F.A.I.R.

The F.A.I.R. 10-Point Plan aims to empower a victim of abuse to survive abuse and break the silence about violence to regain self respect.

The F.A.I.R. 10-Point Plan is a policy to reform the framework of existing family, criminal and related laws to bring the perpetrator to account.

The focus of this F.A.I.R.10-Point Plan policy is on stopping the cycle of violence by creating a fundamental change in the attitudes of lawmakers to reforms of the existing laws and procedures so as to change the role of police in delivering the existing services, and effectively to give the victim control over outcomes whilst ensuring that the perpetrator is given clear choices about accepting responsibility for their abuse.

The basic principle of the F.A.I.R. 10-Point Plan policy is empowerment of all victims to implement an expedited legal process on complaint to give any victim the option of a pro-active, positive, and quick outcome.

This is an oversight in current DV policy. It is well proven in victims’ experience that the criminal justice system cannot provide an expedited level of executive redress for victims of child abuse, paedophilia, property destruction, theft, harassment, physical or sexual assault, or threat of sexual or personal harm, within the family, at home, or in the street, or home invasion. Raising legislative standards to redress this is justified.

The strategy of the F.A.I.R. 10-Point Plan is to publicise the required statutory changes to redress what is demonstrably an unacceptable situation. The current levels of protection provided to victims of violence within families and at home are totally inadequate. Funding to establish administrative intervention to address family and domestic violence by sexual, emotional or physical violence is long overdue. The situation requires Federal and State Parliaments concurrently to enact a "F.A.I.R." commitment to bring basic reforms to Family and Domestic Laws for the improved safety of the individual at home and in the family.

The F.A.I.R. 10-Point Plan project is a proposal to initiate a Federal and State Government Joint Funding policy to adequately finance a victim-oriented approach to redressing domestic violence. This approach would refocus Family and Domestic Laws to emphasise basic Human Rights, which would be guaranteed by a cost-efficient early intervention and achieved by the limited resource of a special alternative dispute resolution (ADR) mechanism specified in the 10 key points of the plan.

Basic human rights and freedoms must not only be ensured by law. They must be enshrined in practice at home for each human being - no matter what race, sex, age or creed. And they must be enacted to provide a new minimum protection for the safety of the individual and families at home.

Draft 1 of the plan commenced the project prior to 1 February 1999.

Draft 8 of the plan - dated 28.1.00 - was submitted to ASERP (Australian Social Economic Rights Project) 2000 for consideration as part of the Community response to the May 2000 United Nations Audit of Australian Social, Economic and Cultural Rights.

Draft 10, August 2003 (incorporating input from community consultation with Melina Magdalena and Dale Street Women’s Community Centre, Port Adelaide, South Australia) is set out in full below:

THE F.A.I.R. 10-Point Plan

The first Australian community project to legislate

HUMAN RIGHTS for the family and at home

by fundamental reform of Family and Domestic Law

A proposal of the F.A.I.R. (Family Abuse -- Instant Response) Service Community Promoter: Ngarrindjeri Elder Dawn Trevorrow

[PLEASE ADVISE THE F.A.I.R. SERVICE IF YOUR ORGANISATION SUPPORTS THE PROJECT]

THE F.A.I.R. 10-Point Plan OFFERS A MINIMUM STANDARD REDRESS FOR ANY VICTIM OF HARASSMENT, PROPERTY DESTRUCTION, CHILD ABUSE, PAEDOPHILIA, THEFT, PHYSICAL OR SEXUAL ASSAULT WITHIN THE FAMILY, OR AT HOME, OR THREAT OF SEXUAL OR PERSONAL HARM, OR HOME INVASION, BY EMPOWERING ANY VICTIM TO INITIATE A PROCESS THAT IDENTIFIES THE RESPONSIBILITY OF THE PERPETRATOR AND BRINGS THE PERPETRATOR DIRECTLY TO ACCOUNT BEFORE A STATUTORY FORUM

Central to the F.A.I.R. 10-Point Plan is the fundamental principle of empowerment for any victim to implement an expedited legal process on complaint, giving the victim the option of a pro-active, positive, and quick outcome.

As is well attested by victims’ experience, the current justice system does not provide for any minimum level of redress for victims of harassment, property destruction, child abuse, paedophilia, theft, physical or sexual assault within the family or at home, or threat of sexual or personal harm, or home invasion. It proves the justified need of legislative standards to do just this.

The strategy of the F.A.I.R. 10-Point Plan is to provide this required statutory redress to change what is demonstrably an unacceptable situation. The protection provided to victims of violence within families and at home is inadequate. The funding to establish administrative intervention to address family and domestic violence by sexual, emotional or physical violence is long overdue.

This situation requires a F.A.I.R. concurrent Federal/State commitment to bring about fundamental reform in Family and Domestic Law for the continued safety of the individual at home and in the family.

The strategy proposes a policy initiative for adequate Federal/State Government Joint Funding to finance a new approach in addressing domestic violence. This approach would refocus Family and Domestic Law to emphasise basic Human Rights. They would be guaranteed by a cost-efficient early intervention. This achievement is possible through the limited resource of a special alternative dispute resolution (ADR) mechanism specified in the 10 key Points of the Plan.

Basic human rights and freedoms at home must not only be ensured and enshrined by law for every human being (no matter what race, sex, age or creed), to provide a minimum protection for the maintenance of safety for the individual at home and in the family, but they must also be enacted in practice.

The following F.A.I.R. 10 POINTS detail the minimum legislative changes required, to implement safety for the individual at home and in the family:

1. Any victim should be able to lodge a complaint.

2. Assistance should be available to lodge a complaint.

3. The initial administrative step should involve a proposal solely at the option of the victim for a mediation or conciliation process between affected parties.

4. There needs to be a firm sanction imposed on the perpetrator for a failure to take up any option of a conciliation or mediation process offered by the victim, which establishes the legal right of the complainant as a matter of criminal process. To ensure this, if necessary, supplementary legislative criminal standards based on specific human rights violations under international human rights treaties need to be provided for, in addition to those legislative standards already existing under current human rights laws;

eg. rights of the child; sex discrimination; race discrimination (where applicable); civil and political rights, (including the outlawing of psychological and physical torture). The additional criminal sanction would, in providing a new legal right, complement the existing criminal law (but override it where required), and would give teeth to the administrative process.

5. Each complaint must be measured against a joint Federal/State legislative standard for the F.A.I.R. minimum conduct of family relations, which must be enacted as a code in the first instance by the Commonwealth Parliament to set a national benchmark of minimum best practice for the conduct of family relations. Every relevant United Nations Rights instrument provides the source from which essential family conduct standards may be derived.

These standards would be a code without attached criminal sanctions. But a breach of the code would operate to enable any victim to initiate a complaint by seeking an administrative resolution of domestic violence, without any victim having to forfeit whatever prior common law statutory, or human right was originally applicable and capable of being actioned by judicial process at a higher standard of proof at a later date, than that applying to the administrative option, to determine the matter of complaint, whenever the offered administrative solution is rejected by the offender.

6. For this proposal to work for the empowerment of victims, there needs to be a complementary State administrative and tribunal system similar to the Equal Opportunity Commission, but likewise subject to The Federal law -- and in this case the Federal code. This overlap must be drafted to cure any deficiencies caused by constitutional problems, and must integrate present applicable State criminal laws into a comprehensible national family legal system, comparable, but NOT limited to the way that HREOC integrates with State-based Equal Opportunity systems.

7. An integrated State and Federal system aiming to empower victims would need the following specific legal components enshrined in both State and Federal legislation:

(a) Complainants must have the legal right to obtain preference for an administrative resolution by intervention through conciliation or mediation, without prejudice to their rights under the pre-existing criminal law. This would require additional legislation providing for a national legal right for complainants to defer for a minimum specified time their pursuit of the pre-existing criminal process under the criminal law against the offender, subject to an option to reactivate and pursue whatever prior criminal remedies were deferred, without prejudice from time, whenever and if the offer or process of administrative resolution is ignored by the offending party.

(b) New State/Federal legislation must derive from and implement the relevant United Nations Human Rights Treaties and instruments so as to provide for a readjustment of applicable sentences for subsequent criminal conviction which reflects the impact on victims of both the original offence and the failure of the administrative intervention. These redefined penalties may only be imposed judicially, and only in deferred proceedings. This is justified on the ground that criminal sentences imposed in default of administrative resolution need to reflect the appropriate weight of the costs to the State ad community (the impact on individual victims is to be considered here) whenever subsequently convicted offenders have first attempted to manipulate options to the detriment of the victim, by either delaying adjudication of a complaint, or by delaying quick determination of offences by disruption to administrative solution.

(c) There needs to be special legislation setting appropriate time limits in at least two further cases:

(i)Time limits for both administrative resolution on complaint on behalf of children; and,

(ii)for the pursuit of criminal offences against children (whether proceedings or complaints are initiated by the State or a related interested party), must reflect a special consideration of the psychological impact of the offending conduct on all its victims. This consideration of children’s interests must apply irrespective of whether the offending conduct is dealt with by way of administrative resolution, or by way of judicial proceedings, (whether deferred, or not).

8. The successful joint Federal/State enactment of this proposal must provide adequate seeding funds through the initial Federal legislation establishing this F.A.I.R. option. The process should begin by the establishment of a special Federal Joint Parliamentary Enquiry, supported by the usual relevant government and public institutions, eg. the Family Court, the Australian Institute of Family Studies, the Law Reform Commission, Australian Institute of International Affairs, any other relevant community interest groups, Federal Parliamentary Joint Committee on Legal and Constitutional Affairs, and any other relevant community interest groups, Federal parliamentary Joint Committee on Legal and Constitutional Affairs, and any other relevant Federal/State Parliamentary Committees.

9. The success of the proposal depends on having it floated as a matter of public interest, by a broad-based coalition of activist individuals with the relevant expertise, and concerned human rights and justice bodies like Amnesty International, Victim’s Support Services, Women’s Electoral Lobby, UNICEF, United Nations Association, Women’s Community (Health) Centres, Community Legal Services and State and Federal politicians.

10. The first step in formulating the necessary strategy to bring this F.A.I.R. 10-Point Plan into effect is to get positive commitments from as many local State and Federal Members as possible.

The role of the committed Local State Member must be that of a two-way communication channel, who in one direction provides the proponents with relevant information about the inadequacies of policy, operations and legalities that make up the current deficiencies in the State criminal law and State police operations, and in he other direction feeds into the State legal machinery, government and judicial apparatus, information from the F.A.I.R. Project (as required) about the object purpose and policy of the proposal, and overall facilitates dialogue between its promoters and the State Government.

The role of the Local Federal Member is to be an identical two-way channel between the proponents and the machinery of Federal Government and the involved Federal Judicial and Administrative or Executive authorities; Family Court, Federal Police, HREOC, etc.

Ngarrindjeri Elder
Dawn Trevorrow