Verifying family violence

5.54 As discussed above, social security law is ‘beneficial’ legislation. Social security payments are provided to people on the basis of ‘need’. While ensuring that the claims of people who are experiencing family violence are genuinely met, there is also a need to ensure that unintended outcomes or ‘system perversities’ are not created—a theme of this Inquiry discussed in Chapter 2. Likewise, there is a need for checks and balances to ensure that genuine claims are met and that a claim of family violence is not seen as an easy way to gain a social security entitlement or benefit, thereby creating an incentive for a false or manipulated claim of family violence.

5.55 To ensure the integrity of the social security system, it is necessary, in certain circumstances, for Centrelink to verify claims of family violence where it is relevant to a person’s social security payments and entitlements. Consequently, it is necessary for Centrelink to collect information about family violence when it has been disclosed and where it is relevant to a person’s social security payments and entitlements.

5.56 Guidance is provided in the Guide to Social Security Law as to the types of information relevant to different qualification and payability criteria and how it is collected. However, often little or no guidance is provided in relation to the actual collection of information about family violence or safety concerns in different contexts. For example, in relation to exemptions from activity tests and participation requirements on the basis of special family circumstances, the only guidance provided is that exemptions are to be based on a Centrelink social worker’s report.^[42] In other areas, more specific guidance is provided.

When family violence is relevant

5.57 Circumstances of family violence may be relevant to a number of social security outcomes—for example, a breakdown of the relationship between a couple so that they may no longer be assessed, in social security terms, on the basis of that status. Family violence may also lead to safety concerns so that a person can no longer live at home or cause distress that may have other social security consequences.

5.58 In determining whether a person is a member of a couple, the Guide to Social Security Law states that important indicators to consider in relation to the nature of the commitment to each other include evidence of domestic violence, such as ‘court documentation, that may indicate the absence of commitment and/or emotional support’.^[43]

5.59 Reference to ‘domestic violence’ is made in two areas in relation to collecting information to determine separation under one roof. First, when deciding to interview a partner for additional information, discretion must be exercised to ensure that contact is appropriate. ‘Domestic violence’ is provided as an example of when it is not appropriate to interview a partner at all.^[44] Secondly, while independent referees may be called upon to verify the basis of the claim, in circumstances where an independent referee is unable to verify a situation, a departmental social worker’s report may be required—such as in a situation of ‘domestic violence’ where separation is not public knowledge.^[45]

5.60 The assessment of whether a person is independent on the ground of ‘Unreasonable To Live At Home—Extreme Family Breakdown’, is generally conducted by a Centrelink social worker.^[46] Assessment includes personal contact with the claimant, parental contact, third party verification and—for youth protocol cases—contact with state or territory child protection agencies.^[47] It is mandatory to contact the parents of a young person, unless the young person refuses permission or if contact with the parent presents a ‘severe risk’ to the young person or others.^[48]

5.61 Factors to consider as to whether ‘special circumstances’ exist to waive a debt, include the person’s physical and emotional state and decision-making capacity and financial circumstances.^[49] However, the Guide to Social Security Law does not expressly direct the decision maker to consider family violence in determining whether circumstances are ‘special’.

5.62 In relation to ‘Crisis Payment—Remaining in the Home after Removal of Family Member due to Domestic or Family Violence’, the Guide to Social Security Law provides that, in most cases, there is likely to be an apprehended violence order (AVO) with an exclusion provision. However, in cases where the abusive family member leaves without police involvement, verification is to be sought from a third party, such as: doctors; domestic violence services; legal services; crisis workers; other household members; community agencies; schools; and/or child care services.^[50]

5.63 In a submission to the 2005 Senate Employment, Workplace Relations and Education References Committee Inquiry into student income support (the student income support inquiry), the University of Queensland Union expressed concerns about reliance on third party verification for victims of family violence:

The psychological dynamics of any kind of violence or abuse in the home routinely involve an element of secrecy, and often have been difficult for the young person to express. It happens frequently that students who have left home because of unreasonable circumstances have only recently begun to talk about their experiences of violence. Because of this fact, there is rarely anyone who fits the description of ‘independent third party’ in the picture. In the case of non-physical forms of violence, the dynamics may be very hard to see for outside the family dynamic.

Submissions and consultations

5.64 In the Social Security Issues Paper, the ALRC asked a number of questions about the way in which Centrelink collects information about a claim of family violence where it is relevant to a person’s social security payment or entitlement. The ALRC also asked on what information should a claim of family violence be assessed, in particular when contact with a partner or parent is not appropriate.^[51]

5.65 Stakeholders identified a number of barriers to disclosing family violence that may affect a person’s social security payment or entitlement. Barriers to disclosure are discussed further in Chapter 4. Stakeholders made a number of suggestions about the types of information that should be able to be relied upon for a claim of family violence. However, some stakeholders noted concerns about the use of certain types of information and issues concerning the appropriate weight to be placed on different types of information.

5.66 In addition, WEAVE submitted that it was important to provide ‘clear information to clients about the types of verification needed to support claims of family and domestic violence’.^[52]

Type of information

5.67 Some stakeholders considered that the victim’s account of family violence should be sufficient to verify a claim of family violence,^[53]—in particular, where no independent verification is available^[54]—and that the victim should be given the benefit of the doubt.^[55] One stakeholder submitted that ‘it is better to pay ten people incorrectly than to let one genuine claim go by unpaid’.^[56] This position was also suggested as being appropriate for Crisis Payment.^[57]

5.68 The Commonwealth Ombudsman highlighted the need for autonomy, recommending that persons experiencing family violence ‘should be able to choose how they want to declare themselves to others’.^[58] Likewise, the Welfare Rights Centre Queensland submitted that there needed to be ‘a choice of assessment methods, to enable the victim to provide the information’. ^[59]

5.69 Similarly, the ADFVC supported the use of a ‘wide range of evidence to support a claim of experiencing family violence’, including:

a statutory declaration by the victim; documentary records, such as diary entries; records of visits to services, such as health care providers; other agency information (such as that held by the Child Support Agency); third party statements, such as statutory declarations by witnesses, employers or domestic violence services; protection orders; or reports to police.^[60]

5.70 Some stakeholders supported the use of third party verification,^[61] but with the qualification that ‘[i]f no independent expert is available or in situations of urgency, a Centrelink social worker professional assessment should be regarded as sufficient to verify the circumstances’.^[62]

Concerns

5.71 Concerns were highlighted by some stakeholders in relation to the reliance on certain types of information for verification of family violence.

5.72 WEAVE noted concerns about the reliance on third party statements:

Police, health and social work professionals who work with the victim rely on the victim for information about what has happened so engaging with a third party serves only to (1) provide another source to repeat what the victim has said (2) disempower the victim as a potential liar who is not an adequate source of information about what has happened to them.^[63]

5.73 The Welfare Rights Centre NSW also noted that reliance on third parties—such as police reports or community agencies—to inform an assessment is ‘problematic and can lead to unfair treatment of abused women and can place them at risk’. This is demonstrated by the following case study.^[64]

5.74 WEAVE also noted concerns about relying on police reports, submitting that ‘only 36% of women who experienced physical assault by a male perpetrator reported it to the police in 2005’. This indicated that reliance on police reports ‘is likely to exclude two-thirds of victims from being believed by Centrelink’.^[65]

5.75 One stakeholder also noted concerns about overreliance on police reports due to instances ‘where Centrelink has denied crisis payments to victims of family violence on the basis that there was no police involvement’.^[66]

5.76 In a submission to the Family Violence and Commonwealth Laws—Employment and Superannuation Law Issues Paper, ALRC Issues Paper 36 (2011),^[67] WEAVE raised concerns about accessing information from a person’s former employer to establish that they have not voluntarily left their job or caused their dismissal.^[68]

Weight of information

5.77 The Commonwealth Ombudsman submitted that, in obtaining information about family violence from third parties, ‘emphasis should be placed on obtaining information from independent and/or professional people or organisations who may have observed the violence or its effects’ and to

provide guidance to staff that this sort of evidence should generally be preferred over other types of evidence, including statements from people who have a personal relationship with either the victim or the perpetrator.^[69]

ALRC’s views

Fairness

5.78 The ALRC considers that there is a need for transparency in the type of information Centrelink relies on in determining claims of family violence, to ensure fairness in the administration of the social security system. While promoting transparency by making the e-Reference publicly available may address this, such a proposal would be outside the ALRC’s Terms of Reference as it would be broader than just a proposal about family violence. Alternatively, if only the sections of the e-reference that were relevant to family violence were made accessible, this would create a two-tier system of the kind foreshadowed earlier.

5.79 The ALRC proposes that any amendments to the type of information relied on by Centrelink be included in the Guide to Social Security Law as it is the publicly accessible policy guide. This would ensure that victims of family violence and their advocates know what types of information they need to provide to Centrelink for different payments and claims.

5.80 The ALRC also considers that this information should be included in the proposals in Chapter 4 regarding information provision (Proposal 4–8) to increase accessibility and transparency—and therefore fairness—of the decision-making process. Including information about the type of information Centrelink relies upon in verifying a claim of family violence may also reduce the need for a victim of family violence to visit a Centrelink office repeatedly and enable him or her to bring all the required information on the first visit.

System integrity

5.81 The ALRC recognises that verification of family violence is needed in order to maintain the integrity of the system and to ensure a fair distribution of social security according to genuine need. However, not all circumstances should require the same level of verification.

5.82 In this respect, the ALRC considers that the level of verification of family violence should be proportionate to the ‘entitlement’ gained. For example, for Crisis Payment, due to the nature of the payment, the victim’s account should be sufficient whereas, for ‘member of a couple’ determinations and exercise of the ‘special reason’ discretion, the level of verification should be higher. This is because a decision that a person is or is not a ‘member of a couple’ has broader consequences than a decision that a person should receive a one-off Crisis Payment.

Type of information

5.83 In light of the theme of ‘autonomy’ discussed in Chapter 2, it is important that the social security system does not presume a ‘one-size-fits-all’ response. Recognising the individual circumstances of the customer, not every customer will be able to rely on the same type of information. A person who is experiencing family violence should be able to provide a range of information, to be given different weighting. However, it is also important that such an approach does not lead to a ‘tick the box’ approach, nor create administrative barriers to providing information about family violence.

Administrative responses

5.84 The ALRC is also concerned about stakeholders’ comments regarding Centrelink staff responses to information about family violence. It is important that a person who is experiencing family violence be able to access the services and support needed to ensure his or her safety. The ALRC therefore proposes that Centrelink customer service advisers and social workers should be trained on the types of information that a customer can rely on for claims of family violence.

Collecting information from parents, partners and third parties

5.85 Several references in the Guide to Social Security Law are made to collecting information from a person’s partner or parent for the purposes of social security payments or entitlements. In some circumstances, the Guide to Social Security Law states that it may not be appropriate to contact a person’s partner or parent in circumstances of family violence,^[70] or, in relation to ‘Independent—Unreasonable To Live At Home’, where contact with the parent presents a ‘severe risk’ to the young person or others.^[71]

5.86 In the student income support inquiry, the University of Queensland Union submitted that

young people often decide to give permission [to contact a parent] despite the fact that it doesn’t feel appropriate or safe to do so. The requirement that a perpetrator of abuse not be contacted is not helpful here if the definition of abuse is not fully in line with sector standards.

Submissions and consultations

5.87 In the Social Security Issues Paper, the ALRC asked whether Centrelink staff considered the possibility of family violence before deciding to interview a partner or a parent.^[72] The ALRC also asked whether Centrelink customers are aware that Centrelink may decide not to contact a person’s partner or parent if the customer is a victim of family violence.^[73]

5.88 Some stakeholders found that family violence was not consistently considered by Centrelink before a partner or parent was interviewed.^[74] Most stakeholders indicated that improvement is needed to ensure that Centrelink customers are aware that Centrelink has discretion not to contact partners or parents if the customer is a victim of family violence.^[75] Specifically, the Welfare Rights Centre NSW stated that, if customers are not aware of such discretion, it could ‘act to deter people who have experienced violence from raising the issue with authorities because they fear retribution’.^[76]

5.89 The Commonwealth Ombudsman was

supportive of arrangements that protect vulnerable customers and enable them to access entitlements without fear of recrimination balanced with the need for procedural fairness in situations where disclosures of family violence may have a flow-on effect for the entitlements of the alleged perpetrator.^[77]

5.90 Stakeholders also considered it important that customers be made aware that ‘Centrelink has the discretion not to contact partners or parents if the customer is a victim of family violence’.^[78]

ALRC’s views

5.91 A partner or parent may be one of the best sources to verify certain information relevant to a person’s social security payment or entitlement. However, in circumstances involving family violence, contact with a parent or partner, or indeed another family member, may not be appropriate. Contacting a family member may, in some circumstances, jeopardise the safety of a victim of family violence. In such circumstances, other sources of verification should be used.

5.92 Victims of family violence need to be aware that a partner, parent or other family member may not be contacted in circumstances of family violence; otherwise the person experiencing family violence may be deterred from disclosing family violence for fear of retribution.

5.93 The ALRC holds an additional concern that, for ‘Independent—Unreasonable To Live At Home’, the Guide to Social Security Law refers to a ‘severe risk’ to the young person. The ALRC considers that the reference to ‘severe’ might create too high a threshold and should refer to ‘risk’ without the qualification of ‘severe’.

5.94 In this regard, the ALRC makes proposals in relation to:

• ensuring consistency throughout the Guide to Social Security Law in relation to when it is not appropriate to contact a family member (including a parent or partner) in circumstances of family violence;

• consistent, regular and ongoing training of Centrelink customer service advisers and social workers about the discretion not to contact a parent or partner where family violence has been raised as a concern; and

• information provided to Centrelink customers about the discretion of Centrelink staff not to contact a partner or parent in circumstances of family violence (Proposal 4–8).

5.95 In implementing these proposals, care will need to be taken to ensure procedural fairness is afforded to any person who is alleged to have used family violence. For example, to ensure that where the person alleged to have used family violence is also a recipient of social security payments or entitlements, this allegation does not adversely affect their entitlements without the opportunity to present their case.

Access to the National Register

5.96 In the Family Violence—A National Legal Response, the Commissions considered that the capacity for family violence protection orders to be enforced across jurisdictions was essential to the safety of victims of family violence. To facilitate this, the Commissions supported the development of a national register of protection orders, family law orders and Family Law Act injunctions (the National Register),^[79] on the basis that this would allow victims of family violence to move seamlessly from one jurisdiction to another without the need to take action to register a family violence order in the second jurisdiction and would also ensure that police in the second jurisdiction are aware of the existence of the order.^[80]

5.97 The Commissions recommended that the National Register be available to federal, state and territory police, federal family courts, state and territory courts that hear matters related to family violence and child protection, and child protection agencies.^[81]

Submissions and consultations

5.98 In the Social Security Issues Paper, the ALRC asked whether Centrelink staff and social workers should be able to access the National Register recommended in Family Violence—A National Legal Response.^[82]

5.99 Some stakeholders supported Centrelink staff having access to the National Register,^[83] subject to certain conditions such as: consent;^[84] training and security measures;^[85] and access being conditional on the person having first disclosed family violence.^[86]

5.100 Welfare Rights Centre Queensland noted that ‘such access could be helpful for some victims, if they had lost the relevant documents’.^[87] Others noted that it could be a suitable source of information^[88] and provide supporting evidence of the existence of family violence.^[89]

5.101 However, a number of concerns were raised about providing access to the National Register, including that:

• there may difficulties in ensuring privacy of a customer’s information^[90] and it may be misused;^[91]

• not all Centrelink customers who experience family violence would obtain a protection order or similar court order against the person using family violence^[92] for various reasons including issues preventing a victim from reporting family violence such as the ‘dominance of the perpetrator over the victim; the severity, or perceived severity of such an act on a partner; the lack of knowledge or acceptance that a victim’s situation is as serious as it is and the willingness of most victims to hide or excuse behaviour’;^[93]

• it may lead to an assumption that if there is nothing on the National Register, there is no violence^[94] and ‘[a] number of assumptions may be made by a staff member when a check of the national register reveals that a protection order has been obtained’;^[95] and

• the National Register may not be current to enable verification of family violence ‘which may create further complexities if a person refers to a recent order that is not on the register’.^[96]

ALRC’s views

5.102 While the ALRC considers that it may be useful for Centrelink customer service advisers and social workers to have access to the National Register, there are a number of reasons why access to the register should not be extended in this way.

5.103 First, as stakeholders have argued, there are a number of concerns in relation to ensuring that the National Register is used appropriately within an agency like Centrelink. These concerns related to privacy, possible misuse and the making of inaccurate assumptions by Centrelink staff.

5.104 Secondly, the ALRC recommended that the National Register be used primarily by the police and the courts to enforce protection orders across jurisdictional boundaries. In other words, the purpose of the National Register is to assist in enforcement, rather than to enable information to be provided to a service provider about family violence. While access to the National Register would assist victims of family violence who have lost, or cannot access their protection order, in most other circumstances, a victim of family violence would be able to produce the protection order itself, or obtain a copy of it from a court. If a National Register is implemented along the lines suggested, this would help applicants who have moved jurisdictions to be able to obtain a copy of the family violence protection order.

5.105 The ALRC considers that better information dissemination to victims of family violence about how to obtain a copy of a family violence protection order from a court is a more measured approach to ensuring that victims of family violence are able to present information on which to base a claim of family violence.