Summary

Following publication of the Royal Commission into Family Violence’s final report in 2016, the Victorian Government introduced new provisions into the Family Violence Protection Act 2008 (Vic) (the Act) to better protect family violence victim survivors and hold perpetrators accountable. Parts 5A and 11 of the Act provide the basis for the Family Violence Information Sharing Scheme (FVISS), the Central Information Point (CIP) and the Family Violence Multi-Agency Risk Assessment and Risk Management (MARAM) Framework. These reforms support information sharing between agencies (known as information sharing entities or ISEs) and promote system-wide consistency in identifying, assessing and managing family violence risks.

The Act requires that Parts 5A and 11 be reviewed, with the focus for Part 5A being on the third to fifth years of its operation and the focus for Part 11 being on its first five years of operation. This report outlines the findings of the legislative review. We aimed to determine the extent to which the legal framework has been effective in achieving its objectives and whether there have been any adverse effects, including for diverse communities. As our focus was on the legal framework, we did not examine the effectiveness of the Act’s implementation by government agencies. However, we have been informed by how the legal provisions are operating and being applied in practice.

Our review approach incorporated stakeholder and survivor advocate consultations, a public call for submissions process, and a review of organisational information and legislative materials. In conducting the review, we examined the provisions in Parts 5A and 11 and related material such as the Family Violence Protection (Information Sharing and Risk Management) Regulations 2018 (the Regulations), guidelines required to be issued in relation to the FVISS (the Ministerial Guidelines) and the legislative instrument approving the MARAM Framework.

An overview of the report’s chapters is set out below. A summary of recommendations is also provided at the end of this section to outline the key changes we recommend to each aspect of the legal framework. A full list of numbered recommendations, by chapter, is included at the end of the report.

Chapter overview

Chapter 1: Clarity of information sharing legislative framework

This chapter begins by examining the clarity of the legal provisions underpinning the FVISS. We found that Part 5A of the Act is sufficiently clear in setting out the legal requirements to share information, while the Act’s information sharing principles support ISEs to make decisions in practice.

However, we identified practitioner confusion and uncertainty in relation to aspects of the Act’s terminology, including the lack of a definition for ‘relevant’ information and inconsistent terminology between the Act and the MARAM Framework. Although this can lead to inconsistent practices, we do not recommend changing the Act’s terminology because doing so may undermine the Act’s objectives and have a negative impact on victim survivor safety. We recognise the value in the Act’s approach in giving practitioners maximum scope to assess relevancy based on the specific circumstances of each case and allowing for the greatest amount of information to be shared.

The role of court personnel and bodies as ISEs was also identified as an area of practitioner uncertainty. Noting there is little guidance available on the role of courts, we recommend that the Ministerial Guidelines include further guidance about the courts’ participation in the FVISS.

This chapter also examines the extent to which the Ministerial Guidelines support clarity and practitioner understanding. We found that although the Ministerial Guidelines satisfy the Act’s requirements, they are difficult to navigate and are not readily understood by some practitioners. They are not always meeting their purpose of assisting ISEs to understand their obligations to ensure information is shared appropriately and responsibly. This limits their overall effectiveness. We recommend amendments to the Ministerial Guidelines to increase utility and improve understanding.

The final section in this chapter explores the approach in the Regulations to prescribing organisations as ISEs. This approach is complex but comprehensive, and we believe it should be maintained. However, we identified challenges relating to the prescription of some non-legal programs within legal services that operate under a multidisciplinary approach. Although we do not make any recommendations on this matter, we support ongoing dialogue between the Victorian Government and community legal services to balance the aims of equal access to relevant family violence information with providing holistic services to clients.

Chapter 2: Effectiveness of Part 5A in achieving its objectives

In looking at how effective Part 5A has been in achieving its objectives, this chapter examines the extent to which Part 5A has promoted cultural change, facilitated information sharing and service coordination and supported better informed decision making about family violence risk.

We found that Part 5A is supporting a positive cultural shift away from maintaining perpetrators’ privacy towards sharing information to keep victim survivors safe and hold perpetrators accountable. The legislative basis of the FVISS in Part 5A, and the protection for information sharing done in good faith, have increased practitioner confidence in requesting and disclosing information and helped remove barriers to information sharing.

Reflecting this cultural shift, the volume of information sharing in response to a request (‘reactive’ sharing) has increased in the third to fifth years of Part 5A’s operation, with very little unauthorised information sharing being reported. Although some ISEs face challenges obtaining information in response to a request, the obligations under Part 5A are strong enough to support organisations to advocate for greater access to information. Increased information sharing has also had a positive impact in supporting ISEs to make better informed decisions about family violence risk.

However, while voluntary or ‘proactive’ information sharing has also increased, it is not occurring as often as it should. This is limiting the effectiveness of Part 5A. We recommend that the Ministerial Guidelines highlight the ability of ISEs to voluntarily share relevant information with other services and provide further guidance on when and how to do so. A greater focus on proactive information sharing will also strengthen collaborative and coordinated practice.

This chapter also examines adverse effects identified in relation to Part 5A. Some organisations implementing Part 5A have introduced new processes and forms for information sharing to support compliance with the Act. This has sometimes contributed to delays in services receiving critical information, negatively impacting on the ability of services to assess risk and prepare safety plans. For information sharing to be effective in protecting victim survivors, it is critical that services receive information in a timely manner. To promote timely information sharing, we recommend that the Act be amended to require ISEs to respond to a request within a reasonable timeframe. We also recommend that the Ministerial Guidelines emphasise the importance of sharing information in a timely manner and include guidance on responding to requests within a reasonable timeframe.

Chapter 3: Impact of Part 5A on victim survivors

This chapter looks at the impact of Part 5A’s provisions on victim survivors. We found that although victim survivors are apprehensive about sharing their confidential information with services, the introduction of Part 5A has not increased their concerns about information sharing.

Victim survivor agency was a significant issue raised by survivor advocates, with some concerned that the consent provisions are not being applied such that victim survivors have agency over the sharing of their confidential information. We found that the principles and consent provisions in Part 5A appropriately recognise the factors that should be considered as part of sharing adult and child victim survivors’ confidential information, with no changes to the Act required. Although victim survivors supported the broader sharing of perpetrator information under Part 5A, we heard that ISEs are not always sharing perpetrators’ confidential information in a way that supports victim survivor knowledge and agency. To highlight its importance, we recommend that the Ministerial Guidelines incorporate information from the MARAM Framework on victim survivor agency and self-assessment of risk.

The interaction between Part 5A and Victoria’s broader privacy regime is also discussed in this chapter, reflecting that other privacy laws apply to some aspects of family violence–related information sharing. We identified two key aspects of Victoria’s privacy laws that we recommend should be expressly outlined in Part 5A to support practitioner understanding of, and compliance with, privacy obligations. These are the obligation for an ISE to inform a victim survivor about when and how their information may be disclosed under the FVISS when collecting their information, and the ability for an ISE to disclose a victim survivor’s confidential information, with consent, to reduce the trauma associated with a victim survivor needing to retell their story.

Chapter 4: Effectiveness of the Central Information Point in achieving its objectives

This chapter examines the extent to which the legal provisions establishing the CIP are sufficiently clear. Although mostly clear, we identified two areas in which the Act could be amended to improve transparency. We found that the Act does not fully address the way in which information sharing by the CIP differs from other information sharing under the FVISS, or how information is used within the CIP team to further the intent of providing consolidated and up-to-date information to a CIP requester (those who can request a CIP report). Further, CIP requesters are not readily identifiable, and the decision making about who is a CIP requester lacks transparency. We recommend that Part 5A be amended to clarify that a purpose of the CIP is to collate information from data custodians (those who provide information for a CIP report) and provide a consolidated report to CIP requesters. We also recommend that CIP requesters be prescribed in regulations to promote transparency.

This chapter also addresses the effectiveness of CIP reports. We found that complete CIP reports that contain consolidated information allow CIP requesters to effectively establish, assess and manage family violence risk. However, the delayed delivery of CIP reports impacts negatively on their effectiveness. To ensure the timely delivery of reports, we recommend that the Act be amended to include timeliness as an object of Part 5A, to require the CIP to respond to CIP requests within a reasonable timeframe and to include factors for the CIP to consider in determining what constitutes a reasonable timeframe. We recognise that ongoing efforts to automate processes within the CIP will also help ensure the timely delivery of CIP reports.

In considering questions of effectiveness, we also found that CIP reports provide less information relevant to risk assessment and management than in the past and that some inconsistencies exist between reports. We do not recommend legislative change to address this issue. Rather, to promote consistency, we suggest a continued focus in ongoing discussions between the CIP data custodians and Family Safety Victoria on developing a shared understanding of information that is relevant for a family violence assessment or protection purpose.

Access to CIP reports is also discussed in this chapter. We found that although CIP requesters’ on-sharing of information from CIP reports with other ISEs can be inconsistent, legislative change is not required because the Act supports the on-sharing of CIP report information in appropriate cases. However, noting that inconsistencies may result from practitioner uncertainty, we recommend that the Ministerial Guidelines provide guidance about on-sharing risk-relevant information. We also found that limited access to CIP reports affects the service response for some victim survivors who do not access services through The Orange Door or other CIP requesters. Although we don’t make any recommendations on this issue, we suggest consideration of expanding access to CIP reports to services that support family violence victim survivors who may be unlikely to access mainstream, government-led programs.

The chapter concludes that the CIP is not meeting its purpose of providing updated information about perpetrators to CIP requesters. Although, again, we do not recommend legislative change on this matter, we suggest that the government continues to look for opportunities to collect and share updated risk-relevant information with CIP requesters in appropriate cases.

Chapter 5: Clarity of legal provisions for the MARAM Framework

In considering the clarity of Part 11, this chapter outlines our finding that the legal provisions are mostly clear. However, the MARAM legislative instrument lacks clarity about what organisations must do to align their policies, procedures, practice guidance and tools with the MARAM Framework, with some stakeholders unclear on what MARAM alignment requires. To provide greater clarity and ensure a consistent understanding of MARAM alignment across sectors, we recommend that the MARAM legislative instrument be amended to outline steps and activities that organisations must take to align.

This chapter also explores the approach in the Regulations to prescribing organisations that must align with MARAM (known as framework organisations). We found that consistency in the prescription of organisations as both ISEs and framework organisations is important to ensure information sharing is informed by an understanding of family violence and relevant risk factors. We recommend that the Act be amended to remove the limitation on government’s ability to prescribe individuals as framework organisations. We also suggest further consideration of the current list of prescribed organisations in light of the need to promote consistency.

We also found that provisions in the Act that require relevant government contracts to include an obligation to align with MARAM have not been used in the way intended. This is because relevant organisations are prescribed in regulations rather than relying solely on contractual agreements. We support this approach and do not make any recommendations on this matter.

Chapter 6: Effectiveness of Part 11 in achieving its objectives

This chapter addresses the extent to which Part 11 has been effective in promoting consistency in identifying, assessing and managing family violence risks. We found that, through introducing the MARAM Framework, Part 11 has supported a shared language for family violence and a focus on keeping perpetrators in view. Where services align with MARAM, there is also greater consistency in risk identification, assessment and management.

However, framework organisations’ inconsistent alignment and a lack of alignment progress is limiting the overall effectiveness of Part 11. To ensure framework organisations are actively working towards alignment and taking specific actions to embed MARAM within their organisation in a timely manner, we recommend that the legislative instrument authorising MARAM be amended to introduce a timeline for alignment activities.

The effectiveness of MARAM annual reporting is also examined in this chapter. We found that annual reporting in its current form does not provide meaningful information or accountability for framework organisations’ alignment with MARAM. We therefore recommend that the Regulations be amended to require annual reporting about framework organisations’ progress against key alignment steps, activities and timeframes.

The chapter notes that we found no adverse impacts relating to the legal provisions in Part 11.

Chapter 7: Other issues and implementation challenges impacting on the Act’s effectiveness

This chapter outlines challenges and concerns raised by stakeholders that were not directly connected to the provisions in the Act but that nonetheless impacted on the Act’s effectiveness. This includes concerns about the MARAM Framework and associated tools, other laws that affect the FVISS, the non-prescription of certain organisations as ISEs and/or framework organisations, and other challenges in implementing the Act. We do not make any recommendations on these matters.

Summary of recommendations

The report makes 16 recommendations aimed at strengthening the legal framework and improving the Act’s effectiveness. Six amendments are proposed to Part 5A and one to Part 11 of the Act. The Ministerial Guidelines require review and simplification, plus some additional guidance covered by six recommendations. There is one proposal to amend the Regulations and another two to expand the legislative instrument authorising MARAM.

Our recommendations focus on five key issues:

• encouraging timely information sharing
• promoting transparency in relation to the CIP
• supporting victim survivor agency
• providing clear and targeted guidance for practitioners
• introducing clearer requirements, timelines and accountability for MARAM alignment.

An overview of the recommendations is provided in Figure 1 below.