18.08.2011

List of Proposals and Questions

3. Common Interpretative Framework

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;

(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.

Proposal 3–2 The Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth) should be amended to provide for a consistent definition of family violence as proposed in Proposal 3–1.

Proposal 3–3 A New Tax System (Family Assistance) Act 1999 (Cth) should be amended to provide for a consistent definition of family violence as proposed in Proposal 3–1.

Proposal 3–4 A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) should be amended to provide for a consistent definition of family violence as proposed in Proposal 3–1.

Proposal 3–5 The Fair Work Act 2009 (Cth) should be amended to provide for a consistent definition of family violence as proposed in Proposal 3–1.

Proposal 3–6 The following guidelines and material should be amended to provide for a consistent definition of family violence as proposed in Proposal 3–1:

Department of Education, Employment and Workplace Relations and Job Services Australia Guidelines, Advices and Job Aids;
Safe Work Australia Codes of Practice and other material;
Fair Work Australia material; and
other similar material.

Proposal 3–7 The Superannuation Industry (Supervision) Regulations 1994 (Cth) and, where appropriate, all Australian Prudential Regulation Authority, Australian Taxation Office and superannuation fund material, should be amended to provide for a consistent definition of family violence as proposed in Proposal 3–1.

Proposal 3–8 The Migration Regulations 1994 (Cth) should be amended to provide for a consistent definition of family violence as proposed in Proposal 3–1.

Proposal 3–9 The Department of Immigration and Citizenship’s Procedures Advice Manual 3 for decision makers should include examples to illustrate coercive and controlling conduct that may amount to family violence, including but not limited to:

(a) the threat of removal; and

(b) violence perpetrated by a family member of the sponsor at the instigation, or through the coercion, of the sponsor.

4. Screening, Information Sharing and Privacy

Proposal 4–1 Information about screening for family violence by Child Support Agency and Family Assistance Office staff and Centrelink customer service advisers, social workers, Indigenous Service Officers and Multicultural Service Officers should be included in the Child Support Guide, the Family Assistance Guide and the Guide to Social Security Law.

Proposal 4–2 Child Support Agency and Family Assistance Office staff and Centrelink customer service advisers, social workers, Indigenous Service Officers and Multicultural Service Officers should routinely screen for family violence when commencing the application process with a customer, immediately after that, and at defined intervals and trigger points (as identified in Chapters 5 and 9–11).

Proposal 4–3 Screening for family violence by Child Support Agency and Family Assistance Office staff and Centrelink customer service advisers, social workers, Indigenous Service Officers and Multicultural Service Officers should be conducted through different formats including through:

electronic and paper claim forms and payment booklets;
in person;
posters and brochures;
recorded scripts for call waiting;
telephone prompts;
websites; and
specific publications for customer groups such as News for Seniors.

Proposal 4–4 In conducting screening for family violence, Child Support Agency and Family Assistance Office staff and Centrelink customer service advisers, social workers, Indigenous Service Officers and Multicultural Service Officers should take into consideration a customer’s cultural and linguistic background as well as a person’s capacity to understand, such as due to cognitive disability.

Question 4–1 In addition to the initial point of contact with the customer, at what trigger points should Child Support Agency and Family Assistance Office staff and Centrelink customer service advisers, social workers, Indigenous Service Officers and Multicultural Service Officers screen for family violence?

Proposal 4–5 Child Support Agency and Family Assistance Office staff and Centrelink customer service advisers, social workers, Indigenous Service Officers and Multicultural Service Officers should receive regular and consistent training and support (including resource manuals and information cards) in:

screening for family violence sensitively; and
responding appropriately to disclosure of family violence, including by making referrals to Centrelink social workers.

Proposal 4–6 Training provided to Child Support Agency and Family Assistance Office staff, and Centrelink customer service advisers, social workers, Indigenous Service Officers and Multicultural Service Officers should include:

the nature, features and dynamics of family violence, and its impact on victims, in particular those from high risk and vulnerable groups;
recognition of the impact of family violence on particular customers such as Indigenous peoples; those from culturally and linguistically diverse backgrounds; those from lesbian, gay, bisexual, trans and intersex communities; children and young people; older persons; and people with disability;
training to ensure customers who disclose family violence, or fear for their safety, know about their rights and possible service responses, such as those listed in Proposal 4–8; and
training in relation to responding appropriately to and interviewing victims of family violence. In particular, training for Centrelink customer service advisers and social workers should include information about the potential impact of family violence on a job seeker’s barriers to employment.

Proposal 4–7 The Department of Human Services should ensure that monitoring and evaluation of processes for screening for family violence is conducted regularly and the outcomes of such monitoring and evaluation are made public.

Proposal 4–8 The Child Support Guide, the Family Assistance Guide and the Guide to Social Security Law should provide that Child Support Agency and Family Assistance Office staff and Centrelink customer service advisers, social workers, Indigenous Service Officers and Multicultural Service Officers should give allcustomers information about how family violence may be relevant to the child support, family assistance, social security and Job Services Australia systems. This should include, but is not limited to:

exemptions;
entitlements;
information protection;
support and services provided by the agencies;
referrals; and
income management.

Proposal 4–9 The Department of Human Services and other relevant departments and agencies should develop a protocol to ensure that disclosure of family violence by a customer prompts the following service responses:

case management, including provision of information in Proposal 4–8, and additional services and resources where necessary; and
the treatment of that information as highly confidential with restricted access.

Proposal 4–10 The Guide to Family Assistance and the Child Support Guide should provide that where family violence is identified through the screening process, or otherwise, Centrelink, Child Support Agency and Family Assistance Office staff must refer the customer to a Centrelink social worker.

Proposal 4–11 Where family violence is identified through the screening process or otherwise, a ‘safety concern flag’ should be placed on the customer’s file.

Proposal 4–12 The ‘safety concern flag’ only (not the customer’s entire file) should be subject to information sharing as discussed in Proposal 4–13.

Proposal 4–13 If a ‘safety concern flag’ is developed in accordance with Proposal 4–11, the Department of Human Services and other relevant departments and agencies should develop inter-agency protocols for information sharing between agencies in relation to the ‘safety concern flag’. Parties to such protocols should receive regular and consistent training to ensure that the arrangements are effectively implemented.

Proposal 4–14 The Department of Human Services and other relevant departments and agencies should consider issues, including appropriate privacy safeguards, with respect to the personal information of individual customers who have disclosed family violence in the context of their information-sharing arrangements.

Proposal 4–15 The Department of Human Services and other relevant departments and agencies should develop policies and statements relating to family violence and child protection, to ensure consistency in service responses. These policies should be published on the agencies’ websites and be included in the information provided to customers in Proposal 4–8.

5. Social Security—Overview and Overarching Issues

Proposal 5–1 The Guide to Social Security Law should be amended to include:

(a) the definition of family violence in Proposal 3–1; and

(b) the nature, features and dynamics of family violence including: while anyone may be a victim of family violence, or may use family violence, it is predominantly committed by men; it can occur in all sectors of society; it can involve exploitation of power imbalances; its incidence is underreported; and it has a detrimental impact on children.

In addition, the Guide to Social Security Law should refer to the particular impact of family violence on: Indigenous peoples; those from a culturally and linguistically diverse background; those from the lesbian, gay, bisexual, trans and intersex communities; older persons; and people with disability.

Proposal 5–2 Centrelink customer service advisers, social workers and members of the Social Security Appeals Tribunal and Administrative Appeals Tribunal should receive consistent and regular training on the definition of family violence, including the nature, features and dynamics of family violence, and responding sensitively to victims of family violence.

Proposal 5–3 The Guide to Social Security Law should be amended to provide that the following forms of information to support a claim of family violence may be used, including but not limited to:

statements including statutory declarations;
third party statements such as statutory declarations by witnesses, employers or family violence services;
social worker’s reports;
documentary records such as diary entries, or records of visits to services, such as health care providers;
other agency information (such as held by the Child Support Agency);
protection orders; and
police reports and statements.

Proposal 5–4 The Guide to Social Security Law should be amended to include guidance as to the weight to be given to different types of information provided to support a claim of family violence, in the context of a particular entitlement or benefit sought.

Proposal 5–5 Centrelink customer service advisers and social workers should receive consistent and regular training in relation to the types of information that a person may rely on in support of a claim of family violence.

Proposal 5–6 The Guide to Social Security Law should be amended to provide that, where a person claims that they are experiencing family violence by a family member or partner, it is not appropriate to seek verification of family violence from that family member or partner.

Proposal 5–7 Centrelink customer service advisers and social workers should receive consistent and regular training in relation to circumstances when it is not appropriate to seek verification of family violence from a person’s partner or family member.

Proposal 5–8 Centrelink customer service advisers and social workers should be required to screen for family violence when negotiating and revising a person’s Employment Pathway Plan.

Question 5–1 At what other trigger points, if any, should Centrelink customer service advisers and social workers be required to screen for family violence?

Proposal 5–9 A Centrelink Deny Access Facility restricts access to a customer’s information to a limited number of Centrelink staff. The Guide to Social Security Law should be amended to provide that, where a customer discloses family violence, he or she should be referred to a Centrelink social worker to discuss a Deny Access Facility classification.

Question 5–2 Should Centrelink place a customer who has disclosed family violence on the ‘Deny Access Facility’:

(a) at the customer’s request; or

(b) only on the recommendation of a Centrelink social worker?

6. Social Security—Relationships

Proposal 6–1 The Guide to Social Security Law should be amended to reflect the way in which family violence may affect the interpretation and application of the criteria in s 4(3) of the Social Security Act 1991 (Cth).

Proposal 6–2 Centrelink customer service advisers and social workers should receive consistent and regular training in relation to the way in which family violence may affect the interpretation and application of the criteria in s 4(3) of the Social Security Act 1991 (Cth).

Proposal 6–3 The Guide to Social Security Law should be amended expressly to include family violence as a circumstance where a person may be living separately and apart under one roof.

Proposal 6–4 The Guide to Social Security Law should be amended to direct decision makers expressly to consider family violence as a circumstance that may amount to a ‘special reason’ under s 24 of the Social Security Act 1991 (Cth).

Question 6–1 With respect to the discretion under s 24 of the Social Security Act 1991 (Cth):

(a) is the discretion accessible to those experiencing family violence;

(b) what other ‘reasonable means of support’ would need to be exhausted before a person could access s 24; and

Proposal 6–5 The Guide to Social Security Law should be amended expressly to refer to family violence, child abuse and neglect as a circumstance in which it may be ‘unreasonable to live at home’ under the provisions of ‘extreme family breakdown’—Social Security Act 1991 (Cth)ss 1067A(9)(a)(i), 1061PL(7)(a)(i); and ‘serious risk to physical or mental well-being’—Social Security Act 1991 (Cth)ss 1067A(9)(a)(ii), 1061PL(7)(a)(ii).

Question 6–2 Should the Social Security Act 1991 (Cth)also be amended expressly to refer to family violence, child abuse and neglect as an example of when it is ‘unreasonable to live at home’?

Question 6–3 Should ss 1067A(9)(a)(ii) and 1061PL(7)(a)(ii) of the Social Security Act 1991 (Cth) be amended:

(a) expressly to take into account circumstances where there has been, or there is a risk of, family violence, child abuse, neglect; and

(b) remove the requirement for the decision maker to be satisfied of ‘a serious risk to the person’s physical or mental well-being’?

Proposal 6–6 DEEWR and Centrelink should review their policies, practices and training to ensure that, in cases of family violence, Youth Allowance, Disability Support Pension and Pensioner Education Supplement, applicants do not bear sole responsibility for providing specific information about:

(a) the financial circumstances of their parents; and

(b) the level of ‘continuous support’ available to them.

7. Social Security—Proof of Identity, Residence and Activity Tests

Question 7–1 In practice, is the form, ‘Questions for Persons with Insufficient Proof of Identity’, sufficient to enable victims of family violence to provide an alternate means of proving identity?

Proposal 7–1 The Guide to Social Security Law should be amended expressly to include family violence as a reason for an indefinite exemption from the requirement to provide a partner’s tax file number.

Question 7–2 Section 192 of the Social Security (Administration) Act 1999 (Cth) confers certain information-gathering powers on the Secretary of FaHCSIA. In practice, is s 192 of the Social Security (Administration) Act 1999 (Cth) invoked to require the production of tax file numbers or information for the purposes of proof of identity? If not, should s 192 be invoked in this manner in circumstances where a person fears for his or her safety?

Question 7–3 When a person does not have a current residential address, what processes are currently in place for processing social security applications?

Proposal 7–2 Proposal 20–3 proposes that the Migration Regulations 1994 (Cth)be amended to allow holders of Prospective Marriage (Subclass 300) visas to move onto another temporary visa in circumstances of family violence. If such an amendment is made, the Minister of FaHCSIA should make a Determination including this visa as a ‘specified subclass of visa’ that:

meets the residence requirements for Special Benefit; and
is exempted from the Newly Arrived Resident’s Waiting Period for Special Benefit.

Question 7–4 Should the Minister of FaHCSIA make a Determination including certain temporary visa holders—such as student, tourist and secondary holders of Subclass 457 visas—as a ‘specified subclass of visa’ that:

meets the residence requirements for Special Benefit?
is exempted from the Newly Arrived Resident’s Waiting Period for Special Benefit?

Question 7–5 What alternatives to exemption from the requirement to be an Australian resident could be made to ensure that victims of family violence, who are not Australian residents, have access to income support to protect their safety?

Question 7–6 In what way, if any, should the Social Security Act 1991 (Cth) or the Guide to Social Security Law be amended to ensure that newly arrived residents with disability, who are victims of family violence, are able to access the Disability Support Pension? For example, should the qualifying residence period for Disability Support Pension be reduced to 104 weeks where a person is a victim of family violence?

Proposal 7–3 The Guide to Social Security Law should be amended expressly to include family violence as an example of a ‘substantial change in circumstances’ for the Newly Arrived Resident’s Waiting Period for Special Benefit for both sponsored and non-sponsored newly arrived residents.

Question 7–7 What changes, if any, are needed to improve the safety of victims of family violence who do not meet the Newly Arrived Resident’s Waiting Period for payments other than Special Benefit?

Proposal 7–4 Centrelink customer service advisers should receive consistent and regular training in the administration of the Job Seeker Classification Instrument including training in relation to:

the potential impact of family violence on a job seeker’s capacity to work and barriers to employment, for the purposes of income support; and
the availability of support services.

Question 7–8 In practice, to what extent can, or do, recommendations made by ESAt or JCA assessors in relation to activity tests, participation requirements, Employment Pathway Plans and exemptions account for the needs and experiences of job seekers experiencing family violence?

Question 7–9 In practice, is family violence adequately taken into account by a Centrelink specialist officer in conducting a Comprehensive Compliance Assessment?

Question 7–10 What changes, if any, to the Employment Pathway Plan and exemption processes could ensure that Centrelink captures and assesses the circumstances of job seekers experiencing family violence?

Proposal 7–5 The Guide to Social Security Law should expressly direct Centrelink customer service advisers to consider family violence when tailoring a job seeker’s Employment Pathway Plan.

Proposal 7–6 Exemptions from activity tests, participation requirements and Employment Pathway Plans are available for a maximum of 13 or 16 weeks. The ALRC has heard concerns that exemption periods granted to victims of family violence do not always reflect the nature of family violence. DEEWR should review exemption periods to ensure a flexible response for victims of family violence—both principal carers and those who are not principal carers.

Question 7–11 In practice, what degree of flexibility does Centrelink have in its procedures for customers experiencing family violence:

(a) to engage with Centrelink in negotiating or revising an Employment Pathway Plan; or

(b) apply for or extending an exemption.

Are these procedures sufficient to ensure the safety of victims of family violence is protected?

Question 7–12 A 26 week exclusion period applies to a person who moves to an area of lower employment prospects. An exemption applies where the reason for moving is due to an ‘extreme circumstance’ such as family violence in the ‘original place of residence’. What changes, if any, are necessary to ensure that victims of family violence are aware of, and are making use of, the exemption available from the 26 week exclusion period? For example, is the term ‘original place of residence’ interpreted in a sufficiently broad manner to encapsulate all forms of family violence whether or not they occur within the ‘home’?

Proposal 7–7 The Guide to Social Security Law should expressly refer to family violence as a ‘reasonable excuse’ for the purposes of activity tests, participation requirements, Employment Pathway Plans and other administrative requirements.

Question 7–13 Centrelink can end a person’s ‘Unemployment Non-Payment Period’ in defined circumstances. In practice, are these sufficiently accessible to victims of family violence?

8. Social Security—Payment Types and Methods, and Overpayment

Proposal 8–1 The Social Security Act 1991 (Cth) establishes a seven day claim period for Crisis Payment. FaHCSIA should review the seven day claim period for Crisis Payment to ensure a flexible response for victims of family violence.

Question 8–1 Crisis Payment is available to social security recipients or to those who have applied, and qualify, for social security payments. However, Special Benefit is available to those who are not receiving, or eligible to receive, social security payments. What reforms, if any, are needed to ensure that Special Benefit is accessible to victims of family violence who are otherwise ineligible for Crisis Payment?

Proposal 8–2 Crisis Payment for family violence currently turns on either the victim of family violence leaving the home or the person using family violence being removed from, or leaving, the home. The Social Security Act 1991 (Cth) should be amended to provide Crisis Payment to any person who is ‘subject to’ or ‘experiencing’ family violence.

Proposal 8–3 The Guide to Social Security Law provides that an urgent payment of a person’s social security payment may be made in ‘exceptional and unforeseen’ circumstances. As urgent payments may not be made because the family violence was ‘foreseeable’, the Guide to Social Security Law should be amended expressly to refer to family violence as a separate category of circumstance when urgent payments may be sought.

Proposal 8–4 The Guide to Social Security Law should be amended to provide that urgent payments and advance payments may be made in circumstances of family violence in addition to Crisis Payment.

Proposal 8–5 The Guide to Social Security Law should be amended to provide that, where a delegate is determining a person’s ‘capability to consent’, the effect of family violence is also considered in relation to the person’s capability.

Question 8–2 When a person cannot afford to repay a social security debt, the amount of repayment may be negotiated with Centrelink. In what way, if any, should flexible arrangements for repayment of a social security debt for victims of family violence be improved? For example, should victims of family violence be able to suspend payment of their debt for a defined period of time?

Proposal 8–6 Section 1237AAD of the Social Security Act 1991 (Cth) provides that the Secretary of FaHCSIA may waive the right to recover a debt where special circumstances exist and the debtor or another person did not ‘knowingly’ make a false statement or ‘knowingly’ omit to comply with the Social Security Act. Section 1237AAD should be amended to provide that the Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that ‘the debt did not result wholly or partly from the debtor or another person acting as an agent for the debtor’.

Proposal 8–7 The Guide to Social Security Law should be amended expressly to refer to family violence as a ‘special circumstance’ for the purposes of s 1237AAD of the Social Security Act 1991 (Cth).

9. Child Support—Frameworks, Assessment and Collection

Proposal 9–1 The Child Support Guide should be amended to include:

(a) the definition of family violence in Proposal 3–1; and

In addition, the Child Support Guide should refer to the particular impact of family violence on: Indigenous peoples; those from a culturally and linguistically diverse background; those from the lesbian, gay, bisexual, trans and intersex communities; older persons; and people with disability.

Proposal 9–2 The Child Support Guide should provide that the Child Support Agency should screen for family violence when a payee:

(a) requests or elects to end a child support assessment;

(b) elects to end Child Support Agency collection of child support and arrears; or

(c) requests that the Child Support Agency not commence, or terminate, enforcement action or departure prohibition orders.

Proposal 9–3 The Child Support Guide should provide that Child Support Agency staff refer to Centrelink social workers payees who have disclosed family violence, when the payee:

(a) requests or elects to end a child support assessment;

(b) elects to end Child Support Agency collection of child support and arrears; or

(c) requests that the Child Support Agency terminate, or not commence, enforcement action or departure prohibition orders.

Proposal 9–4 The Child Support Guide should provide that the Child Support Agency should contact a customer to screen for family violence prior to initiating significant action against the other party, including:

(a) departure determinations;

(b) court actions to recover child support debt; and

Proposal 9–5 The Child Support Guide should provide that, when a customer has disclosed family violence, the Child Support Agency should consult with the customer and consider concerns regarding the risk of family violence, prior to initiating significant action against the other party, including:

(a) departure determinations;

(b) court actions to recover child support debt; and

Proposal 9–6 The Child Support Guide should provide that the Child Support Agency should screen for family violence prior to requiring a payee to collect privately pursuant to s 38B of the Child Support (Registration and Collection) Act 1988 (Cth).

10. Child Support—Agreements, Personal Information, Informal Carers

Question 10–1 Should the Child Support Agency ensure that notices of assessment pursuant to s 76 of the Child Support (Assessment) Act) 1989 (Cth) do not include parties’ names?

Proposal 10–1 The Child Support Guide should provide that Child Support Agency forms or supporting documentation containing offensive material should be referred to a senior officer. The senior officer should determine whether to inform the other party of the offensive material and, where requested, provide it to the other party.

Proposal 10–2 The Child Support Guide should provide that, where a customer discloses family violence, he or she should be referred to a Centrelink social worker to discuss a Restricted Access Customer System classification.

Question 10–2 Should the Child Support Agency provide a Restricted Access Customer System classification to a customer who has disclosed family violence:

(a) at the customer’s request; or

(b) only on the recommendation of a Centrelink social worker?

Proposal 10–3 Where the Child Support Agency receives a threat against a customer’s life, health or welfare by another party to the child support case, the Child Support Guide should provide that the Child Support Agency will:

(a) place a safety concern flag on the threatened customer’s file; and

(b) refer the threatened person to a Centrelink social worker.

Question 10–3 What reforms, if any, are necessary to improve the safety of victims of family violence who are child support payers?

The next proposals are presented as alternate options: Proposal 10–4 OR Proposals 10–5, 10–6 and Question 10–4

OPTION ONE: Proposal 10–4

Proposal 10–4 Section 7B(2)–(3) of the Child Support (Assessment) Act 1989 (Cth) limits child support eligibility to parents and legal guardians, except in certain circumstances. The limitation on the child support eligibility of carers who are neither parents nor legal guardians in section 7B(2)–(3) of the Child Support (Assessment) Act 1989 (Cth) should be repealed.

OPTION TWO: Proposals 10–5, 10–6 and 10–7, and Question 10–4

Proposal 10–5 The Child Support (Assessment) Act 1989 (Cth) provides that, where a parent or legal guardian of a child does not consent to a person caring for that child, the person is ineligible for child support, unless the Registrar is satisfied of:

‘extreme family breakdown’—s 7B(3)(a); or
‘serious risk to the child’s physical or mental wellbeing from violence or sexual abuse’ in the parent or legal guardian’s home—s 7B(3)(b).

Section 7B(3)(b) of the Child Support (Assessment) Act 1989 (Cth) should be amended to:

(a) expressly take into account circumstances where there has been, or there is a risk of, family violence, child abuse and neglect; and

(b) remove the requirement for the Registrar to be satisfied of ‘a serious risk to the child’s physical or mental wellbeing’.

Proposal 10–6 The Child Support Guide should provide that:

(a) where a person who is not a parent or legal guardian carer applies for child support; and

(b) a parent or legal guardian advises the Child Support Agency that he or she does not consent to the care arrangement; and

the following should occur:

(1) a Centrelink social worker should assess whether it is unreasonable for the child to live with the parent or legal guardian who does not consent, and make a recommendation; and

(2) a senior Child Support Agency officer should determine if it is unreasonable for the child to live with the parent or legal guardian who does not consent, giving consideration to the Centrelink social worker’s recommendation.

Proposal 10–7 The Child Support Guide should include guidelines for assessment of circumstances in which it may be unreasonable for a child to live with a parent or legal guardian.

Question 10–4 Should the Child Support Guide be amended to specify the Child Support Agency’s response to an application for child support from a carer who is not a parent or legal guardian of the child, where:

(a) only one of the child’s parents consents to the care arrangements; or

(b) neither of the child’s parent consents to the care arrangements, and it is unreasonable for the child to live with one parent?

In practice, how does the Child Support Agency respond to an application for child support in these circumstances?

11. Child Support and Family Assistance—Intersections and Alignments

Proposal 11–1 Exemption policy in relation to the requirement to take ‘reasonable maintenance action’ is included in the Family Assistance Guide and the Child Support Guide, and not in legislation. A New Tax System (Family Assistance) Act 1999 (Cth) should be amended to provide that a person who receives more than the base rate of Family Tax Benefit Part A may be exempted from the requirement to take ‘reasonable maintenance action’ on specified grounds, including family violence.

Proposal 11–2 The Family Assistance Guide should be amended to provide additional information regarding:

(a) the duration, and process for determining the duration, of family violence exemptions from the ‘reasonable maintenance action’ requirement; and

(b) the exemption review process.

Proposal 11–3 The Centrelink e-Reference includes information and procedure regarding partial exemptions from the ‘reasonable maintenance action’ requirement. The Family Assistance Guide should be amended to make clear the availability of these partial exemptions.

12. Family Assistance

Proposal 12–1 The Family Assistance Guide should be amended to include:

(a) the definition of family violence in Proposal 3–1; and

In addition, the Family Assistance Guide should refer to the particular impact of family violence on: Indigenous peoples; those from a culturally and linguistically diverse background; those from the lesbian, gay, bisexual, trans and intersex communities; older persons; and people with disability.

Proposal 12–2 The Family Assistance Guide should be amended expressly to include ‘family violence’ as a reason for an indefinite exemption from the requirement to provide a partner’s tax file number.

Proposal 12–3 In relation to Child Care Benefit for care provided by an approved child care service, the Family Assistance Guide should list family violence as an example of ‘exceptional circumstances’ for the purposes of:

(a) exceptions from the work/training/study test; and

(b) circumstances where more than 50 hours of weekly Child Care Benefit is available.

Proposal 12–4 A New Tax System (Family Assistance) Act 1999 (Cth) provides that increases in weekly Child Care Benefit hours and higher rates of Child Care Benefit are payable when a child is at risk of ‘serious abuse or neglect’. A New Tax System (Family Assistance) Act 1999 (Cth) should be amended to omit the word ‘serious’, so that such increases to Child Care Benefit are payable when a child is at risk of abuse or neglect.

Proposal 12–5 The Family Assistance Guide should be amended to provide definitions of abuse and neglect.

13. Income Management—Social Security Law

Proposal 13–1 The Social Security (Administration) Act 1999 (Cth)and the Guide to Social Security Law should be amended to ensure that a person or persons experiencing family violence are not subject to Compulsory Income Management.

Question 13–1 Are there particular needs of people experiencing family violence, who receive income management, that have not been identified?

Proposal 13–2 In order to inform the development of a voluntary income management system, the Australian Government should commission an independent assessment of voluntary income management on people experiencing family violence, including the consideration of the Cape York Welfare Reform model of income management.

Proposal 13–3 Based on the assessment of the Cape York Welfare Reform model of income management in Proposal 13–2, the Australian Government should amend the Social Security (Administration) Act 1999 (Cth) and the Guide to Social Security Law to create a more flexible Voluntary Income Management model.

Question 13–2 In what other ways, if any, could Commonwealth social security law and practice be improved to better protect the safety of people experiencing family violence?

Proposal 13–4 Priority needs, for the purposes of s 123TH of the Social Security (Administration) Act 1999 (Cth) are goods and services that are not excluded for the welfare recipient to purchase. The definition of ‘priority needs’ in s 123TH and the Guide to Social Security Law should be amended to include travel or other crisis needs for people experiencing family violence.

14. Employment Law—Overarching Issues and a National Approach

Question 14–1 In addition to removal of the employee records exemption in the Privacy Act 1988 (Cth), what reforms, if any, are needed to protect the personal information of employees who disclose family violence for the purposes of accessing new entitlements such as those proposed in Chapters 16 and 17?

Proposal 14–1 There is a need to safeguard the personal information of employees who have disclosed family violence in the employment context. The Office of the Australian Information Commissioner and the Fair Work Ombudsman should, in consultation with unions and employer organisations:

(a) develop a model privacy policy which incorporates consideration of family violence-related personal information; and

(b) develop or revise guidance for employers in relation to their privacy obligations where an employee discloses, or they are aware of, family violence.

Proposal 14–2 The Australian Government should initiate a national education and awareness campaign about family violence in the employment context.

Proposal 14–3 Section 653 of the Fair Work Act 2009 (Cth) should be amended to provide that Fair Work Australia must, in conducting the review and research required under that section, consider family violence-related developments and the effect of family violence on the employment of those experiencing it, in relation to:

(a) enterprise agreements;

(b) individual flexibility arrangements; and

Question 14–2 In addition to review and research by Fair Work Australia, what is the most appropriate mechanism to capture and make publicly available information about the inclusion of family violence clauses in enterprise agreements?

Question 14–3 How should Fair Work Australia collect data in relation to the incidence and frequency with which family violence is raised in unfair dismissal and general protections matters?

Proposal 14–4 In the course of its 2012 and 2014 reviews of modern awards, Fair Work Australia should consider issues relating to data collection.

15. The Pre-Employment Stage

Question 15–1 In what ways, if any, should the Australian Government include a requirement in requests for tender and contracts for employment services that JSA and DES providers demonstrate an understanding of, and systems and policies to address, the needs of job seekers experiencing family violence?

Question 15–2 How is personal information about individual job seekers shared between Centrelink, DEEWR, the Department of Human Services, and JSA, DES and IEP providers?

Question 15–3 How does, or would, the existence of a Centrelink ‘Deny Access Facility’, or other similar safety measures, such as a ‘safety concern flag’, affect what information about job seekers DEEWR and JSA and DES providers can access?

Proposal 15–1 Centrelink, DEEWR, JSA, DES and IEP providers, and ESAt and JCA assessors (through the Department of Human Services) should consider issues, including appropriate privacy safeguards, with respect to the personal information of individual job seekers who have disclosed family violence in the context of their information-sharing arrangements.

Proposal 15–2 The current circumstances in which a job seeker can change JSA or DES providers should be extended to circumstances where a job seeker who is experiencing family violence is registered with the same JSA or DES provider as the person using family violence.

Question 15–4 Should JSA and DES providers routinely screen for family violence? If so:

what should the focus of screening be;
how, and in what manner and environment, should such screening be conducted; and
when should such screening be conducted?

Question 15–5 Under the Job Seeker Classification Instrument Guidelines if a job seeker discloses family violence, the job seeker should immediately be referred to a Centrelink social worker. What reforms, if any, are necessary to ensure this occurs in practice?

Proposal 15–3 JSA and DES providers should introduce specialist systems and programs for job seekers experiencing family violence—for example, a targeted job placement program.

Proposal 15–4 As far as possible, or at the request of the job seeker, all Job Seeker Classification Instrument interviews should be conducted in:

(a) person;

(b) private; and

Question 15–6 The Job Seeker Classification Instrument includes a number of factors, or categories, including ‘living circumstances’ and ‘personal characteristics’. Should DEEWR amend those categories to ensure the Job Seeker Classification Instrument incorporates consideration of safety or other concerns arising from the job seeker’s experience of family violence?

Proposal 15–5 DEEWR should amend the Job Seeker Classification Instrument to include ‘family violence’ as a new and separate category of information.

Question 15–7 A job seeker is referred to an ESAt or JCA where the results of the Job Seeker Classification Instrument indicate ‘significant barriers to work’. Should the disclosure of family violence by a job seeker automatically constitute a ‘significant barrier to work’ and lead to referral for an ESAt or JCA?

Question 15–8 Where a job seeker has disclosed family violence, should there be streaming of job seekers to ESAt and JCA assessors with specific qualifications or expertise with respect to family violence, where possible?

Question 15–9 When conducting an ESAt or JCA, how do assessors consider the impact of family violence on a job seeker’s readiness to work? What changes, if any, could ensure that ESAts and JCAs capture and assess the circumstances of job seekers experiencing family violence?

Question 15–10 In practice, to what extent can, or do, recommendations made by ESAt or JCA assessors in relation to stream placement or referral to DES account for the needs and experiences of job seekers experiencing family violence?

Proposal 15–6 DEEWR and the Department of Human Services should require that all JSA, DES and IEP provider staff and ESAt and JCA assessors receive regular and consistent training in relation to:

(a) the nature, features and dynamics of family violence, including: while anyone may be a victim of family violence, or may use family violence, it is predominantly committed by men; it can occur in all sectors of society; it can involve exploitation of power imbalances; its incidence is underreported; and it has a detrimental impact on children;

(b) recognition of the impact of family violence on particular job seekers such as:

Indigenous people;
those from culturally and linguistically diverse backgrounds;
those from lesbian, gay, bisexual, trans and intersex communities;
children and young people;
older persons; and
people with disability

(d) appropriate referral processes; and

(e) the availability of support services.

Question 15–11 In what ways, if any, should the Australian Government include a requirement in requests for tender and contracts for employment services that IEP projects and services, or panel providers, demonstrate an understanding of, and systems and policies to address, the needs of Indigenous job seekers experiencing family violence?

Question 15–12 In what ways, if any, should the JSA, DES, IEP or CDEP systems be reformed to assist Indigenous job seekers who are experiencing family violence?

Question 15–13 In what ways, if any, should the JSA or DES systems be reformed to assist job seekers from culturally and linguistically diverse communities who are experiencing family violence?

Question 15–14 In what ways, if any, should the JSA or DES systems be reformed to assist job seekers with disability who are experiencing family violence?

Question 15–15 In the context of the Australian Government review of new approaches for the delivery of rural and remote employment services, in what ways, if any, could any new approach incorporate measures to protect the safety of job seekers experiencing family violence?

16. Employment—The Fair Work Act 2009 (Cth)

Question 16–1 How do, or how could, Fair Work Australia’s role, functions or processes protect the safety of applicants experiencing family violence?

Question 16–2 In making an application to Fair Work Australia, applicants are required to pay an application fee. Under the Fair Work Regulations 2009 (Cth) an exception applies if an applicant can establish that he or she would suffer ‘serious hardship’ if required to pay the relevant fee. In practice, do people experiencing family violence face difficulty in establishing that they would suffer ‘serious hardship’? If so, how could this be addressed?

Question 16–3 In applying for waiver of an application fee, referred to in Question 16–2, applicants must complete a ‘Waiver of Application Fee’ form. How could the form be amended to ensure issues of family violence affecting the ability to pay are brought to the attention of Fair Work Australia?

Question 16–4 InProposals 14–1, 17–1 and 17–3 the role of the Fair Work Ombudsman is discussed. In what other ways, if any, could the Fair Work Ombudsman’s role, function or processes protect employees experiencing family violence?

Proposal 16–1 Section 65 of the Fair Work Act 2009 (Cth) should be amended to provide that an employee who is experiencing family violence, or who is providing care or support to a member of the employee’s immediate family or household who is experiencing family violence, may request the employer for a change in working arrangements to assist the employee to deal with circumstances arising from the family violence.

This additional ground should:

(a) remove the requirement that an employee be employed for 12 months, or be a long-term casual and have a reasonable expectation of continuing employment on a regular and systemic basis, prior to making a request for flexible working arrangements; and

(b) provide that the employer must give the employee a written response to the request within seven days, stating whether the employer grants or refuses the request.

The next proposals are presented as alternate options: Proposal 16–2 OR Proposals 16–3 and 16–4

OPTION ONE: Proposal 16–2

Proposal 16–2 The Australian Government should amend the National Employment Standards under the Fair Work Act 2009 (Cth) to provide for a new minimum statutory entitlement to 10 days paid family violence leave. An employee should be entitled to access such leave for purposes arising from the employee’s experience of family violence, or to provide care or support to a member of the employee’s immediate family or household who is experiencing family violence.

OPTION TWO: Proposals 16–3 and 16–4

Proposal 16–3 The Australian Government should amend the National Employment Standards under the Fair Work Act 2009 (Cth) to provide for a minimum statutory entitlement to an additional 10 days paid personal/carer’s leave. An employee should be entitled to access the additional leave solely for purposes arising from the employee’s experience of family violence, or to provide care or support to a member of the employee’s immediate family or household who is experiencing family violence.

Proposal 16–4 The Australian Government should amend the National Employment Standards under the Fair Work Act 2009 (Cth) to provide that an employee may access the additional personal/carer’s leave referred to in
Proposal 16–3:

(a) because the employee is not fit for work because of a circumstance arising from the employee’s experience of family violence; or

(b) to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support as a result of their experience of family violence.

17. Employment—The Fair Work Act 2009 (Cth) Continued

Proposal 17–1 The Fair Work Ombudsman should develop a guide to negotiating individual flexibility arrangements to respond to the needs of employees experiencing family violence, in consultation with the Australian Council of Trade Unions and employer organisations.

Proposal 17–2 The Australian Government should encourage the inclusion of family violence clauses in enterprise agreements. Agreements should, at a minimum:

(a) recognise that verification of family violence may be required;

(b) ensure the confidentiality of any personal information disclosed;

(d) set out relevant roles and responsibilities;

(e) provide for flexible working arrangements; and

(f) provide access to paid leave.

Proposal 17–3 The Fair Work Ombudsman should develop a guide to negotiating family violence clauses in enterprise agreements, in conjunction with the Australian Domestic and Family Violence Clearinghouse, the Australian Council of Trade Unions and employer organisations.

Proposal 17–4 In the course of its 2012 review of modern awards, Fair Work Australia should consider the ways in which family violence may be incorporated into awards in keeping with the modern award objectives.

Proposal 17–5 In the course of its first four-yearly review of modern awards, beginning in 2014, Fair Work Australia should consider the inclusion of a model family violence clause.

Proposal 17–6 Fair Work Australia members should be provided with training to ensure that the existence of family violence is adequately considered in deciding whether there are ‘exceptional circumstances’ under s 394(3) of the Fair Work Act 2009 (Cth) that would warrant the granting of a further period within which to make an application for unfair dismissal.

Question 17–1 Section 352 of the Fair Work Act 2009 (Cth) prohibits employers from dismissing an employee because they are temporarily absent from work due to illness or injury. Regulation 3.01 of the Fair Work Regulations 2009 (Cth) prescribes kinds of illness or injury and outlines a range of other requirements. In what ways, if any, could the temporary absence provisions be amended to protect employees experiencing family violence?

18. Occupational Health and Safety Law

Proposal 18–1 Safe Work Australia should include information on family violence as a work health and safety issue in relevant Model Codes of Practice, for example:

(a) ‘How to Manage Work Health and Safety Risks’;

(b) ‘Managing the Work Environment and Facilities’; and

(c) any other code that Safe Work Australia may develop in relation to other topics, such as bullying and harassment or family violence.

Proposal 18–2 Safe Work Australia should develop model safety plans which include measures to minimise the risk posed by family violence in the work context for use by all Australian employers, in consultation with unions, employer organisations, and bodies such as the Australian Domestic and Family Violence Clearinghouse.

Proposal 18–3 Safe Work Australia should develop and provide education and training in relation to family violence as a work health and safety issue in consultation with unions, employer organisations and state and territory OHS regulators.

Proposal 18–4 Safe Work Australia should, in developing its Research and Data Strategy:

(a) identify family violence and work health and safety as a research priority; and

(b) consider ways to extend and improve data coverage, collection and analysis in relation to family violence as a work health and safety issue.

Question 18–1 What reforms, if any, are needed to occupational health and safety law to provide better protection for those experiencing family violence? For example, should family violence be included in the National Work Health and Safety Strategy?

19. Superannuation Law

Question 19–1 The ALRC is not proposing that a trustee should have an express obligation to consider whether an application for superannuation splitting is being made as a result of coercion. Are there any other ways a trustee or another body could consider this issue? If so, what if any steps could they take to limit or ameliorate the effect of that on a victim of family violence?

Proposal 19–1 In Family Violence—A National Legal Response (ALRC Report 114) the Australian Law Reform Commission and NSW Law Reform Commission recommended that the Australian Government should initiate an inquiry into how family violence should be dealt with in respect of property proceedings under the Family Law Act 1975 (Cth). Any such inquiry should include consideration of the treatment of superannuation in proceedings involving family violence.

Question 19–2 What changes, if any, are required to ensure that the Australian Tax Office considers family violence in determining appropriate compliance action in relation to trustees of SMSFs who fail to comply with superannuation or taxation law, where that action may affect a trustee who is:

(a) a victim of family violence; and

(b) not the subject of compliance action?

Question 19–3 What changes, if any, to guidance material produced by the Australian Tax Office may assist in protecting people experiencing family violence who are members or trustees of a SMSF?

Question 19–4 What approaches or mechanisms should be established to provide protection to people experiencing family violence in the context of SMSFs?

Proposal 19–2 Regulation 6.01(5)(a) of the Superannuation Industry (Supervision) Regulations 1994 (Cth) should be amended to require that an applicant, as part of satisfying the ground of ‘severe financial hardship’, has been receiving a Commonwealth income support payment for 26 out of a possible 40 weeks.

Question 19–5 Are there any difficulties for a person experiencing family violence in meeting the requirements under reg 6.01(5)(b) of the Superannuation Industry (Supervision) Regulations 1994 (Cth) as part of satisfying the ground of ‘severe financial hardship’? If so, what changes are necessary to respond to such difficulties?

Question 19–6 Should the Superannuation Industry (Supervision) Regulations 1994 (Cth) be amended to allow recipients of Austudy, Youth Allowance and CDEP Scheme payments to access early release of superannuation on the basis of ‘severe financial hardship’?

Question 19–7 Should reg 6.01(5)(a) of the Superannuation Industry (Supervision) Regulations 1994 (Cth) be amended to provide that applicants must either be in receipt of Commonwealth income support payments or some other forms of payment—for example, workers’ compensation, transport accident or personal income protection payments because of disabilities?

Question 19–8 Should APRA Superannuation Circular No I.C.2, Payment Standards for Regulated Superannuation,be amended to provide guidance for trustees in relation to:

(a) what constitutes a ‘reasonable and immediate family living expense’ in circumstances involving family violence; and

(b) the effect family violence may have on determining whether an applicant is unable to meet reasonable and immediate family living expenses?

Question 19–9 As an alternative to Question 19–8 above, should APRA work with the Australian Institute of Superannuation Trustees, the Association of Superannuation Funds of Australia and other relevant bodies to develop guidance for trustees in relation to early release of superannuation on the basis of ‘severe financial hardship’, including information in relation to:

(a) what constitutes a ‘reasonable and immediate family living expense’ in circumstances involving family violence; and

(b) the effect family violence may have on determining whether an applicant is unable to meet reasonable and immediate family living expenses?

Question 19–10 In practice, how long do superannuation funds take to process applications for early release of superannuation on the basis of ‘severe financial hardship’? What procedural steps may be taken to facilitate the prompt processing of applications in circumstances involving family violence?

Question 19–11 In practice, how long does APRA take to process applications for early release of superannuation on compassionate grounds? What procedural steps may be taken to facilitate the prompt processing of applications in circumstances involving family violence?

Proposal 19–3 APRA should amend the Guidelines for Early Release of Superannuation Benefits on Compassionate Grounds to include information about family violence, including that family violence may affect the test of whether an applicant lacks the financial capacity to meet the relevant expenses without a release of benefits.

Question 19–12 Should reg 6.19A of the Superannuation Industry (Supervision) Regulations 1994 (Cth) be amended to provide that a person may apply for early release of superannuation on compassionate grounds where the release is required to pay for expenses associated with the person’s experience of family violence?

Question 19–13 Should the Superannuation Industry (Supervision) Regulations 1994 (Cth) be amended to provide for a new ground for early release of superannuation for victims of family violence? If so, how should it operate? For example:

(a) which body should be responsible for administering the new ground;

(b) what criteria should apply;

(d) if individual funds administer the new ground, should there be common rules for granting early release on the new ground; and

(e) what appeal mechanisms should be established?

Question 19–14 What amendments, if any, should be made to application forms for early release of superannuation to provide for disclosure of family violence where it is relevant to the application?

Question 19–15 What training is provided to superannuation fund staff and APRA staff who are assessing applications for early release of superannuation? Should family violence and its impact on the circumstances of an applicant be included as a specific component of any training?

Question 19–16 In practice, how do superannuation funds and APRA contact members or those who have made an application for early release of superannuation? Is there, or should there be, some mechanism or process in place in relation to applications involving family violence to deal with safety concerns associated with:

(a) contacting the member or applicant; or

(b) the disclosure of information about the application?

Question 19–17 Should the 90 day period for a superannuation fund to respond to a complaint by a member be reduced to 30 days?

Question 19–18 Should there be central data collection in relation to applications for early release of superannuation in order to identify:

(a) the extent to which funds are being accessed early on the basis of any new family violence ground, including numbers of applications and success rates; and

(b) whether there are multiple claims on the same or different funds?

If so, which body should collect that information, and how?

Question 19–19 Are there any other ways in which superannuation law could be improved to protect those experiencing family violence?

20. Migration Law—Overarching Issues

Question 20–1 From 1 July 2011 the Migration Review Tribunal will lose the power to waive the review application fee in its totality for review applicants who are suffering severe financial hardship. In practice, will those experiencing family violence face difficulties in accessing merits review if they are required to pay a reduced application fee? If so, how could this be addressed?

Proposal 20–1 The Migration Regulations 1994 (Cth) should be amended to provide that the family violence exception applies to all secondary applicants for all onshore permanent visas. The family violence exception should apply:

(a) as a ‘time of application’ and a ‘time of decision’ criterion for visa subclasses where there is a pathway from temporary to permanent residence; and

(b) as a ‘time of decision’ criterion, in all other cases.

Question 20–2 Given that a secondary visa applicant, who has applied for and been refused a protection visa, is barred by s 48A of the Migration Act 1958 (Cth) from making a further protection visa application onshore:

(a) In practice, how is the ministerial discretion under s 48B—to waive the s 48A bar to making a further application for a protection visa onshore—working in relation to those who experience family violence?

(b) Should s 48A of the Migration Act 1958 (Cth) be amended to allow secondary visa applicants who are experiencing family violence, to make a further protection visa application onshore? If so, how?

Question 20–3 Section 351 of the Migration Act 1958 (Cth) allows the Minister for Immigration and Citizenship to substitute a decision for the decision of the Migration Review Tribunal if the Minister thinks that it is in the public interest to do so:

(a) Should s 351 of the Migration Act 1958 (Cth) be amended to allow victims of family violence who hold temporary visas to apply for ministerial intervention in circumstances where a decision to refuse a visa application has not been made by the Migration Review Tribunal?

(b) If temporary visa holders can apply for ministerial intervention under s 351 of the Migration Act 1958 (Cth), what factors should influence whether or not a victim of family violence should be granted permanent residence?

The next proposals are presented as alternate options: Proposal 20–2 OR Proposal 20–3

OPTION ONE: Proposal 20–2

Proposal 20–2 The Migration Regulations 1994 (Cth) should be amended to allow a former or current Prospective Marriage (Subclass 300) visa holder to access the family violence exception when applying for a temporary partner visa in circumstances where he or she has not married the Australian sponsor.

OPTION TWO: Proposal 20–3

Proposal 20–3 Holders of a Prospective Marriage (Subclass 300) visa who are victims of family violence but who have not married their Australian sponsor, should be allowed to apply for:

(a) a temporary visa, in order make arrangements to leave Australia; or

(b) a different class of visa.

Question 20–4 If Prospective Marriage (Subclass 300) visa holders are granted access to the family violence exception, what amendments, if any, are necessary to the Migration Regulations 1994 (Cth) to ensure the integrity of the visa system?

Question 20–5 Should the Prospective Marriage (Subclass 300) visa be abolished, and instead, allow persons who wish to enter Australia to marry an Australian sponsor to do so on a special class of visitor visa, similar to that in place in New Zealand?

Question 20–6 Should the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) be amended to provide that sponsorship is a separate and reviewable criterion for the grant of partner visas?

Proposal 20–4 The Australian Government should ensure consistent and regular education and training in relation to the nature, features and dynamics of family violence, including its impact on victims, for visa decision makers, competent persons and independent experts, in the migration context.

Proposal 20–5 The Australian Government should ensure that information about legal rights, family violence support services, and the family violence exception are provided to visa applicants prior to and upon arrival in Australia. Such information should be provided in a culturally appropriate and sensitive manner.

21. The Family Violence Exception—Evidentiary Requirements

Proposal 21–1 The Department of Immigration and Citizenship’s Procedures Advice Manual 3 should provide that, in considering judicially-determined claims, family violence orders made post-separation can be considered.

Question 21–1 Where an application for a family violence protection order has been made, should the migration decision-making process be suspended until finalisation of the court process?

Proposal 21–2 The requirement in reg 1.23 of the Migration Regulations 1994 (Cth) that the violence or part of the violence must have occurred while the married or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator should be repealed.

Question 21–2 If the requirement in reg 1.23 is not repealed, what other measures should be taken to improve the safety of victims of family violence, where the violence occurs after separation?

The next proposals are presented as alternate options: Proposal 21–3 OR Proposals 21–4 to 21–8

OPTION ONE: Proposal 21–3

Proposal 21–3 The process for non-judicially determined claims of family violence in reg 1.25 the Migration Regulations 1994 (Cth) should be replaced with an independent expert panel.

OPTION TWO: Proposals 21–4 to 21–8

Proposal 21–4 The Migration Regulations 1994 (Cth) should be amended to provide that competent persons should not be required to give an opinion as to who committed the family violence in their statutory declaration evidence.

Proposal 21–5 The Migration Regulations 1994 (Cth) should be amended to provide that visa decision makers can seek further information from competent persons to correct minor errors or omissions in statutory declaration evidence.

Proposal 21–6 The Migration Regulations 1994 (Cth) should be amended to provide that visa decision makers are required to provide reasons for referral to an independent expert.

Proposal 21–7 The Migration Regulations 1994 (Cth) should be amended to require independent experts to give applicants statements of reasons for their decision.

Proposal 21–8 The Migration Regulations 1994 (Cth) should be amended to provide for review of independent expert assessments.

22. Refugee Law

Proposal 22–1 The Minister for Immigration and Citizenship should issue a direction under s 499 of the Migration Act 1958 (Cth) to visa decision makers to have regard to the Department of Immigration and Citizenship’s Procedures Advice Manual 3 Gender Guidelines when making refugee status assessments.

Question 22–1 Under s 417 of the Migration Act 1958 (Cth), the Minister for Immigration and Citizenship may substitute a decision for a decision of the Refugee Review Tribunal, if the Minister considers that it is in the public interest to do so. Does the ministerial intervention power under s 417 of the Migration Act 1958 (Cth) provide sufficient protection for victims of family violence? If not, what improvements should be made?