3.15 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)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 The Guide to Social Security Law refers to a definition that has now been repealed—s 60D(1) of the Family Law Reform Act 1995 (Cth)—in stating that: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.
3.16 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.
3.17 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 in Family Violence—A National Legal Response.
3.18 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. Placing the definition of family violence in the Social Security Act may afford a measure of stability and visibility to the definition.
3.19 ‘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).
3.20 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’.
3.21 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 except in reference to Crisis Payment. However, ‘family member’ is also used in the proposed definition of family violence and therefore it is important to understand how the proposed definition of family violence will be interpreted in the social security context. In particular, for Indigenous communities, where the meaning of ‘family member’ has a immutable connection to custom and practice through Aboriginal law, or revitalised customs and practice through a reconnection to ‘country’ and family membership.
Using the common definition
3.22 In Family Violence and Commonwealth Laws—Social Security Law (ALRC Issues Paper 39, 2011), the ALRC asked whether the Social Security Act and/or the Social Security (Administration) Act should 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).
Submissions and consultations
3.23 There was strong support amongst stakeholders for consistency of definitions across Commonwealth laws, including in the area of social security. The importance of consistency across the ‘family law system’ and the adoption of a national ‘best practice’ definition, including within all states and territories, were identified as key goals. Consistent definitions were seen as providing the foundation for consistent decision making. For example, the National Council for Single Mothers and Their Children said that ‘legislation is a foundation from which policy, practices, processes and culture are formed and implemented’. Similarly, the Commonwealth Ombudsman supported the definition ‘being consistently applied across the policies and procedures of Commonwealth agencies, wherever possible’:
Having a single consistently applied definition would potentially minimise the need for a person to retell their story and obtain different types of evidence for agencies they will commonly need to approach when experiencing or fleeing family violence, such as Centrelink and the CSA. The definition recommended by the ALRC and NSW Law Reform Commission would seem to encompass the full range of behaviours that amount to ‘violence’ within the term ‘family violence’.
3.24 The Homeless Persons’ Legal Service drew attention to the ‘strong nexus’ between experiences of family violence and homelessness, and the need, therefore, for people at risk of homelessness to be able to access income support, social security and child support. In this context the service stressed the importance for homeless people to have certainty that their experiences of family violence are treated in the same way under different Commonwealth legislative frameworks.
3.25 The Commonwealth Ombudsman queried whether there also needed to be an amendment to the definition of ‘family member’ to acknowledge ‘that “family violence” may involve violence affecting parents and children, and other members of their former and current family units that are living separately and, indeed, may have never lived together’.
3.26 The Sole Parents’ Union recommended that the definition of family violence be amended to reflect behaviour by the person using family violence that causes a child to be exposed to the behaviour or exposed to the effects of the behaviour in (a)–(h) above.
3.27 As with the other areas under consideration in this chapter, the ALRC confirms its views expressed in Family Violence—A National Legal Response that systemic benefits would flow from the adoption of a common interpretative framework, across different legislative schemes, promoting seamlessness and effectiveness in proceedings involving family violence for both victims and decision makers.
3.28 Consistency of definitions across the areas under consideration in this Inquiry promotes the seamlessness identified as a key framing principle. Such consistency can then underpin training and awareness in service delivery areas, and also facilitate better coordination of responses to family violence, through appropriate information sharing and the improvement of pathways between agencies. The ALRC does not propose to extend or alter the definition of family violence as proposed in the Family Violence—A National Legal Response and considers that the particular nature, features and dynamics of family violence can be expanded upon in the Guide to Social Security Law.
3.29 As discussed in Chapter 13, the indicators of vulnerability for compulsory income management are financial hardship; financial exploitation; failure to undertake reasonable self-care; or homelessness or risk of homelessness. In that chapter, the ALRC notes concerns with introducing family violence as an indicator of vulnerability; and for any unintended use and application in broadening the definition of family violence that may affect vulnerable groups as a trigger for income management. However, the ALRC also recognises that the current indicators of vulnerability encapsulate the experiences of many people who are experiencing family violence. For example, the Guide to Social Security Law states that ‘financial exploitation’ may occur when ‘a person is subject to undue pressure, harassment, violence, abuse, deception or exploitation for resources by another person or people, including other family and community members’.
3.30 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. The ALRC considers therefore that references to family violence in the Social Security (Administration) Act should cross reference to this definition.
Proposal 3–1 The Social Security Act 1991 (Cth)should be amended to provide that family violence is violent or threatening behaviour, or any other form of behaviour, that coerces and 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;
(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 victim owns the animal; and
(i) behaviour by the person using violence that causes a child to be exposed to the effects of behaviour referred to in (a)–(h) above.
 Department of Families, Housing, Community Services and Indigenous Affairs, Guide to Social Security Law <www.fahcsia.gov.au/guides_acts/> at 22 July 2011, [1.1.D.235] (Domestic and/or Family Violence (CrP)).
 Ibid, [18.104.22.168] (Qualification for CrP—Extreme Circumstances (Domestic & Family Violence)); [22.214.171.124] (Qualification for CrP—Remaining in the Home After Removal of Family Member Due to Domestic or Family Violence).
 Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence: A National Legal Response, ALRC Report 114; NSWLRC Report 128 (2010), Ch 6.
. See, for example, Social Security Act ss 602B, 1061JHA.
 Australian Law Reform Commission, Family Violence and Commonwealth Laws—Social Security Law, ALRC Issues Paper 39 (2011), Question 1.
 North Australian Aboriginal Justice Agency, Submission CFV 73, 17 May 2011; ADFVC, Submission CFV 71, 11 May 2011; Welfare Rights Centre NSW, Submission CFV 70, 9 May 2011; Welfare Rights Centre Inc Queensland, Submission CFV 66, 5 May 2011; Good Shepherd Youth & Family Service, McAuley Community Services for Women and Kildonan Uniting Care, Submission CFV 65, 4 May 2011; National Children’s and Youth Law Centre, Submission CFV 64, 3 May 2011; Sole Parents’ Union, Submission CFV 63, 27 April 2011; Commonwealth Ombudsman, Submission CFV 62, 27 April 2011; Multicultural Disability Advocacy Association, Submission CFV 60, 28 April 2011; WEAVE, Submission CFV 58, 27 April 2011; National Council of Single Mothers and their Children, Submission CFV 57, 28 April 2011; Council of Single Mothers and their Children (Vic), Submission CFV 55, 27 April 2011; M Winter, Submission CFV 51, 27 April 2011; Australian Association of Social Workers (Qld), Submission CFV 46, 21 April 2011; P Easteal and D Emerson-Elliott, Submission CFV 05, 23 March 2011.
 Sole Parents’ Union, Submission CFV 63, 27 April 2011 and Good Shepherd Youth & Family Service, McAuley Community Services for Women and Kildonan Uniting Care, Submission CFV 65, 4 May 2011;Welfare Rights Centre Inc Queensland, Submission CFV 66, 5 May 2011, respectively.
 Welfare Rights Centre Inc Queensland, Submission CFV 66, 5 May 2011.
 National Council of Single Mothers and their Children, Submission CFV 57, 28 April 2011.
 Public Interest Advocacy Centre, Submission CFV 40, 15 April 2011.
 Commonwealth Ombudsman, Submission CFV 62, 27 April 2011.
 Sole Parents’ Union, Submission CFV 63, 27 April 2011.
 See Proposal 5–1.
 Department of Families, Housing, Community Services and Indigenous Affairs, Guide to Social Security Law <www.fahcsia.gov.au/guides_acts/> at 22 July 2011, [126.96.36.199] (Indicators of Vulnerability).
 Ibid, [188.8.131.52] (Indicators of Vulnerability). The Guide also recognises thatfamily violence may lead to homelessness, in circumstances where the victim is forced to leave his or her home.