The issues paper is the last of four regarding the Family Violence and Commonwealth laws. It precedes a discussion paper for release mid-2011. The ALRC inquiry encompasses child support and family assistance law, immigration law, employment law, social security law and superannuation law and privacy provisions in relation to those experiencing family violence. The expectation is that the Commission will identify improvements to relevant legal frameworks to protect the safety of those experiencing family violence, in particular addressing legislative arrangements across the Commonwealth that inhibit effective support of people experiencing family violence. The ALRC will also consider whether the extent of sharing of information within the Commonwealth and with state/territory agencies is appropriate.
The current issues paper deals with the Social Security Act 1991 (Cth), Social Security (Administration) Act 1999 (Cth) and Social Security (International Agreements) Act 1999 (Cth). It notes that -
Lack of independent financial resources for victims of family violence is a major cause of homelessness.3 Access to independent financial resources, such as those provided under social security law, can provide economic security and independence to facilitate the safety of those experiencing family violence—for example, by enabling victims of family violence to leave a violent relationship, become financially independent or seek alternate accommodation.The paper notes recurrent concern regarding the inadequacy of social security payments -
criteria and by exemptions from participation, activity or administrative requirements. Without exemptions, such requirements may be too onerous for a victim of family violence and, as a result, they may have their income support cut off, possibly compromising their safety and ability to leave a violent situation.
On the other hand, in certain situations, social security payments may also facilitate economic abuse and duress by family members.
The ALRC has identified a number of issues relevant to the safety of victims of family violence in Commonwealth social security law and practice. Family violence has the potential to affect eligibility for, and rates of payment of, a range of social security benefits. In particular, family violence may have implications in relation to:• how relationships are defined—for example, whether a person is considered to be a member of a couple, or independent of family support;
•compliance with various activity, participation and administrative requirements attached to certain social security payments;
•how social security payments are administered; and
•whether social security and income management measures can be improved to provide better protection of the interests of victims who have left, or wish to leave, violent relationships.
While the amounts received by victims of family violence may be relevant to protecting their safety, this aspect of social security—and its budgetary and financial implications—is not a focus of this Inquiry. Reforms to address these issues would be systemic, affecting calculations for different social security payments and, as a result, have an impact on a much broader range of Centrelink customers than just victims of family violence.It asks 45 questions -
1 Should the Social Security Act 1991 (Cth) and/or the Social Security (Administration) Act 1999 (Cth) be amended to insert a definition of ‘family violence’ consistent with that recommended by the ALRC/NSWLRC in Family Violence — A National Legal Response (ALRC Report 114)?
2 In what circumstances should Centrelink staff be required to inquire about the existence of family violence when dealing with Centrelink customers?
3 Should Centrelink application forms (including electronic forms), correspondence and telephone prompts directly seek information about family violence? For example, should a question about family violence be included on all forms?
4 Where family violence is disclosed or identified, do Centrelink staff notify victims effectively about eligibility criteria for payments and exemptions, including any corresponding exemptions and requirements for child support?
5 In what circumstances, if any, should information about family violence be shared between Centrelink and other government agencies, such as the Child Support Agency?
6 How does Centrelink collect information about family violence when it is identified?
7 Are Centrelink staff and social workers able to access information about persons who have identified themselves as a victim of family violence as to whether they have obtained a protection order or similar? Should Centrelink staff and social workers be able to access the national register recommended in Family Violence — A National Legal Response, Report 114 (2010)?
8 In practice, is the possibility of family violence considered by Centrelink staff before deciding to interview a partner or a parent?
9 When contact with a partner or a parent is not appropriate due to the possibility of family violence, on what information should family violence be assessed?
10 Are Centrelink customers aware that Centrelink may decide not to contact partners or parents if the customer is a victim of family violence?
11 In practice, do decision makers adequately consider the existence of family violence when making determinations about eligibility criteria or exemptions for certain social security payments?
12 Should the criteria in s 4 Social Security Act 1991 (Cth) for determining whether a person is a ‘member of a couple’ be amended clearly to take into account the existence and effect of family violence?
13 Should further guidance be provided in the Guide to Social Security Law about the implications of family violence under the criteria in s 4 Social Security Act 1991 (Cth)?
14 In practice, is family violence adequately considered in determining separation under one roof? If not, how should family violence be taken into consideration?
15 When contact with a partner is not appropriate due to family violence, how should family violence be assessed?
16 In practice, is family violence adequately taken into consideration in the exercise of the discretion under s 24 of the Social Security Act not to treat a person as a member of a couple?
17 Should the ‘special reason’ discretion in s 24 of the Social Security Act be amended expressly to require the existence and effects of family violence to be taken into account? Would this amendment be required if s 4 is amended in this way?
18 What, if any, further guidance should be provided in the Guide to Social Security Law in relation to exercising the discretion under s 24 to take into account the existence and effect of family violence?
19 In what ways might access to Youth Allowance, Disability Support Pension and Pensioner Education Supplement be improved for victims who have left their home because of family violence? For example, does the criterion for a person to be considered ‘independent’ adequately take into account the existence of family violence? Should family violence be expressly referred to in this context?
20 In practice, is the possibility of family violence considered by Centrelink staff before deciding to contact a parent?
21 When contact with a young person’s parent is not appropriate, due to the possibility of family violence, how should claims about family violence be assessed?
22 In what ways, if any, should the Guide to Social Security Law be amended in relation to the ‘continuous support’ criteria to improve the safety of victims of family violence? For example, should specific provisions be made for victims of family violence who need to supply asset and income details from a parent?
23 Should the requirement of parental consent for a person under 18 years of age to be paid directly be waived for victims who have left home because of family violence?
24 Do the provisions regarding the requirement for original proof of identity documents and tax file numbers create barriers for victims of family violence? Should further measures be put in place to ensure that victims of family violence who have had to leave their homes because of family violence are not required to return to the home or have contact with an abusive family member?
25 What reforms, if any, should be considered in relation to the qualifying residence periods or newly arrived residents’ waiting period, for victims of family violence? For example: (a) is the 10 year waiting period for the Age Pension and the Disability Support Pension unreasonable or impractical for victims of family violence; and (b) should the Social Security Act 1991 (Cth) be amended so that there is an exemption from waiting periods for newly arrived residents for victims of family violence?
26 What measures, if any, might be taken to address any difficulties faced by victims of family violence when they must comply with activity and participation tests, Employment Pathway Plans and/or administrative requirements? For example, are the current exemption periods reasonable for victims of family violence?
27 In practice, are Centrelink customers aware of the exemptions — including ‘reasonable excuse’ — available in circumstances of family violence? If so, are victims of family violence likely to use the exemptions?
28 Should the Social Security Act 1991 (Cth) be amended expressly to provide for waiver of debt in situations where a person is subject to duress, undue influence or economic abuse? What processes should be in place to determine whether such circumstances exist?
29 Should social security law or practice be amended in relation to nominee arrangements to minimise the potential for financial abuse by people holding nominee authority? For example, should the Social Security Act 1991 (Cth) be amended to recognise other legal authorities of a person nominated by the social security recipient, such as under powers of attorney or enduring guardianship?
30 improved for victims of family violence? For example, should Crisis Payment be ‘wrapped up’ with Special Benefit?
31 Should Crisis Payment be available to those who are otherwise ineligible for a social security pension or benefit but due to extreme circumstances of family violence are placed in financial hardship?
32 Do claim periods and eligibility criteria for Crisis Payments adequately reflect the breadth and nature of family violence?
33 What evidence is, or should, be necessary to determine whether family violence amounts to an extreme circumstance for the purpose of Crisis Payment?
34 Do the provisions for Rent Assistance in the Social Security Act 1991 (Cth) adequately address the situation where a person using family violence defaults on mortgage repayments on the house in which the victim is living? Should the definition of ‘rent’ in s 13(2) of that Act expressly include mortgage repayments where family violence is an issue?
35 In practice, are Centrelink customers aware of, and do Centrelink customers make use of, the option to have their payments made weekly? In practice, if requested, are victims of family violence provided with weekly payments?
36 Should victims of family violence who are receiving weekly payments be eligible to receive Crisis Payment?
37 Should family violence be an example of ‘exceptional and unforeseen circumstances’ in the Guide to Social Security Law when considering whether to make an urgent payment? Are the current payment arrangements — such as weekly payments — available to victims of family violence sufficient?
38 Should family violence be included as an indicator of vulnerability for the purposes of administering the ‘vulnerable welfare payment recipients’ income management provisions?
39 If so, what definition of family violence should apply? What additional decision-making principles or guidelines may be desirable—in particular, taking into account that a person may be a victim or person using family violence (or both)?
40 Should the income management regime include provision for people experiencing family violence to be exempted from income management in specified circumstances, where to do so would assist them to take steps to prevent or reduce violence?
41 What changes could be made to law or practice relating to the administration of income management accounts to assist welfare recipients who are victims of family violence? For example, are there alternatives to stored value cards that might provide additional flexibility or portability, such as food stamps or a streamlined access to cash in periods of crisis?
42 Should travel or other crisis needs, where a person needs to escape family violence, be included in the definition of ‘priority needs’ for the purposes of the income management regime?
43 Should voluntary income management of people experiencing family violence be adopted more broadly and, if so, how should this done? For example, what amendments to the compulsory income management provisions would be required?
44 Is there any evidence that income management has improved the safety of people experiencing family violence?
45 Are there any other ways in which Commonwealth social security law and practice could be improved to better protect the safety of people experiencing family violence?