A common definition in other Commonwealth laws

First step to a common interpretative framework

3.37 The Discussion Paper traversed the particular Commonwealth legislative areas under review, identifying where definitions of family violence are, or are not, included in Commonwealth laws, and proposing where such definitions might best be placed.

3.38 The ALRC considers that the same approach should be adopted in relation to Commonwealth laws in relation to this Inquiry, and that significant systemic benefits would flow from the adoption of a common interpretative framework, across different legislative schemes, promoting the foundational policy principles of seamlessness and effectiveness underlying the approach to reform advocated in the Report.

3.39 The ALRC recommends that, in the various areas under review, a common definition should be adopted. As outlined above, a common interpretative framework is based first on a consistent core definition of family violence. In the light of the comments considered by the Senate Committee in relation to the Family Violence Bill, the ALRC recommends that the core definition should provide that family violence means behaviour by a person towards a member of the person’s family that is violent, threatening, coercive or controlling, or is intended to cause the family member to be fearful.[44]

3.40 The ALRC also considers that it is appropriate to include a non-exhaustive list of behaviours that may fall within the core definition. This second component of the definition should set out a range of behaviours that may amount to family violence. Particular kinds of behaviour may present themselves as examples—depending upon the legislative scheme under consideration. The illustrative list of behaviours contained in the second part of the definition was recommended as a non-exhaustive one and that it should be tailored to fit the context. This ensures that definitions are suitable for individual legislative schemes, while maintaining consistency across Commonwealth laws.

3.41 Given that the Australian Government is moving towards implementation of an amended definition of family violence in the Family Law Act, as discussed above, the ALRC recognises that this may form the basis of the definitions across the areas of Commonwealth law under review in this Inquiry. The ALRC considers that consistency is the key goal, but commends consideration of the comments put to the Senate Committee with respect to the final form of the amended definition in the Family Law Act.

Benefits of a common approach

3.42 The ALRC confirms its views expressed in Family Violence—A National Legal Response that systemic benefits would flow from the adoption of a common definition across different legislative schemes. Many stakeholders in this Inquiry have strongly supported a common definition of family violence.[45] For example, DEEWR supported a ‘consistent and comprehensive definition’ of family violence and indicated it would consider amendment of ‘relevant guidelines and material to reflect any changes’.[46] The Australian Association of Social Workers (AASW) (Qld) and the Welfare Rights Centre (WRC) (Qld) supported

the articulation of a clear uniform definition of family violence that encompasses the continuum of violent behaviours that can manifest themselves within domestically violent relationships.[47]

3.43 Stakeholders identified a number of benefits from a consistent approach to the definition of family violence. FaHCSIA commented that it would support actions raised in the National Plan to Reduce Violence Against Women and their Children and the National Framework for Protecting Australia’s Children. It would also assist ‘with gaining a shared understanding across the community of what constitutes family violence, who is affected and who is eligible to seek access to service and support as a consequence’.[48]

3.44 Other benefits of a common approach identified by stakeholders included:

  • fostering a common understanding that could then lead to appropriate training and consistent responses;[49]
  • the alignment of policies;[50]
  • a reduction in the repetition of a person’s story and having to obtain different kinds of evidence;[51] and
  • enhancement of safety.[52]

3.45 The ALRC considers that a common definition should have the following additional benefits:

  • increase certainty for victims that family violence will be recognised and treated consistently across legal and administrative frameworks;
  • improve the ease and effectiveness of decision making and interpretation of laws and policies for agencies, departments, and courts; and
  • facilitate better coordination of responses to family violence, through appropriate information sharing and the improvement of pathways between agencies.

3.46 FaHSCIA submitted that ‘without more definitive policy and practice guidance’, there is the potential ‘for inconsistent assessment of legal entitlements’. However, backed up by such guidance—and ongoing ‘monitoring and maintenance’—it would ‘ensure consistency into the future’.[53] The ALRC agrees that legislative definitions should be complemented by replication and guidance in policy guidelines—and makes recommendations to this effect in Chapters 5, 11 and 14. This is also discussed further below.

Resistance to the proposed definition

3.47 Some stakeholders regarded the ALRC’s proposed definition as too broad. A number who had made submissions to the Commissions’ earlier inquiry repeated their opposition to the proposed definition both to the Senate Committee inquiry into the Family Violence Bill and to this Inquiry.[54] The Non-Custodial Parents Party (Equal Parenting) opposed the inclusion of the definition in the child support context, arguing that it amounted to an ‘unreasonable broadening of the definition of family violence’, and that ‘unfounded allegations of family violence’ should not be ‘an acceptance criterion to establish a relationship between child support and family violence’.[55]

3.48 Family Voice Australia drew attention to Professor Chisholm’s comments to the Senate Committee consideration of the Family Violence Bill.[56]

3.49 The Australian Federation of Employers and Industries argued that the definition was ‘unacceptably broad’ and for the purposes of the Fair Work Act 2009 (Cth) it would be ‘an impractical definition on which to base an entitlement for leave or any other condition of employment’.[57] Other employer groups suggested that family violence issues are better dealt with through workplace policies and education, rather than changes to the Fair Work Act.[58]

Illustrative examples of the types of family violence

3.50 The ALRC considers it may be useful for the definition to list examples of the types, or higher order examples, of family violence that are specified in the second part of the definition. DHS has commented that the

meaning and limits of the terms of the definition of family violence must be made very clear, to ensure that they are useful and do not lead to further confusion or conflict. It may be useful to provide examples of some of the forms of family and domestic violence within the definition so that these can be recognised.[59]

3.51 In Family Violence—A National Legal Response, the Commissions considered that the higher level examples of family violence contained in the definition of family violence should ideally be illustrated by non-exhaustive lists of examples—in particular, in relation to emotional/psychological or economic abuse. Including such illustrative examples in the Commonwealth legislative schemes under review should help to educate service officers, lawyers, judicial officers, and those engaging with the various schemes. It may also assist in achieving more consistent responses to family violence from departments and the legal system. The family violence legislation of Victoria and South Australia may be instructive in this regard.[60]

3.52 Alternatively, relevant policy guides—in particular, the Guide to Social Security, the Child Support Guide, and the Family Assistance Guide—may illustrate the categories of family violence specified in the legislation with lists of examples. As discussed in Chapters 5, 11 and 14, the ALRC recommends that legislative definitions of family violence should be replicated and reflected in relevant policy guides. Further, whatever list of behaviours is adopted in particular legislation may be amplified in an illustrative way in the relevant policy guide. Policy guides therefore provide appropriate platforms for complementary material regarding the legislative definition.

3.53 The ALRC considers that the illustrative categories of family violence in the definition should be tailored to each legal framework to reflect the presentations of family violence, and the particular risks victims may face, in that context. Some stakeholders suggested including additional, amended, or expanded, examples of behaviour that may constitute family violence.

3.54 The AASW (Qld) and WRC (Qld), for example, suggested that other examples could be given in the illustrative list, including socially isolating a person denying cultural and/or religious autonomy, as well as threats to commit any of the above or threats to commission others to do so.[61] National Legal Aid also suggested that threats to carry out the behaviours listed should be included as well as a threat ‘to commit suicide or self harm’.[62] A specific example was given concerning animals:

The wording of the proposed section does not include threats to an animal, but rather requires that the animal have been injured or killed for the definition of family violence to be met. In our family violence casework and advice experience ‘threats to harm’ to pets are common and have been effectively used to exercise control over victims.[63]

3.55 With respect to Indigenous peoples, the Aboriginal and Torres Strait Islander Women’s Legal Services NQ Inc submitted that the definition ‘fails to acknowledge the extent to which a person’s cultural, spiritual and family life form part of the person’s sense of self-worth’. It suggested that emotional and psychological abuse are ‘too general and generally an inaccurate description for specific types of abuse such as’:

  • Cultural abuse;
  • Deliberately isolating a person from their family, their community or social life, their cultural life or their religious or spiritual beliefs;
  • Demeaning a person with reference to their culture, or spiritual beliefs.[64]

3.56 In the migration context, the ‘threat of removal’ from Australia was considered by many stakeholders as a form of family violence used to coerce and control victims of family violence, many of whom lack an understanding of their legal rights, or who may be totally dependent on the sponsor.[65] Many stakeholders supported amendments to the Procedures Advice Manual 3 to provide illustrative examples. For example, the ANU Migration Law Program submitted that:

It is our experience when dealing with victims of family violence that the threat to withdraw sponsorship is one of the most common forms of devices used to ensure compliance with the perpetrator’s wishes … As it stands the current definition does not capture coercion to this level. The failure to accept the repercussions of threats at this level have meant that the victim is often required to argue their case with decisions makers on the grounds of personal danger should they return home instead of the climate of threats they lived under during the relationship.[66]

3.57 Other examples of matters suggested to be considered were:

  • expanding the paragraph referring to causing a child to be exposed to family violence—paragraph (i) in the Commissions’ definition—to refer specifically to the ‘short-term effects’ of the listed behaviours;[67]
  • as an example of child abuse, the ‘denial of access by the child to one of his/her parents’;[68]
  • ‘legal abuse through the [Federal Magistrates Court], and the threat of future financial devastation via legal abuse’;[69]
  • that any definition of family violence ‘needs to reflect the differing experiences of victims taking into account their specific circumstances of age, abilities, race, culture, lifestyles and gender’;[70]
  • socially isolating a person, denying cultural and/or religious autonomy;[71]
  • the ‘increasingly common incidence of violence by teenage children (usually sons) against mothers’;[72]
  • threats of violence—‘victims of violence report that perpetrators can maintain control with threats of even a “look” if past acts have shown what a perpetrator is capable of’.[73]

3.58 DHS commented on the inclusion of ‘economic abuse’ in the list of behaviours that may amount to family violence. It stated that, in particular areas such as child support, this term ‘raises especially sensitive issues … because the Child Support program facilitates and enforces transfers of money from one to the other’.[74]

3.59 The Multicultural Disability Advocacy Association stated 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.[75]

3.60 The National Welfare Rights Network (NWRN) considered that the examples of behaviour should be informed by direct consultation with people who have experienced family violence who identify as being from those groups.[76]

Nature, features and dynamics of family violence

3.61 The ALRC also recommends in Chapters 5, 11 and 14 that relevant policy guides should contain a statement regarding the nature, features and dynamics of family violence—in particular, the Guide to Social Security, the Child Support Guide andthe Family Assistance Guide.

3.62 Including a statement of the nature, features and dynamics has a number of benefits. In brief, such a statement serves an important educative function for staff, and provides a contextual basis for training and the identification of family violence concerns (through screening or other measures). However, the ALRC does not consider that such a provision is necessary in the Commonwealth legislation under review, as prevention of family violence is not the primary purpose of such legislation.

3.63 The ALRC considers that the formulation of the nature, features and dynamics recommended for state and territory family violence legislation in the Family Violence—A National Legal Response provides an instructive model for relevant Australian Government departments. However, the departments should modify the formulation to best reflect the exigencies of the framework in which they operate. Some stakeholders have suggested modification or additions to the formulation.[77] For example, WEAVE submitted that the formulation should also address ‘the impact of family violence on children and young people’.[78] This may be particularly relevant in the social security and child support contexts—for example, to complement legislative provisions and policy regarding youth allowance and the child support eligibility of informal carers of children who have experienced family violence.[79]

3.64 The Lone Father’s Association objected to the component of the formulation stating that ‘family violence is predominantly committed by men’, arguing that this ‘amounts to illegal gender profiling of males’.[80] While the ALRC considers it important that definitions of family violence, both in legislation and policy guides, are gender-neutral,[81] it is appropriate for policy guides to state that, while anyone may be a victim of family violence, or use family violence, it is predominantly committed by men.

3.65 Time for Action reported that ‘overwhelmingly sexual assault and domestic and family violence is perpetrated by men against women’, although it acknowledged that men can also be victims of family violence.[82] In Family Violence—A National Legal Response, the Commissions considered that, ‘where state and territory governments accept statistics indicating that family violence is predominantly used by men against women, this should be reflected in the principles of family violence legislation’. In the ALRC’s view, this principle is also applicable to the Australian Government and the relevant policy guides published by its departments.

[44] This is the formulation proposed by Chisholm during the Senate Inquiry into the Family Violence Bill, discussed above.

[45] Submissions to the Issues Papers are cited more fully in the Discussion Paper: Australian Law Reform Commission, Family Violence and Commonwealth Laws, Discussion Paper 76 (2011). Particular submissions are referred to below. Some submissions gave general ‘I agree’ responses to the questions in relation to the common interpretative framework, eg: NSW Women’s Refuge Movement, Submission CFV 120; ADFVC, Submission CFV 102; WEAVE, Submission CFV 84.

[46] DEEWR, Submission CFV 130.

[47] AASW (Qld) and WRC Inc (Qld), Submission CFV 136.

[48] FaHCSIA, Submission CFV 162. However, FaHCSIA also listed a number of concerns about the adoption of a consistent definition across the relevant frameworks, for example that ‘the proposed definition would need to be used in its entirety by all Commonwealth legislation’.

[49] National Legal Aid, Submission CFV 164; FaHCSIA, Submission CFV 162; DHS, Submission
CFV 155; AASW (Qld) and WRC Inc (Qld), Submission CFV 137; AASW (Qld) and WRC Inc (Qld), Submission CFV 136; DEEWR, Submission CFV 130; Federation of Ethnic Communities’ Councils of Australia, Submission CFV 126; DIAC, Submission CFV 121; White Ribbon, Submission CFV 112; Aboriginal & Torres Strait Islander Women’s Legal Service North Queensland, Submission CFV 99.

[50] Commonwealth Ombudsman, Submission CFV 54.

[51] DHS, Submission CFV 155; Commonwealth Ombudsman, Submission CFV 54.

[52] Gippsland Community Legal Service, Submission CFV 114.

[53] FaHCSIA, Submission CFV 162.

[54] For example, Lone Fathers Association Australia, Submission CFV 109; FamilyVoice Australia, Submission CFV 86; Non-Custodial Parents Party (Equal Parenting), Submission CFV 50.

[55] Non-Custodial Parents Party (Equal Parenting), Submission CFV 50. See also Lone Fathers Association Australia, Submission CFV 109.

[56] FamilyVoice Australia, Submission CFV 86. As noted above, the ALRC agrees that Chisholm’s suggested reformulation improves upon the definition recommended by the Commissions and addresses its unintended over-inclusiveness.

[57] AFEI, Submission CFV 158.

[58] Ai Group, Submission CFV 141; ACCI, Submission CFV 128.

[59] DHS, Submission CFV 155.

[60]Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 9; Family Violence Protection Act 2008 (Vic) ss 5–7.

[61] AASW (Qld) and WRC Inc (Qld), Submission CFV 137.

[62] National Legal Aid, Submission CFV 164.

[63] Ibid.

[64] Aboriginal & Torres Strait Islander Women’s Legal Service North Queensland, Submission CFV 99.

[65] ANU College of Law, Submission CFV 79; AASW (Qld), Submission CFV 38; ADFVC, Submission CFV 26.

[66] ANU Migration Law Program, Submission CFV 79.

[67] Women’s Information and Referral Exchange, Submission CFV 93.

[68] Lone Fathers Association Australia, Submission CFV 109.

[69] Confidential, Submission CFV 83.

[70] AASW (Qld) and WRC Inc (Qld), Submission CFV 140.

[71] AASW (Qld) and WRC Inc (Qld), Submission CFV 136.

[72] CPSU, Submission CFV 147.

[73] Confidential, Submission CFV 165.

[74] DHS, Submission CFV 155.

[75] Multicultural Disability Advocacy Association, Submission CFV 60.

[76] National Welfare Rights Network, Submission CFV 150.

[77] See, eg, Women’s Health Victoria, Submission CFV 133; WEAVE, Submission CFV 14.

[78] WEAVE, Submission CFV 85.

[79] See Chs 6 and 12.

[80] Lone Fathers Association Australia, Submission CFV 109.

[81] This is consistent with the aim of this Report—to improve the safety of all victims of violence, whether male or female.

[82] National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence Against Women and their Children, 2009–2021 (2009), 29.