Location of common definition

3.66 The ALRC considers that the key outcome is to achieve consistency of understanding across the Commonwealth legal frameworks under review. In some instances this will be achieved by including a common definition in the primary legislation itself; in others, the appropriate place may be elsewhere, such as in policy guides for decision makers. The next section examines each of the areas under review and considers where best to place the definition.

Social security

3.67 The Social Security Act 1991 (Cth)refers to ‘domestic violence’ or ‘domestic or family violence’ in a range of contexts. Neither the Social Security Act nor the Social Security (Administration) Act 1999 (Cth)contain a definition of domestic or family violence. The Guide to Social Security Law refers to a definition that has now been repealed—s 60D(1) of the Family Law Reform Act 1995 (Cth).^[83]

3.68 The Guide to Social Security Law provides that ‘domestic and family violence’ in relation to Crisis Payment includes: child abuse; maltreatment; exploitation; verbal abuse; partner abuse; elder abuse; neglect; sexual assault; emotional abuse; economic abuse; assault; financial coercion; domestic violence; psychological abuse, or social abuse.^[84]

3.69 ‘Family member’ is defined in s 23(14) of the Social Security Act to include, in relation to a person (the ‘relevant person’):

(a) the partner or a parent of the relevant person;

(b) a sister, brother or child of the relevant person; or

(c) any other person who, in the opinion of the Secretary, should be treated for the purposes of this definition as one of the relevant person’s relations described in paragraph (a) or (b).

3.70 The Guide to Social Security Law states that ‘the discretion in s 23(14)(c) should be used only in respect of a family relationship that is similar to that of a partner, mother, father, brother, sister or child of the relevant person and is also such that it should be treated as such a relationship’.^[85]

3.71 The National Welfare Rights Network (NWRN) commented on the narrowness of s 23(14) and stated that the discretion in (c) is ‘exercised in a very circumspect manner’. NWRN argued that the discretion was ‘not the most appropriate mechanism for extending the definition of “family member”’.^[86] NWRN suggested including a detailed definition of family member—independent of the definition of ‘member of a couple’ in s 4.

3.72 Currently, references to ‘domestic and/or family violence’ in the Social Security Act are referred to without reference to who is using the family violence,^[87] except in relation to Crisis Payment. The recommendations made in Chapter 9 would delete this latter reference.^[88] However, ‘family member’ is also used in the recommended definition of family violence and therefore it is important to understand how this definition will be interpreted in the social security context. In particular, for Indigenous communities, where the meaning of ‘family member’ has an immutable connection to custom and practice through Aboriginal law, or revitalised customs and practice through a reconnection to ‘country’ and family membership.

3.73 DEEWR raised concerns about the potential narrowing of the definition of family violence. In this regard, DEEWR noted that the existing definition of domestic violence in the Guide to Social Security Law can include violence to someone who is not a family member, such as co-tenants or people in shared housing situations, while the ALRC’s recommended definition of family violence would not extend to such situations.^[89] Similarly, the Commonwealth Ombudsman noted that any definition of family violence in child support, family assistance and social security legislation would ‘need to be broad enough to include violence involving persons connected by a variety of current and former “family” relationships’, and it may be necessary to separately define ‘family’.^[90]

3.74 It may therefore be necessary to complement the recommended definition of family violence in the social security definition with a definition of family member in the Social Security Act. The ALRC considers that such a definition should capture at least the categories of relationships that Family Violence—A National Legal Response recommended should be covered by state and territory family violence legislation. These categories include:

• past or current intimate relationships, including dating, cohabiting, and spousal relationships, irrespective of the gender of the parties and whether the relationship is of a sexual nature;
• family members;
• relatives;
• children of an intimate partner;
• those who fall within Indigenous concepts of family; and
• those who fall within culturally recognised family groups.^[91]

3.75 With respect to social security, the ALRC considers that the Social Security Act should be amended to include the common definition. As the primary legislation, the Social Security Act contains the definition section. While the current definition contained in the Guide to Social Security Law is already broad, the ALRC considers that placing the definition of family violence in the Social Security Act may afford a measure of stability and visibility to the definition. References to family violence in the Social Security (Administration) Act should cross-reference to this definition. The ALRC also considers that the particular nature, features and dynamics of family violence should be expanded on in the Guide to Social Security Law.

3.76 From the first responses to the Issues Paper, there was strong support among stakeholders for consistency of definitions in the areas under review, including in the area of social security.^[92] DEEWR supported in principle the amendment of the definition in the Social Security Act, noting that any amendments would need to be jointly considered by DEEWR and FaHCSIA, as joint administrators of social security policy and law. While DEEWR supported a consistent and comprehensive definition of family violence, it considered that it may not be practical or effective to include a definition in every Departmental document.^[93]

3.77 In the pre-employment context, the term domestic violence is included in publications such as the Job Seeker Classification Instrument (JSCI) Guidelines, other material utilised by Job Services Australia (JSA), Disability Employment Services (DES) and Indigenous Employment Program (IEP) providers and in relation to Job Capacity Assessments and Employment Services Assessments. However, domestic violence is not definite in these publications.

3.78 The ALRC recommends in Chapter 8 that the JSCI include a new and separate category of family violence.^[94] The ALRC also recommends that JSA, DES and IEP deeds and contracts should include a requirement that providers should appropriately and adequately consider the existence of family violence when tailoring service responses to individual job seeker needs.^[95]

3.79 If such amendments are made, the recommended definition of family violence should be included in the JSCI Guidelines and relevant JSA, DES and IEP deeds and contracts.

Child support and family assistance

Child support

3.80 Family violence is not defined in either the Child Support (Assessment) Act 1989 (Cth), or the Child Support (Registration and Collection) Act 1988 (Cth). The Child Support Guide contains a broad definition of family violence:

Family violence covers a broad range of controlling behaviours. They are commonly of a physical, sexual, and/or psychological nature, and typically involve fear, harm, intimidation and emotional deprivation. It occurs within a variety of close interpersonal relationships, such as between spouses, partners, parents and children, siblings, and in other relationships where significant others are not part of the physical household but are part of the family and/or are fulfilling the function of family.^[96]

3.81 The Child Support Guide also provides definitions for the following non-exhaustive list of behaviours that may be involved in family violence:

• physical abuse;
• sexual abuse;
• emotional abuse;
• verbal abuse;
• social abuse;
• economic abuse; and
• spiritual abuse.^[97]

Family assistance

3.82 The framework for family assistance is contained in two statutes: A New Tax System (Family Assistance) Act 1999 (Cth) and A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)—referred to as the Family Assistance Act and the Family Assistance (Administration) Act respectively. Neither of these Acts, nor the Family Assistance Guide provides a definition of ‘family violence’.^[98]

Amending the primary legislation?

3.83 Provisions that affect the lives and safety of particularly vulnerable groups of society may be more appropriately placed in primary legislation.^[99] The ALRC considers it desirable for the definition of family violence to be set out in the Child Support (Assessment) Act and the Child Support (Registration and Collection) Act as well as in the Family Assistance Act and the Family Assistance (Administration) Act. Placing the definition of family violence in the primary legislation gives the definition increased stability, visibility and authority.

3.84 Consistent legislative definitions of family violence may foster a shared understanding across jurisdictions, courts and tribunals, and across agencies such as the Child Support Agency and Centrelink. It would also provide victims with clarity and the certainty that family violence will be recognised and treated similarly across Commonwealth laws. A joint submission by Domestic Violence Victoria and others argued that, in the child support and family assistance context, the ‘development of consistent definitions, policies, screening tools, risk management guidelines and practice directions will enhance the safety of women and children experiencing family violence’.^[100] Moreover, including the proposed definition in the relevant legislation would ‘elevate and emphasise the importance of family violence considerations and resultant risk factors in child support matters’.^[101] The clear articulation of the definition in legislation would ‘provide clarity and transparency’ and create the ‘foundation from which policy, practices, processes and culture are formed and implemented’.^[102]

3.85 The Council of Single Mothers and their Children (CSMC) said that it was ‘imperative’ that information and definitions of family violence are ‘clearly articulated in legislation and guides that decision makers refer to’.^[103] CSMC considered that this may address a ‘lack of understanding of the impact on children of being exposed to family violence’, and a lack of ‘sympathetic response to disclosures of family violence’.^[104]

3.86 The Law Council of Australia agreed that there should be a single definition, but submitted that it should be located in the Family Law Act 1975 (Cth), with ‘all other Commonwealth Acts pointing to that definition as necessary’:

This would mean that if a change to the definition is ever required, there is only one Act which needs to be amended. Similarly, having one definition ensures that different definitions of the same concept are not inadvertently created if one Act is changed and the other is overlooked.^[105]

3.87 The ALRC considers that the suggestion by the Law Council for the definition to be included in the Family Law Act and that this be used as the reference point for other legislation has practical appeal, in terms of ensuring that only one piece of legislation requires amendment. However, there is an educative function in having the definition in the relevant primary legislation for each area that may then inform policy documents, such as the guides, that are the principal tool for officers who have the task of implementing or working with the legislation. Legislative definitions also inform associated training especially in service delivery areas.

3.88 Achieving consistency is the principal aim. This can be achieved either by specific amendment to the relevant primary legislation or by amendment to one, with cross-references in the others. As noted above, amendment to the Family Law Act is the first step towards implementing an improved definition of family violence in Commonwealth laws. It is likely, therefore, to form the model on which the other definitions are based. The ALRC recommends that the relevant primary legislation in each case, as considered in this Report, include the definition.

3.89 The Family Law Act is the central piece of legislation in the ‘family law system’ and child support may be considered—to some extent—to be part of that system. In this particular context, therefore—although not necessarily with respect to the other areas under consideration in this Inquiry—reference to the Family Law Act definition is clearly one possible direction for reform. There are practical issues that remain, however, where cross-referencing itself becomes out of date, and explanations in policy material are no longer relevant.^[106] There is also the distinct educative role and value of placing the definition in the relevant primary legislation.

Defining family member?

3.90 The recommended definition of family violence refers to the term ‘family member’, and this is not defined in the child support and family assistance legislation. However, the ALRC considers it unnecessary for these legislative frameworks to define the terms ‘family’, ‘family member’ or ‘family relationships’. Defining relationships in which family violence can occur is an important component of state and territory family violence legislation. The defined relationships provide for, and restrict, eligibility for family violence protection orders. Only persons in certain categories of relationships may obtain such orders.

3.91 By contrast, and as discussed in Chapter 11, family violence in the child support framework does not, in and of itself, prompt an outcome that determines rights between parties. There is, therefore, not the same imperative to define the context in which family violence may occur. Indeed, legislatively defining family or family relationships may unnecessarily limit the application of an issues-management response to family violence that promotes customer safety.

3.92 However, where departments consider that staff would be assisted by guidance regarding the relationship context of family violence within a particular framework, departments may set out further information within policy guides. For example, DHS has stressed the need for recognition of family violence occurring in relationships other than families or couples:

‘domestic’ violence can occur between people co-habiting for other reasons, such as friends, people living in a shared house or in other non-familial domestic arrangements, or live-in caregivers.^[107]

3.93 It may be appropriate to set out such information to complement the definition in the relevant policy guide—in this case, the Child Support Guide.

3.94 The ALRC has taken a similar approach in relation to former relationships in the child support context. DHS submitted that the family violence concept ‘needs to include both current and former members of a family/relationship or household’.^[108] While the Commissions recommended in Family Violence—A National Legal Response that this should be specified in state and territory family violence legislation,^[109] in the child support context such guidance regarding the legislative interpretation may, where necessary, be situated in policy guides.

3.95 In the family assistance context, while family violence does not generally prompt outcomes that affect rights and entitlements there is some limited scope for it to do so. In particular, exemptions from the ‘reasonable maintenance action’ requirements enable victims of family violence to forgo child support, where necessary for their safety, without an associated reduction to their Family Tax Benefit Part A (as discussed in Chapters 11 and 13). Further, family violence may be relevant in obtaining increased rates of Child Care Benefit (as discussed in Chapter 14).

3.96 It may therefore be necessary to complement the recommended definition of family violence in the family assistance definition with a definition of family member in the legislation or the Family Assistance Guide. The categories of relationship recommended to be included for the purposes of state and territory family violence legislation are referred to above.

Employment and superannuation

3.97 The ALRC considers that consistency of definitions across the areas under consideration in this Inquiry promotes the seamlessness identified as a key framing principle. In an employment context, such consistency can then underpin awareness raising initiatives, education, training as well as responses to family violence, including articulation of duties, rights and entitlements.

3.98 As outlined in Chapters 15–18, while in many respects the intersections between family violence and employment are increasingly being recognised, neither the Fair Work Act 2009 (Cth) nor the Fair Work Regulations 2009 (Cth) has specific provisions dealing with family violence or the manifestation of family violence in the workplace. As a result, there is no specific reference to, or definition of, family violence in Fair Work Australia (FWA) or Fair Work Ombudsman (FWO) material.

3.99 Similarly, given Safe Work Australia’s view that family violence is not an OHS issue, the Model Work Health and Safety Act, Regulations and Codes of Practice under the harmonised OHS regime do not refer to, or contain a definition of, family violence.

3.100 While placing the definition of family violence in primary legislation may give the definition increased stability, visibility and authority, in the context of the Fair Work Act, given there are limited direct legislative entitlements, it is unnecessary at this time. Rather, the ALRC considers the consistent definition of family violence should be included in FWA and FWO material and other relevant material developed by bodies such as the Office of the Australian Information Commissioner, Equal Opportunity for Women in the Workplace Agency, and the Australian Human Rights Commission.

3.101 However, in the course of the phased implementation of reforms in the employment context, outlined in Chapter 15, it may be necessary to reconsider the inclusion of a definition of family violence in the Fair Work Act. For example, in the course of considering whether amendments should be made to the National Employment Standards (NES), in a joint submission, Domestic Violence Victoria and others submitted that:

The definition of family violence would need to be consistent with definitions adopted by other jurisdictions (we refer to recommendations 5–1 and 5–3 of the ALRCs Family Violence—A National Legal Response Final Report (2010).^[110]

3.102 Similarly, two stakeholders suggested including a definition of family violence for the purposes of accessing flexible working arrangements under s 65 of the Fair Work Act. The Australian Domestic and Family Violence Clearinghouse, for example, suggested that ‘domestic or family violence’ should include ‘physical, sexual, mental, verbal or emotional abuse by a member of the employee’s immediate family or a member of the employee’s household’.^[111]

3.103 Women’s Health Victoria added that, if family violence is included under s 65 of the Fair Work Act, it would recommend, ‘accompanying materials be produced for both employers and employees explaining the reason for its inclusion, legal definitions of what constitutes family violence’.^[112]

3.104 However, the Australian Chamber of Commerce and Industry expressed the view that the consistent definition is ‘far too wide as a workable definition for the purposes of determining minimum conditions of employment’ under the Fair Work Act.^[113]

3.105 In the OHS context, as outlined in Chapter 18, the ALRC considers there are some circumstances in which primary duties of care may encompass risks arising from family violence. Accordingly, the ALRC recommends that Safe Work Australia include family-violence related information in Codes of Practice and other relevant material. In the course of doing so, the ALRC recommends that the consistent definition of family violence is included.

Superannuation

3.106 There is no relevant definition of family violence in the central pieces of superannuation legislation, including the Superannuation Act 1976 (Cth), Superannuation Industry (Supervision) Act 1993 (Cth), or Superannuation Industry (Supervision) Regulations 1994 (Cth). To ensure family violence may be considered in the context of spousal contributions, self-managed superannuation funds and early access to superannuation, the ALRC recommends that where appropriate, all Australian Prudential Regulation Authority, DHS, Australian Taxation Office and superannuation fund material, should provide for a consistent definition of family violence as set out in Recommendation 3–1.

3.107 Northern Rivers Community Legal Centre suggested that the consistent definition should include ‘recognition that family violence also includes “coercing a partner or other family member to relinquish control over assets”’.^[114]

Migration

3.108 The Migration Regulations 1994 (Cth) defines the term ‘relevant family violence’ to mean a reference to conduct, whether actual or threatened, towards:

1. the alleged victim; or
2. a member of the family unit of the alleged victim; or
3. a member of the family unit of the alleged perpetrator; or
4. the property of the alleged victim; or
5. the property of a member of the family unit of the alleged victim; or
6. the property of a member of the family unit of the alleged perpetrator;

that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.^[115]

3.109 This definition takes a similar approach to the definition of family violence in the Family Law Act,^[116] in giving focus to the effect of the conduct on the victim, rather than categorising types of conduct.^[117]

Judicial consideration of the term ‘violence’

3.110 The term ‘violence’ is not defined by the Migration Regulations, but it has been the subject of some judicial consideration. Early authorities on this issue took a view that violence was ‘meant to exclude instances where the damage suffered by the applicant was not wholly physical’.^[118] However, later authorities have reinforced an understanding of ‘violence’ to cover emotional violence, economic abuse and psychological abuse.^[119]

‘Relevant family violence’

3.111 If the ALRC’s definition of family violence is adopted, this would result in the removal of the term ‘relevant’ from the current definition in the Migration Regulations. Stakeholders argued that including the term ‘relevant’ was confusing, unnecessary and risks not encompassing all forms of violence.^[120] For example, the AASW (Qld branch) submitted that:

The concept of ‘relevant’ as it is included in the current legislation is questionable and the AASW strongly argues that all forms of violence need to be assessed and recognised as relevant to decision makers.^[121]

3.112 The Refugee and Immigration Legal Service submitted that ‘relevant’ can be interpreted to mean ‘cultural’ relevance, rather than taking into account all dimensions of domestic and family violence.^[122]

3.113 There has also been judicial concern about the impact of the term ‘relevant’ in the Migration Regulations. In Al-Momani v Minister for Immigration and Citizenship, The court considered ‘relevant family violence’ to be a subset of ‘violence’, such that a person who is found to have suffered ‘family violence’ may not have suffered ‘relevant family violence’ for the purposes of the Migration Regulations.^[123] The court remarked that:

The issues represent a potential legal minefield. The minefield could be avoided if the definition of ‘relevant family violence’ were to be replaced with the proposed definition of ‘family violence’ in the Family Law Act if that definition is enacted. That definition has the advantage that it focuses specifically on coercive and controlling violence which carries with it the concept of an abuse of power, while maintaining the concept of induced fear.^[124]

3.114 In the ALRC’s view, all forms of family violence should be considered by a visa decision maker, with an understanding of the controlling and coercive conduct that causes the victim to fear for his or her safety or well-being.

‘Reasonableness’

3.115 The adoption of the ALRC’s definition would also see the removal of the requirement that a victim ‘reasonably’ fears for his or her safety. Some stakeholders questioned the utility of requiring a decision maker to make an assessment as to the state of mind of the victim, and whether the violence caused the victim to be reasonably apprehensive about his or her safety or well-being.^[125] For example, the Law Institute of Victoria argued that:

The focus on the victim, rather than the perpetrator, is inappropriate because it allows myths and stereotypes to persist about the nature and dynamics of family violence, including who is a victim, what constitutes violence and what is a reasonable response by the victim.^[126]

3.116 As an example of this concern, National Legal Aid submitted that:

It is not uncommon for victims of family violence to return to the family home several times before making the final decision that they can no longer continue to live with their partner … However, returns home and assertive behaviour can be misinterpreted as evidence that the victim is not reasonably fearful/apprehensive and so the victim fails to meet the definition of ‘relevant family violence’.^[127]

3.117 The Department of Immigration and Citizenship (DIAC), however, suggested there was utility in a ‘well founded’ or ‘reasonableness’ requirement, as this gives a decision maker an opportunity to test the applicant’s claims. DIAC was concerned that,

as the reactions and feelings of an individual are subjective, there is a risk that a definition without the scope to test the reasonableness of those feelings may be open to behaviours which would not usually be accepted as family violence.^[128]

3.118 DIAC considered that a ‘reasonableness’ test would be consistent with the way it assesses Protection visa requirements, on which there is a significant body of case law.^[129]

3.119 The ALRC accepts that, in the migration context, there is utility in a definition of family violence that provides a threshold to test an applicant’s claims. However, the requirement in the ALRC’s definition that the conduct be ‘violent’ or ‘threatening’, or behaviour that ‘coerces or controls’ a family member, provides a lens in which to consider the conduct in question. As Professor Richard Chisholm argued:

To add a requirement of reasonable fear would mean that the person alleging violence would have to lead additional evidence of a highly personal nature, and this is not necessary if there is evidence of behaviour that is violent, or threatening, or coercive or controlling. The need for such evidence, and concerns about what the court might or might not consider reasonable, would be a disincentive to some people who have been subjected to such behaviour to disclose it to the court.^[130]

Violence perpetrated by someone other than sponsor

3.120 Stakeholders also commented that the definition of ‘relevant family violence’—when read together with visa criteria in Migration Regulations sch 2, stating who can be the ‘alleged perpetrator’ and ‘alleged victim’—does not account for instances where violence is used by someone other than the sponsor, such as a family member of the sponsor. A number of stakeholders called for amendments to the Migration Regulations to reflect that family violence may be committed by someone other than the sponsor.^[131]

3.121 For example, Domestic Violence Victoria and others submitted that:

In Touch Multicultural Centre Against Family Violence can cite multiple cases in which their clients are subjected to violence from family members of the sponsor (brothers, fathers-in-law, mothers-in-law, uncles-nephews etc). In such cases, the victim will not be able to utilise the family violence provisions resulting in a significant inequity in the access the equity of the provisions.^[132]

3.122 The ANU College of Law submitted that the assumption that limiting the family violence exception only to instances where the perpetrator is the sponsoring partner ‘does not correspond to the reality and complexity of family violence contexts’.^[133]

3.123 The ALRC considers that whether or not the definition of family violence should apply to circumstances where violence is committed by someone other than the sponsor is an issue to be considered in the implementation of the definition. The current requirement that the family violence must have been committed by the sponsor appears to reflect the policy that the visa holder should not have to remain in a violent relationship with the sponsor or primary visa applicant in order to preserve his or her eligibility for permanent residence. Extending the applicability of family violence to cases where the violence is committed by someone other than the sponsor may have effects on the integrity of the visa system.

3.124 However, the ALRC considers that illustrative examples of conduct that may constitute family violence can be provided for in relevant guides. For example, a number of stakeholders supported the ALRC’s proposal to provide in Procedures Advice Manual 3 (PAM) that, where family violence has been perpetrated by a family member of the sponsor, at the instigation or coercion of the sponsor, the violence can be attributed to the sponsor by recognising the instigation or coercion as a form of coercive and controlling conduct.^[134]