The Australian Law Reform Commission has released its 541 page report [
PDF] on
Family Violence and Commonwealth Laws — Improving Legal Frameworks (ALRC report 117).
The report calls for a common interpretative framework, with inclusion in Commonwealth laws of the same core definition of family violence -
systemic benefits would flow from the adoption of a common interpretative framework across the specified legislative areas, promoting seamlessness and effectiveness in proceedings involving family violence for both victims and decision makers. Importantly, it should also enhance consistency in the treatment of family violence across the legislative frameworks, reinforced by appropriate and regular training.
The common interpretative framework recommended in Family Violence — A National Legal Response is based on a core definition of family violence, describing the context in which behaviour takes place, as well as the types of conduct — both physical and non-physical — that may fall within the definition of family violence. The context, set out in the first part of the definition, is violent, threatening or other behaviour that coerces or controls a family member or causes that family member to be fearful. The second part of the definition provides a non-exhaustive list of the types of behaviour that may constitute family violence.
The report discusses disclosure and issues management, noting tools and methods that may be used to identify family violence-related safety concerns. It recommends that
Department of Human Services (DHS) staff providing customer services should facilitate the disclosure of family violence-related safety concerns by providing information about how family violence may be relevant to a person’s social security, child support and family assistance case, at the point of registration and at subsequent intervention points.
The identification of family violence-related safety concerns should result in an appropriate issues management response, which may include referral to a Centrelink social worker or other expert service providers. To assist with this, and to reduce the need for a customer to re-disclose, the ... DHS should consider developing and implementing a ‘safety concern’ flag to be placed on a customer’s file where family violence-related safety concerns are identified. This flag should be available to relevant agencies subject to informed consent of the customer and with appropriate privacy safeguards.
In dealing with Social Security the report comments that the Australian social security system is based on four key principles -
1. it is based on need—measured by reference to the income and assets of the applicant;
2. it is fair and reasonable to expect unemployed people receiving income support to do their best to find work, undertake activities that will improve their skills and increase their employment prospects and, in some circumstances, contribute something to their community in return for receiving social security payments and entitlements;
3. relationship status determines eligibility and rates of payment — a person who is a member of a couple receives a lower social security payment than one who is single; and
4. residence is a requirement to preserve social security benefits for those settled in the Australian community.
To ensure fairness in administration of the social security system and to provide a level of self-agency, greater transparency and consistency is required in relation to the information a person can rely on to support a claim of family violence. The ALRC therefore recommends that a broad range of types of information should be available and establishment of defined ‘intervention points’ at which Centrelink should promote disclosure of family violence. Centrelink procedures should be included in social security legislation or the
Guide to Social Security Law, rather than Centrelink’s e-reference, which is not publicly available.
In discussing the impact of family violence on relationships the ALRC notes that relationships are inherently difficult to define, but recognises that the effect of family violence may not always be considered appropriately in social security decisions regarding relationships. Recommendations in Chapter 6 aim to ensure that the impacts of family violence are expressly considered in social security decisions through amendments to the
Social Security Act 1991 (Cth) and the
Guide to Social Security Law. It notes that
Family violence is relevant to proof of identity and residence requirements attached to certain social security payments. The requirement to provide original proof of identity documents and tax file numbers can create a barrier for persons experiencing family violence to obtain access to social security payments and entitlements. Similarly, residence requirements may mean that certain visa holders or newly arrived residents are unable to access independent financial assistance through the social security system and therefore may not have adequate financial support to enable them to leave a violent relationship.
Chapter 8 concerns determining capacity to work, with improved administration and content of the 'capacity to work' tools and processes to protect the safety of victims of family violence. The chapter also
examines ways in which Job Services Australia (JSA)—the national employment services system—Disability Employment Services (DES) and the Indigenous Employment Program (IEP) systems respond to the needs of job seekers experiencing family violence. The ALRC recommends that the Department of Education, Employment &Workplace Relations (DEEWR), as contractor of JSA, DES and IEP providers, should ensure that providers appropriately and adequately consider the existence of family violence when tailoring service responses.
The report makes recommendations to ensure that a person’s experience of family violence is adequately considered in negotiation and revision of requirements for activity-tested social security payments and the granting of exemptions from such requirements. Chapter 9 considers barriers to accessing Crisis Payment and urgent payments, with recommendations to provide better protection for victims of family violence, including removing the requirement for Crisis Payment that either the victim or the person using family violence must have left the ‘home’. It recommends amending the
Social Security Act 1991 (Cth) to ensure that family violence can be taken into consideration in decisions to waive the repayment of a social security debt—for example, where the debt was incurred due to economic abuse or duress by a family member.
In dealing with the contentious issue of Income Management the report notes that -
‘Income management’ is an arrangement under the Social Security (Administration) Act 1999 (Cth) by which a proportion of a person’s social security and family payments is quarantined to be spent only on particular goods and services, such as food, housing, clothing, education and health care. The aim, as indicated by the Department of Families, Housing, Community Services & Indigenous Affairs, is to ensure that ‘income support payments are spent in the best interests of children and families and helps ease immediate financial stress’.
The ALRC identifies three broad issues that arise in relation to the ways in which income management affects victims of family violence:
the appropriateness of compulsory income management to victims of family violence;
applying voluntary income management to victims of family violence; and
practical issues that victims of family violence face in accessing necessary funds.
The report consequently recommends introduction of a flexible and voluntary form of income management—an ‘opt-in and opt-out’ model—to better protect the safety of people experiencing family violence. It examines practical issues arising in relation to accessing income managed funds.
The ALRC considers that to reflect the underlying principles of accessibility and self-agency articulated in Chapter 2 of the Report, at the very minimum it is necessary to ensure that victims of family violence are able to access and control their income management account—whether through a BasicsCard, voucher or other form of payment or credit. In particular, the limited definition of ‘priority needs’ is contrary to these principles and poses particular difficulties for victims of family violence. The ALRC therefore recommends that the Australian Government should amend the definition of ‘priority needs’ in s 123TH of the Social Security (Administration) Act 1999 to include travel or other crisis needs for people experiencing family violence. In light of difficulties with the income management account system and BasicsCards, the ALRC also suggests that the Government should review the existence and operation of these in the course of any introduction of an opt-in and opt-out income management model.
In discussing Child Support and Family Assistance the report notes "the major point of intersection between the child support and family assistance legislative schemes: the ‘reasonable maintenance action’ requirement" (to receive more than the minimum rate of Family Tax Benefit (FTB) Part A, eligible parents must be in receipt of child support). It suggests that Family violence exemptions are a key protective strategy for victims of family violence in both child support and family assistance contexts.
Exemptions enable victims to opt out of obtaining child support payments—where this would place them at risk—without a consequent reduction to their FTB Part A payments. Due to this significant protective role, the ALRC recommends that exemptions should be set out in family assistance legislation.
Further information about exemptions should be contained in the Family Assistance Guide.
The current framework for family assistance comprises a range of payments and is primarily governed by two statutes:
A New Tax System (Family Assistance) Act 1999 (Cth) and
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth). Chapter 14 discusses the family assistance framework and the ways that it addresses family violence, focusing on the two primary family assistance payments—Family Tax Benefit (FTB) and Child Care Benefit (CCB). Chapter 14 recommends reforms specifically targeted at family assistance law and policy, particularly in relation to CCB—to improve access to increased CCB in cases of family violence (including child abuse), by lowering the eligibility threshold where children are at risk of abuse.
In relation to Employment Law the ALRC calls for a "national and phased approach" -
Family violence is not simply a private or individual issue, but rather a systemic one arising from wider social, economic and cultural factors. Accordingly, effective measures to address family violence need to operate in both the private and public spheres. This is particularly so in the context of employment, as the line between private and public—or family life and work—is increasingly unclear. As one stakeholder ... commented during a consultation, ‘workplaces are becoming our new communities and therefore they must be a place for change’.
Chapter 15 examines the intersections between family violence and Commonwealth employment law and, together with Chapters 16–18, recommends reforms to employment-related legislative, regulatory and administrative frameworks to improve the safety of people experiencing family violence. The ALRC suggests a phased implementation of the reforms outlined in Chapters 15–18 as follows:
Phase One — coordinated whole-of-government national education and awareness campaign; research and data collection; and implementation of government-focused recommendations.
Phase Two — continued negotiation of family violence clauses in enterprise agreements and development of associated guidance material.
Phase Three — consideration of family violence in the course of modern award reviews.
Phase Four—consideration of family violence in the course of the Post-Implementation Review of the Fair Work Act 2009 (Cth).
Phase Five—review of the National Employment Standards (NES) with a view to making family violence-related amendments to the right to request flexible working arrangements and the inclusion of an entitlement to additional paid family violence leave.
In discussing the Fair Work Act the ALRC characterises that statute as "the key piece of Commonwealth legislation regulating employment and workplace relations", noting that it "establishes a safety net comprising: the NES, modern awards and national minimum wage orders; and a compliance and enforcement regime. It also establishes an institutional framework for the administration of the system comprising Fair Work Australia (FWA) and the Fair Work Ombudsman (FWO)". The report accordingly considers
potential reform of the Act, its institutions, and agreements and instruments made under the Act. The ALRC suggests ways in which these institutions and their processes may function to protect the safety of those experiencing family violence. In addition, Chapter 16 examines:
family violence clauses in enterprise agreements—the ALRC concludes the Australian Government should support the inclusion of family violence clauses and recommends that the FWO should develop a guide to negotiating such clauses;
individual flexibility arrangements in enterprise agreements—the ALRC considers the appropriateness of individual flexibility arrangements (IFAs) in circumstances where an employee is experiencing family violence and recommends that the FWO should include information on negotiating an IFA in such circumstances in existing guidance material;
modern awards—the ALRC considers ways in which modern awards might incorporate family violence-related terms and suggests this should be considered in the course of the modern award reviews to be conducted by FWA in 2012 and 2014; and
the general protections provisions under the Fair Work Act—the ALRC recommends that prior to the Australian Government considering inclusion of a family violence-related ground under the general protections provisions, the Australian Human Rights Commission (AHRC) should examine the possible inclusion of a family violence-related protected attribute under Commonwealth anti-discrimination law.
Chapter 17 considers possible amendments to the NES. Minimum statutory entitlements, such as those provided for under the NES, are important to ensuring fairness and consistency in access to the entitlements and, ideally, to consistent decision making and employer responses. As a result, as part of Phase Five of the ALRC’s suggested strategy for phased implementation of reforms contained in [the] Report, the ALRC recommends that the Australian Government should consider amending the NES. In particular, the ALRC recommends that there should be consideration of: whether family violence should be included as a circumstance in which an employee should have a right to request flexible working arrangements; and whether additional paid family violence-related leave should be included as a minimum statutory entitlement under the NES.
The report notes that occupational health and safety (OHS) laws are "being harmonised across Australia, with a Model Act, Model Regulations and Model Codes of Practice forming the basis of the harmonised OHS regime from 1 January 2012". Chapter 18 examines ways in which the Commonwealth OHS system protects employees experiencing family violence and, where it does not do so, how that might be addressed. The chapter examines:
legislative duties of care; the nature and role of regulatory guidance; the importance of further consideration of family violence as a possible work health and safety issue, including research and data collection; as well as increased awareness, education and training around family violence and its impact as a possible work health and safety issue.
The central premise underlying Chapter 18 is that, where family violence is a possible OHS issue, employees should be given the highest level of protection reasonably practicable, and employers should introduce measures to address family violence and create and sustain safe work environments. The chapter 18 contains two main approaches to the issue of family violence as a possible work health and safety issue. First, under the Commonwealth OHS system, legislative and regulatory duties appear to be sufficiently broad to capture some circumstances in which family violence may affect an employee in the workplace. In these instances, in terms of employer obligations, the risk posed by family violence is analogous to the risk posed by other forms of workplace violence. As a result, lack of knowledge, rather than legislative inadequacies, represent the greatest challenge in such instances and so improving awareness and understanding of family violence as a possible OHS issue is the focus of reforms.
The ALRC makes a range of recommendations focused on: increasing awareness of family violence and its impact as a possible work health and safety issue; the incorporation of systems and policies into normal business practice to develop the capacity of employers and employees to effectively manage family violence as an OHS risk; and data collection mechanisms to establish an evidence base upon which to plan future policy directions in this area.
Secondly, in instances in which it is more difficult to establish that family violence would engage an employer’s duty of care or be covered by existing OHS law, for example where it is more analogous to psychosocial hazards, the ALRC recommends that additional research be undertaken in this area. In particular, the ALRC recommends that Safe Work Australia should identify family violence as a research priority, examine the effect of the harmonised OHS regime on duties and obligations owed in relation to family violence as a possible OHS risk and consider ways to extent and improve data coverage, collection and analysis in this area.
The ALRC notes that superannuation, as a form of long-term saving for retirement, "serves an important role and, for many Australians, is one of the most significant forms of wealth", with successive governments having introduced measures to maintain and enhance superannuation savings, largely through compulsory superannuation membership and contribution and preferential tax treatment. Chapter 19 examines ways in which the Australian superannuation system does, or could, respond to protect those people experiencing family violence. In doing so, the ALRC makes a number of recommendations, but also acknowledges the specific role that superannuation plays as a long-term form of savings and recognises the policy tension between the need to preserve superannuation benefits until retirement and the need, in limited circumstances, to allow early access to superannuation funds.
The first part of Chapter 19 deals with circumstances in which a victim of family violence may have been coerced into taking action in respect of their superannuation and considers spousal contributions and self-managed superannuation funds (SMSFs). The ALRC concludes that the treatment of superannuation should be considered in the context of a wider inquiry into how family violence should be dealt with in respect of property proceedings under the Family Law Act 1975 (Cth). The ALRC also makes a number of suggestions with respect to compliance action taken in relation to SMSFs and recommends changes to guidance material with respect to establishing, managing and winding up a SMSF.
The second part of the chapter examines circumstances in which a victim of family violence may wish to seek early access to superannuation benefits, for example, for the purposes of leaving a violent relationship. In considering early release on the basis of severe financial hardship, the ALRC recommends amendments to the eligibility requirements for making an application and to guidance material for decision makers in granting early release. The ALRC also considers early release of superannuation on compassionate grounds and makes recommendations in relation to guidance material and training for decision makers.
The report also considers migration, commenting that -
The policy challenge in the area of migration is to ensure accessibility to the family violence provisions for genuine victims of family violence while preserving the integrity of the visa system, given that attaining permanent residency in Australia is highly sought after.
Partner visas form part of Australia’s family migration stream, allowing non-citizens to enter and remain in Australia on the basis of their spouse or de facto relationship (both opposite and same-sex) with an Australian citizen or permanent resident. All applicants for a partner visa must be sponsored by an Australian citizen or permanent resident. The Migration Regulations 1994 (Cth) include an exception in the case of family violence, which provides for the grant of permanent residence notwithstanding the breakdown of the spouse or de facto relationship on which their migration status depends. In Chapter 20 the ALRC makes recommendations to improve the accessibility of the family violence exception for victims — in particular, to expand the exception to cover secondary applicants for onshore permanent visas.
A non-citizen who wishes to enter Australia for the purpose of marrying an Australian sponsor can apply for a Prospective Marriage visa (Subclass 300), that allows for entry into Australia for a nine-month period, within which the marriage must take place. After the marriage, an application can be made for permanent residence on the basis of the married relationship. The ALRC recommends that holders of a Prospective Marriage (Subclass 300) visa who have experienced family violence but who have not married their Australian sponsor should also have access to the family violence exception.
The ALRC also recommends targeted education and training for visa decision makers, competent persons and independent experts, as well as better information dissemination for prospective visa applicants and visa holders in relation to legal rights, and family violence support services, prior to and upon arrival in Australia.
The report wraps up with a discussion of evidence, centred on the evidence required to support a claim under the family violence exception. It notes the clear policy tension between the principles of accessibility and system integrity.
If evidentiary requirements are too strict and rigid, it may prevent access to the family violence exception for genuine victims. On the other hand, if evidentiary requirements are not sufficiently robust, there is scope for fraudulent claims or other abuse of the family violence exception for migration outcomes. This was an area identified by stakeholders as being in need of substantial reform.
The ALRC recommends a new model for dealing with non-judicially determined claims of family violence. The key recommendation is for the Migration Regulations to be amended to provide that any evidence—in addition or as an alternative to statutory declaration from ‘competent persons’—can validly support a non-judicially determined claim of family violence. In addition, the ALRC recommends that the prescriptive requirements governing statutory declaration forms from competent persons in reg 1.26 should be repealed, allowing applicants to bring a wide range of evidence in support of their family violence claim. Where the visa decision maker is not satisfied that an applicant has suffered family violence, referral can be made to an independent expert within the Department of Human Services (Centrelink).
Such a system will increase accessibility and flexibility to victims of family violence while maintaining the need for robust scrutiny of evidence. In particular, integrity measures are reinforced through building on moves towards specialisation within the Department of Immigration and Citizenship (DIAC) and retaining the mechanism for referral to an independent expert.
The area of judicially-determined claims of family violence has proven less problematic in practice. Here, the ALRC recommends the repeal of the requirement contained in reg 1.23 of the Migration Regulations that the violence, or part of the violence, must have occurred while the relationship was in existence.
Partners of temporary visa holders
A number of temporary or provisional visas provide a pathway to permanent residency—that is, to be eligible for a permanent visa, a person must have previously held a temporary or provisional visa. For secondary visa holders of temporary visas, the ALRC recommends—in Chapter 20—that a new temporary visa be created to allow victims of family violence to remain in Australia for a period of time to access services and make arrangements to return to their country of origin or to apply for another visa.
The associated discussion of refugee law notes that Australia is a signatory to the UN Convention Relating to the Status of Refugees (the Refugees Convention), the key international instrument that regulates the obligations of states to protect refugees fleeing from persecution. Chapter 22 considers the position of asylum seekers who seek protection in Australia as refugees on the basis of having experienced family violence.
While family violence claims can fall under the definition of a refugee as contained in the Refugees Convention, this remains a complex area of the law marked by inconsistent decision making.
The ALRC recommends that the Minister for Immigration & Citizenship should issue a direction under s 499 of the Migration Act 1958 (Cth) in relation to family violence in refugee assessment determinations. Such a direction should refer to guidance material on family violence contained in DIAC’s Gender Guidelines. The Gender Guidelines should be the subject of ongoing, comprehensive and periodic review.
The ALRC recommends that DIAC amend its instruction, Ministerial Powers—Minister’s Guidelines — s 48A cases and requests for intervention under s 48B, in the Procedures Advice Manual 3 to refer to secondary visa applicants who are the victims of family violence.
These recommendations are intended to improve consistency in decision making, and to ensure that procedures allow for, and support victims in, making family violence claims under the Refugees Convention.
