Family violence & Commonwealth laws e-news | Issue 1

Issue 1 | November 2010   View original format

On 11 November the report, Family Violence—A National Legal Response (ALRC 114/NSWLRC 128) was released.  Many of you would have heard all about this through the e-newsletter for that inquiry plus other media channels.  As both the Commonwealth and NSW Attorneys-General launched the report, it attracted considerable attention—as it should.

One thing we recommended in that report was the possibility of a follow-on inquiry by the ALRC, focusing on family violence under Commonwealth law, relevant—or potentially relevant—to  a range of federal legislative regimes including, for example, those regulating workplace relations, immigration, social security and child support. A number of stakeholders in the first inquiry supported this proposal. This suggestion was taken up by the Attorney-General and terms of reference given to us on 9 July, with the plan to commence this new inquiry once the first Family Violence Report was finished.

This e-newsletter is the first for the new inquiry and signals that work on it is well and truly underway, with a research team established and initial consultations taking place.  Like the first inquiry, there is a similar challenge in the new inquiry to identify the issues and develop proposals.

Our plan is to release a Consultation Paper in April 2011.  As with all ALRC inquiries, the process works best with as much stakeholder participation as possible.  The integrity of ALRC processes, and ultimately our recommendations, is underpinned by the participation of stakeholders. So, please let others know about this new inquiry and encourage them to sign up to this e-newsletter, join the blog and make a submission to the Consultation Paper.

Please share your responses to these questions on the Inquiry Blog >>

The Terms of Reference require the ALRC to examine the treatment of family violence in Commonwealth laws and to consider improvements to protect the safety of those experiencing family violence. A range of issues can be identified in each of the specified areas of Commonwealth law. For example:

Child support

Tax legislation requires parents to take ‘reasonable maintenance action’ to get child support from a non-custodial parent, in order to be eligible for more than the base rate of Family Tax Benefit Part A. Guidelines provide exemptions from this obligation, including where there is violence or fear of violence; or a harmful or disruptive effect on the payee or payer of child support. How do these exemptions operate in practice and are victims of family violence who are exempted from applying for child support financially disadvantaged?

Immigration

The criteria for a number of visa subclasses contain an exception to the requirement of a continuing spouse or de facto partner relationship between the visa applicant and another person (their sponsoring spouse or partner), if evidence is provided that they or a member of their family unit have experienced family violence by the sponsoring spouse or partner.  How does this exception operate in practice and how might the criteria and relevant evidentiary requirements be improved?

Employment

There are moves towards including family violence clauses in enterprise agreements. Such clauses may provide for paid special leave for absences related to domestic violence, flexible working hours, relocation and other measures to benefit victims of family violence. What are the barriers to the broader adoption of such clauses? Should other steps be taken, such as  amending the Fair Work Act to include family violence as a basis on which an employee may request flexible working arrangements?

Social security

The rates of many social security payments and benefits differ depending on whether the recipient is a ‘member of couple’—that is, in a de facto relationship (previously, a ‘marriage-like relationship’). Concerns have been expressed that underlying assumptions in the ‘de facto relationship’ test may disregard domestic violence and its potential impact on the victims’ decisions. Should the criteria for determining whether a person is a ‘member of a couple’ be amended so that family violence can disqualify a relationship from being considered ‘de facto’?

Superannuation

Superannuation funds generally cannot be accessed before the member is the required ‘preservation age’ which currently ranges from 55 to 60 years depending on date of birth. However, there are specified compassionate grounds for early release of superannuation, including severe financial hardship. Should there be a specific exemption for victims of family violence allowing them early access to their superannuation if they are suffering hardship and do not meet the current criteria?

Privacy

In each of these areas of Commonwealth law, privacy issues relating to family violence may arise. For example, the Child Support Agency discloses personal information about one parent to the other in child support assessment notices. Are exceptions to such disclosure requirements justified in cases of family violence?

At this early stage of the Inquiry, the ALRC is interested in feedback that will assist it to identify aspects of Commonwealth laws that might be improved to better protect the safety of those experiencing family violence. Do you have views or perspectives on any of the issues identified above? What other issues should the ALRC examine in relation to these or other areas of Commonwealth law?

Please share your responses to these questions on the Inquiry Blog >>