-jerk or single event approach. Neither offers any substantive insights on DVDS and indeed they are notable for the absence of any serious consideration given to this kind of reform. This is particularly worthy of comment given both commissions of inquiry occurred within 24 months of the introduction of the DVDS in England and Wales and were thus working at a time when the campaign for Clare’s Law was in full swing across the UK. Moreover, the Royal Commission in Victoria, placed great emphasis on the importance of robust information sharing protocols across all agencies engaged with DFV (McCulloch et al, 2020), and of course, both DVDS and public offender registers rest on an assumption of quality, effective and timely information sharing (Walklate & Fitz-Gibbon, 2023). So, the quiet disinterest in a DVDS in Victoria is especially noteworthy. However, the timing of these commissions, alongside the demonstrated undertaking of a concerted and in-depth consultation process ahead of the reform agendas being set in either Victoria or Queensland, underlies the value of independent review by commissions, as categorised by McNamara and colleagues. In these examples, both were centred on extensive consultation and in-depth inquiry. In doing so they demonstrate the value of ‘slow, evidence-based pace of change’ in moving away from policies that are reactive and/or emotionally driven (Quilter, 2020: 116). Quilter (2020: 116) notes, somewhat hesitantly, that there may be value in the reactive law reform processes, which can demonstrate to the public the urgency required to address a social problem. However, what was evident through both the Victorian Royal Commission and the Queensland Taskforce was an increase in community awareness of the problem of DFV and sustained media attention upon the commissions of inquiry, their findings, and subsequent reform agendas. This was achieved, and the public’s attention was captured, without falling into the trap of favouring populist reform.

It is important to note that in Queensland, prior to the work of the Not Now, Not ever Taskforce, the Queensland Law Reform Commission (QLRC) (2017) conducted a specific inquiry into the merits of a DVDS. Representing another example of policy making by a whole of system inquiry, the focused nature of the QLRC’s inquiry is notable as it provides an example of how this approach to law reform can be undertaken with a narrow but principled focus. The Inquiry’s TOR involved a singular focus on DVDS: ‘The Attorney-General asked the Commission to review and investigate whether or not to introduce a DVDS in Queensland and, if so, to consider a number of specific matters relevant to any proposed scheme’ (QLRC, 2017: i). In contrast to the RCFV and the work of the Not Now, Not Ever Taskforce which were both conducted at scale, the QLRC’s inquiry into DVDS was similarly independent but focused on the merits of a single policy from the outset. This is not to suggest that the Commission’s findings were not detailed – the final report spanned 185 pages and reflected the views presented across 45 submissions provided to the Inquiry and consultation meetings conducted with over 130 individuals and sector representatives (QLRC, 2017: ii). The QLRC Inquiry (2017) represents one of the only singularly focused reviews of the merits of a DVDS in Australia and internationally. Stating that the majority of submissions received opposed the introduction of a DVDS scheme, the Commission concluded that ‘a DVDS is unlikely to strengthen Queensland’s response to domestic and family violence. Any potential benefits of a DVDS in Queensland are limited, and are outweighed by the potential risks and disadvantages of such a scheme’ (QLRC, 2017: iv).

Policy making in reactive response to international practice: The domestic violence disclosure scheme in South Australia

Only two state jurisdictions in Australia have to date introduced a DVDS – New South Wales (NSW) and South Australia (SA). In the case of NSW, the scheme was piloted and has since been abandoned. In sharp contrast, in SA the scheme has progressed through the pilot phase and received additional funding and support from the state government. This section of the article traces the introduction of the DVDS in each Australian jurisdiction, documenting the ways in which international practice was used as evidence of effective operation and of the need to inform policy making in the Australian context.

It is not unusual for Australia to look beyond its borders to seek inspiration at the least, to inform the development and implementation of new policies in the field of violence against women (on this, see further, Walklate and Fitz-Gibbon, 2018). Goodmark (2015) refers to the frequency with which policies on violence against women have been transferred from one country to another – typically without consideration given to context-specific factors – as ‘exporting without a license’. The tendency to do so is clear in the beginnings of the DVDS in both Australian jurisdictions, which mimic many of the emotive and reactive justifications utilised upon the Scheme’s introduction in England and Wales. Indeed, at the time of the scheme’s design and introduction in SA in 2018, the then SA Attorney-General was quoted- as saying that:

The scheme, which was first introduced as a pilot in 2018 and later received extended funding under the activities of the Fourth Action Plan of the National Plan to Reduce Violence against Women and their Children 2010-2022 (Department of Social Services, 2019), has not been the subject of any state-specific public consultation process, commission of inquiry or discussion paper. To this end, the process through which the DVDS was implemented in SA most closely resembles an ‘internal government agency initiative’, a process by which ‘Legislative changes that have their origins in the discussions and workings of government departments … typically proceed on the basis of internal deliberation, with little or no external consultation’ (Quilter, 2020: 113). While the uptake of the scheme – utilised by just over 1,000 applicants in the first three years (Department of Human Services, 2021) – has been used as evidence of its effectiveness in improving women’s safety, it is notable that there is an apparent lack of evidence supporting the ongoing practice of this scheme in SA.

In contrast, the pilot DVDS scheme introduced in NSW in 2016 was accompanied by an evaluation. That evaluation offered a detailed assessment as to the potential barriers to the scheme ranging from implementation ‘teething problems’ to lack of knowledge on the part of police officers about the scheme. Perhaps most tellingly the evaluation brought to the fore the challenges faced by ‘hard to reach’ communities, including First Nations communities (Urbis, 2018). It is a moot point whether this evaluation was critical to the government’s decision to discontinue the scheme, however, perhaps what were rather less moot were the economic costs involved in its operation (Urbis, 2018). Wangmann (2016: 324) has pointed out that:

To date, there has been minimal evidence collected on practitioners' and/or victim-survivors’ experiences of either administering or accessing the DVDS in SA and elsewhere more generally (with the exception of the work of Barlow et al. (2021) in England and Wales, and the small number of victim-survivor views presented in the Urbis (2018) evaluation in NSW). Nevertheless, this reactive policy response, in the light of international developments, appears to have remained robust in SA and to have garnered significant support among local specialist practitioners. This is a point that will be returned to in the conclusion.

Policy recommendations in the absence of evidence and/or sustained advocacy: Perpetrator registers in Australia

Here we return to the aforementioned ‘Independent review by standing commission/committee’ law reform process. Whilst Quilter (2020) emphasises this process as conducted by an expert organisation, a return to the original typology as set out by McNamara et al. (2019: 393) reminds us that this can:

This category of law reform process has been discussed in relation to the Victorian and Queensland examples, however, we consider the national inquiry separately here given the questionable basis on which it made a recommendation for a public register. This example has connections to aspects of other law reform processes such as single-stage executive driven and internal government agency processes.

In June 2020, the Minister for Women referred an Inquiry into family, domestic and sexual violence to the House of Representatives Standing Committee on Social Policy and Legal Affairs. Running for less than a year, the Inquiry reported in March 2021, making 88 recommendations to achieve ‘a more coordinated and comprehensive approach’ to domestic, family and sexual violence in Australia (Parliament of Australia, 2021). Among the recommendations, Recommendation 83 may be easy to skip over – particularly given it does not link back to any policy or practice recommendations that emerged strongly through written submissions or verbal evidence provided during the Inquiry. The Recommendation states: ‘The Committee recommends that the Department of Social Services commission research on the potential benefits and risks to victim-survivor safety of the establishment of a publicly accessible register of convicted family, domestic and sexual violence offenders’ (House of Representatives Standing Committee on Social Policy and Legal Affairs, 2021: xliv).

The background justification provided for this recommendation, while brief, includes:

These short paragraphs represent the only mentions of a public register within the body of the 471-page final report. It is also notable that there is only one submission (Submission 158: Feminist Legal Clinic Inc.) – among the 298 submissions and 55 supplementary submissions received – that recommends this approach for consideration. In making the above brief remarks on the need to commission research on the benefits and risks of a public register for DFV offenders, the Inquiry did not cite any relevant research or practitioner evidence which points to the merits or otherwise of such an approach. Nor did the inquiry refer to the DVDS underway in SA or the scheme recently piloted – at the time of the Inquiry’s report – in NSW. Despite both representing schemes of similar approach and scope, the connection between the two is absent from the Report and Inquiry process, although it is important to note that DVDS were only referred to in one submission (Submission 22: Australian Local Government Association) and one public hearing (by South Australia police).

The inclusion of this recommendation provides an interesting point of discussion. Feminist researchers have long observed the influence of Father’s Rights Groups on family law reform in Australia (see, for example, Graycar, 2000). These groups have always been and continue to be vocal in family-related law reform inquiries. Thus, despite the fact that changes to family law in 1996 and 2006 were largely the result of political pressure placed on the government by Father’s Rights Groups (including acts of terrorism) and a change of (conservative) government, the groups' concerns are at least well documented across various family law inquiries – offering a basis for why reforms were recommended. The same cannot be said of the recent recommendation to commission research to explore the merits and risks of a DFV public offender register. The sixth category of law reform process is often associated with a slow, considered and evidence-based consideration of the issue at hand, with recommendations born out of submissions, expert testimony and research. What does it mean when commissions or committees make recommendations disconnected from such evidence? Morgan (2012) reminds us of the importance of social context in law reform processes – yet, the extent to which this recommendation reflects the social context of DFV is questionable due to the fact that it was not widely raised in submissions to the inquiry. The recommendation itself speaks to the early observations of Graycar and Morgan (2005: 403) on the over-reliance on recommendations for legislative change in Australian law reform inquiries – a focus that often comes ‘at the expense of other ways of engaging with change’. This does not, however, explain why the recommendation was made despite its absence in submissions.

As above, McNamara et al. (2019) describe parliamentary committees as having an ‘arm’s length’ from authority and a ‘high’ degree of independence from government. However, it may be that this degree of independence is lesser than that of, for example, a Royal Commission. Whilst this may, in theory, help us understand where recommendation 83 came from, the recommendation was in no way harnessed by the then-government in the lead-up to the 2022 federal election, nor was it widely discussed in the media. To this end, the recommendation’s origins remain somewhat of a mystery. However, it does still represent another process through which policy reform has emerged in Australia – and in the authors’ views, perhaps the most worrying approach whereby instead of evidence and/or advocacy, punitive approaches to addressing forms of gender-based violence can gain traction. Moreover, McNamara and colleagues (2019: 393) ‘resisted the urge to produce a more fine-grained typology with a larger number of categories’ and this example highlights some of the limitations of using a more broadly developed typology. Recommendation 83 may be an anomaly of course. However, it is worth observing the practices of future standing committees and the processes through which they make recommendations for reform to see whether this is the case.

It remains to be seen whether or not a policy champion for this approach (Bainbridge, 2021) will emerge, but it is notable that in the period of time since the Inquiry’s report, several countries have moved to introduce similar schemes. For example, in England, members of parliament have committed to the introduction of a high-risk domestic abuser register, modelled on the sexual offender register (UK Government, 2023). This register would require convicted offenders to advise police of changes to their relationship status, including arrangements with new intimate partners and any children. There are also numerous examples of such registers across the USA.

While we do not in any way suggest that international policy movement is tied to the Australian Inquiry’s recommendation, given the emergence of like policies in countries with comparable jurisdictions, there is a risk that in time the recommendation itself may become misunderstood as evidence of the merits of the scheme and the need for its consideration in Australia.

Conclusion: Returning to a principled approach to reform

In 2010 the Australian Law Reform Commission (ALRC) and the New South Wales Law Reform Commission (NSWLRC) released a joint report on Family Violence – A National Legal Response. While that Report and the recommendations contained within it were focused largely on improving legal system responses to all forms of family violence, the Commissions did set out four principles of reform, which they had used to underpin all recommendations made in their report. While it is not within the scope of this paper to examine the recommendations of the ALRC/NSWLRC Report, these principles provide a sound framework on which we argue Australian policymakers should reflect, since there is evidence that they progress efforts to improve responses to family violence. Over 15 years later, and at a time when the last decade in Australia has witnessed an extraordinary amount of reform activity, we argue there is a need to return to each of those four principles – seamlessness, accessibility, fairness, and effectiveness – in support of a move away from some of the problematic consequences of the kinds of policy-making and policy transfer processes that are outlined by McNamara et al. (2019), Quilter (2020) and Goodmark (2015), amongst others. In the absence of adherence to these principles, as this paper has illustrated, policies introduced to improve responses to DFV remain incoherent and inconsistent, both at the national and the local level.

Deploying McNamara and colleagues’ model to this policy landscape has cast much light on the unevenness of this landscape, some of which is directly attributable to the mode through which these policies have been introduced and developed. Interestingly, despite the rapidity with which much information flows around the globe in the twenty-first century, few states in Australia have taken up the reins of DVDS as a constituent element in their portfolio of responses to DFV. This is interesting in and of itself and worthy of further investigation. As was intimated above, why this has occurred remains less than clear though it is important to note that the DVDS scheme in place in South Australia includes a partnership approach between the specialist support agency and the police which adds some different nuance to the policy design process. Moreover, whilst Australia has not been immune to campaigns to name laws after individuals, the impact of this ‘courting compassion’ agenda seems to vary from state to state. At the same time in Australia, as elsewhere, the intransigence of being able to devise and implement appropriate and meaningful policy responses fit for purpose for First Nations women and other marginalised community groups remains (see, inter alia, Stubbs & Wangmann, 2015). Thus, in some respects, through the provision of a policy case study, this paper adds some nuance to McNamara and colleagues’ (2019) model of understanding differences in the policy-making process. It is also important to note the echoes of earlier literature on the policy process drawing attention to the role and influence of policy networks, policy levels, and/or the impact of policy champions (see, inter alia, Jones & Newburn, 2006). Comparative policy glancing remains ripe for further excavation.

Of course, in all of the above, some voices are heard more than others, some voices are silenced, some voices remain hidden, and sometimes particularly prominent voices may claim to speak on behalf of others. It is notable that in Australia, like in many jurisdictions globally, there has been a concerted effort in recent years to more explicitly ensure the voices of lived experiences are included in the policy-making process (Fitz-Gibbon et al., 2022b). For the policies under consideration here, the impacts of their uptake are reflected in the patchy and uneven articulation of the merits of this policy approach across Australian states and territories. The tendency for policy agendas to proceed as if they represent what women victim-survivors may want to ensure their safety is arguably the most disturbing feature of some of the claims made in this particular policy landscape. This is the case across several states and territories in Australia except for those that have spent time, money, and energy on the Royal Commission/Inquiry model. In both Queensland and Victoria, the steps taken to remain accountable to victim-survivor voices are to be celebrated alongside the motivation to ensure the perpetrator is kept in view and accountability is upheld at each point of the system. This approach lends itself to the observations of Morgan (2012: 352), who put forth the argument that ‘when law reform … is driven by the social context in which the legal phenomenon of interest occurs, one is more likely to get progressive legal change’, as well as the principles set forth in the ALRC and NSWLRC report (2010). This is a model that, if transferred to other jurisdictions across the globe, may well travel better if the aim is to design and implement a response system of benefit to those victim-survivors seeking safety from men’s violence(s).

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* Professor, Faculty of Business and Economics, Monash University, Australia. Email: Kate.FitzGibbon@monash.edu.

** Professor, Department of Sociology, Social Policy and Criminology, University of Liverpool, UK. Email: s.l.walklate@liverpool.ac.uk.

*** Lecturer, Department of Sociology, Social Policy and Criminology, University of Liverpool, UK. Email: Ellen.Reeves@liverpool.ac.uk.

Exploring the Outcomes of Divergent Approaches to the Policy Making Process: Domestic Violence Disclosure Schemes and Perpetrator Registers in Australia

Abstract