Interpretative framework

Definition of family violence

5.39 As discussed in Chapter 3, 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 The Guide to Social Security Law refers to a definition that has now been repealed—s 60D(1) of the Family Law Reform Act 1995 (Cth)—in stating that: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 isolation, 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.^[28]

5.40 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.^[29]

5.41 In Chapter 3, the ALRC proposes that the following definition of family violence be included in the Social Security Act and the Social Security (Administration) Act, in addition to other Commonwealth legislation:

Family violence is 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 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.^[30]

Nature, features and dynamics

5.42 As noted in Chapter 3, in Family Violence—A National Legal Response (ALRC 114, 2010),^[31]the ALRC and the New South Wales Law Reform Commission (the Commissions) considered the particular nature, features and dynamics of family violence—including its gendered nature, detrimental impact on children, and the fact that it can involve exploitation of power imbalances, and occur in all sectors of society.^[32]

5.43 The Commissions recommended that state and territory family violence legislation should contain a provision that explains the nature, features and dynamics of family violence.^[33] The Commissions considered that this would ‘provide a contextual framework for judicial decision making’, serve an important educative function and complement the training and education of judicial officers, lawyers and the police as part of a package of recommendations to ‘facilitate a common understanding of family violence across the community, victims of family violence and the legal sector’.^[34]

5.44 In addition, in 2009, the Family Law Council recommended that the Attorney-General facilitate the establishment of an expert panel and reference group to develop, maintain and promote a family violence common knowledge base for those involved in the family relationship and family law system. This included that professional and peak bodies utilise the family violence common knowledge base to guide good practice and underpin training.^[35]

Submissions and consultations

5.45 As discussed in Chapter 3, stakeholders who responded to the Family Violence and Commonwealth Laws Issues Paper—Social Security Law, ALRC Issues Paper 39 (2011)(Social Security Issues Paper) supported including the definition of family violence recommended in the Family Violence—A National Legal Response in the Social Security Act.^[36]Stakeholders supported such an amendment on the grounds that it would facilitate consistent decision making and 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’.^[37]

5.46 Stakeholders also considered that it would allow the decision maker to take into account the impact of family violence and abuse on the person’s social security eligibility,^[38] and would provide clarity and transparency.^[39]

5.47 The Multicultural Disability Advocacy Association added that the definition should capture the fact that forms of violence can be culturally specific and not apparent to others and recommended that specific examples of family violence experienced by different sectors of society be included within the definition.^[40]

5.48 In addition to supporting the proposed definition, the Council of Single Mothers and their Children (CSMC) recommended that:

Centrelink staff at all levels [should] receive comprehensive training on family violence, including the types of behaviours, impacts, and working sensitively with women who have experienced violence.^[41]

ALRC’s views

Aiming proposals: legislation, policy and procedure

5.49 The ALRC considers that there is a need for transparency, consistency and accountability in the way Centrelink deals with cases involving family violence. Consequently, where changes to Centrelink procedures are considered, proposed reforms are aimed at the Guide to Social Security Law rather than Centrelink’s e-reference, described above, which is not publicly available.

5.50 The ALRC considers that including procedural information in the Guide to Social Security Law may promote awareness regarding the ways family violence is relevant to the management of social security, and the purpose for family violence screening and Centrelink identification of customers who may be at risk.

Nature, features and dynamics of family violence

5.51 Chapter 3 considers placing a definition of family violence in the Social Security Act and the Social Security (Administration) Act. In the ALRC’s preliminary view, the definition of family violence in the Guide to Social Security Law should be amended to reflect this definition, to enhance consistency across the policy and legislative base of the system. Such a reform would also provide victims with clarity, and the certainty that family violence will be recognised and treated similarly across Commonwealth laws. It would provide increased certainty for staff—particularly those who work across legislative regimes, such as Centrelink social workers—and provide a consistent basis for training. Further, a consistent definition across legislations and guidelines may foster a shared understanding across agencies, jurisdictions, courts and tribunals, reflecting the theme of ‘seamlessness’ referred to in Chapter 2.

5.52 While some stakeholders recommended specific examples of family violence be included in the definition of family violence, the ALRC considers that it is more appropriate that such examples be included in the Guide to Social Security Law. As a policy document, the Guide to Social Security Law is a more flexible instrument enabling examples of family violence specific to different sectors of society to be included. In addition, the ALRC has proposed that the definition of family violence in Chapter 3 be applied across a number of Commonwealth laws. To retain consistency, the ALRC does not propose the amendment of the definition of family violence, but rather proposes placing specific examples in interpretative policy instruments—such as the Guide to Social Security Law.

5.53 The ALRC also considers that training should be provided to all decision makers to ensure consistent application and understanding of the nature, features and dynamics of family violence.