17. The Social Security Act 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 contains 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 The Guide to Social Security Law refers to a definition that has now been repealed—s 60D(1) of the Family Law Reform Act 1995 (Cth)—in stating that:

Domestic and family violence occurs when someone tries to control their partner or other family members in ways that intimidate or oppress them. Controlling behaviours can include threats, humiliation (‘put downs’), emotional abuse, physical assault, sexual abuse, financial exploitation and social isolations, such as not allowing contact with family or friends; AND/OR

Family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family to fear for, or to be apprehensive about, his or her personal well being or safety.

Domestic violence can include violence to someone who is not a family member, for example co-tenants and people in shared housing situations.[4]

18. The Guide to Social Security Law provides further, in relation to Crisis Payment, that ‘domestic and family violence’ 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.[5]

19. In Family Violence—A National Legal Response, Report 114 (2010) (ALRC Report 114), the ALRC and the NSW Law Reform Commission (NSWLRC) (the Commissions) recommended that state and territory family violence and criminal legislation, and the Family Law Act 1975 (Cth), should adopt the following consistent definition of family violence:

violent or threatening behaviour, or any other form of behaviour, that coerces or controls a family member or causes that family member to be fearful. Such behaviour may include but is not limited to:

(a) physical violence;

(b) sexual assault and other sexually abusive behaviour;

(c) economic abuse:

(d) emotional or psychological abuse;

(e) stalking;

(f) kidnapping or deprivation of liberty;

(g) damage to property, irrespective of whether the victim owns the property;

(h) causing injury or death to an animal irrespective of whether the victims owns the animal; and

(i) behaviour by the person using the violence that causes a child to be exposed to the effects of behaviour referred to in (a)–(h) above.[6]

20. While the current definition contained in the Guide to Social Security Law is already broad, it may be beneficial to have a definition that is consistent with the definition of family violence in other Commonwealth laws. This would ensure that victims of family violence have some degree of clarity and certainty that the violence that they are experiencing will be recognised and treated similarly across all Commonwealth laws—a common interpretive framework as suggested by ALRC Report 114.

21. The Commissions also noted that provisions which affect the lives and safety of particularly vulnerable groups in society may be more appropriately placed in primary legislation.[7] Placing the definition of family violence in the Social Security Act may afford a measure of stability and visibility to the definition.

Question 1 Should the Social Security Act 1991 (Cth) and/or the Social Security (Administration) Act 1999 (Cth) be amended to insert a definition of ‘family violence’ consistent with that recommended by the ALRC/NSWLRC in Family Violence—A National Legal Response (ALRC Report 114)?

[4] Department of Families, Housing, Community Services and Indigenous Affairs, Guide to Social Security Law<http://www.fahcsia.gov.au/guides_acts/> at 4 February 2011, [1.1.D.235] (Domestic and/or Family Violence (CrP)).

[5] Ibid, [3.7.4.20] (Qualification for CrP—Extreme Circumstances (Domestic & Family Violence)); [3.7.4.25] (Qualification for CrP—Remaining in the Home After Removal of Family Member Due to Domestic or Family Violence).

[6] Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence—A National Legal Response, ALRC Report 114; NSWLRC Report 128 (2010), Recs 5–1, 6–1, 6–4.

[7] Ibid, Ch 6.