Family Violence and Commonwealth Laws

As readers will be aware, on 19 August we released a Discussion Paper. Those of you who are referring to the full Discussion Paper as you write your submissions might perhaps have noticed that it’s big. Very big.  It’s really seven DPs in one, given the coverage of the discrete areas under review.

First, a few words about that. The ALRC carries out a lot of research and consultation before we come up with the questions and proposals that we put to our stakeholders. We believe that is important that all of this work is fully documented. These documents are a reference for stakeholders requiring detailed explanation, they ultimately provide an evidence base for our final recommendations for reform, and they also become valuable reference material for other researchers in the field. But yes, all that documentation can become a little unwieldy.

Enter, the Summary Paper.   The practice of producing separate summary versions of Discussion Papers and Final Reports is a relatively new one for the ALRC.  The intention is to help stakeholders access and grasp the key issues quickly, without getting bogged down or bewildered by too much detail.  The Summary Paper aims to provide the essential minimum for easy access to the ALRC’s thinking, particularly for stakeholders who already have considerable understanding of the various issues under review.

The Family Violence- Commonwealth Laws Discussion Paper Summary is probably the shortest summary document we’ve produced to date. After a brief introduction and overview, it provides a short abstract of each chapter, followed by the questions and proposals contained in that chapter. We would like to know if we’ve achieved the right balance with this formula.

As you write your submissions for this Inquiry (due 30 September!), and the experience of using these Discussion Papers is fresh, we’d really welcome any feedback about how you are using these publications, and what you do and don’t find useful.

Please leave your comments below or, if you prefer not to provide feedback publicly, you can email us via the form on the ALRC website: http://www.alrc.gov.au/contact

The Discussion Paper is finally ready!  We do apologise for the delay and thank you for your patience. Commissioner in charge of the Inquiry and ALRC President Professor Rosalind Croucher described the process as rather like ‘unravelling a jumper—or in this case, several jumpers—as the threads of each of the very distinct parts of the Inquiry were explored’. The deadline for submissions has been extended to 30 September 2011.

We have actually produced two documents. The full Discussion Paper provides a detailed account of our research and reasoning to explain how the ALRC arrived at the questions and proposals for reform. It is a very large document (approx 750 pages) which we trust will be of assistance to stakeholders who require more detailed background information, and be a valuable resource down the track. The Discussion Paper is available only online, in html and as PDFs for each of the seven areas.

Because we appreciate the time constraints on stakeholders and the impracticality of asking all respondents to tackle the full Discussion Paper, we have also produced a brief Summary Paper. It gives informed stakeholders easy access to the principles on which our ideas are based and what we are actually suggesting. We anticipate that most stakeholders will simply refer to the Summary Paper when developing submissions. The Summary Discussion Paper is available online. If you are unable to download your free copy of this Summary, the ALRC has a limited number of hard copies available.

Access Discussion Paper, Family Violence and Commonwealth Laws (DP 76) >>

Access Summary Discussion Paper >>

We strongly encourage respondents to use the online submission forms we have developed for this phase of the consultation.

This Inquiry is large in scope and there are many questions and proposals for reform. We have created separate forms for each of the different areas of law (eg, migration law, employment law, family assistance, etc) to help simplify the process. This means that if you are only, for example, interested in the area of employment law, you need only respond to that section of the Discussion Paper, using the relevant form.  Of course, you may respond to as many of the sections as you wish. You are not required to respond to each and every proposal within a form.

• DP 76 Part A – Common Threads (Chapters 3-4)
• DP 76 Part B – Social Security (Chapters 5-8)
• DP 76 Part C – Child Support and Family Assistance (Chapters 9-12)
• DP 76 Part D – Income Management (Chapter 13)
• DP 76 Part E—Employment (Chapters 14-18)
• DP 76 Part F – Superannuation (Chapter 19)
• DP 76 Part G – Migration (Chapters 20-22)

You can also provide your submission via email, mail or fax.

See ALRC’s media release >>

You haven’t heard from us for a while as we’ve had our heads down reading submissions and preparing the Discussion Paper.

This is just a quick heads-up to remind you that the Discussion Paper will be ready soon—in the second week of August. Of course, we will notify you via this e-news as soon as it is available, but would encourage people and organisations intending to make submissions to put aside time over August and September to prepare them. The closing date for submissions will be 21 September 2011—so that we can make our November reporting deadline. We were able to take many late submissions in response to the Issues Papers, and all have been considered for the DP, but we don’t have any more leeway that we can give in response to the DP. We appreciate the burden that writing submissions places on all our stakeholders but please be assured that your work helps us enormously in developing our thinking. You provide the evidence base upon which our law reform recommendations are ultimately founded. So please hang in there till we get to the end on this important work!

Thank you to everyone who made submissions to our four Issues Papers throughout April—and beyond! We received 81 in total. Non-confidential submissions are published on our website and are available to the public. View submissions >>

On 30-31 May, two members of the Inquiry team attended the Indigenous Family Violence Prevention Forum, presented by the Queensland Centre for Domestic and Family Violence Research in Mackay. The conference was informative and well represented by various Indigenous community and service providers. We were able to network with frontline organisations and departments. The overall discussion of family violence issues was frank and revealing. As we also attended the conference last year, it presented an opportunity to provide feedback to the audience on the work of the ALRC, both in the first ALRC Family Violence Inquiry, and the current Inquiry. In addition to the feedback provided at the conference we also published an article in the Indigenous Law Bulletin and released a podcast in December 2010, however the opportunity to speak to members of the community face to face was really important to us.

Throughout June, the ALRC held Advisory Panel Roundtables around the main areas of Commonwealth law under consideration in this Inquiry: Migration; Employment; Superannuation; Social Security; Child Support and Family Assistance; and Income Management.  ALRC inquiries usually establish an expert Advisory Committee, but because of the complex nature of this Inquiry we have opted for specialist panels in the key areas under review. The establishment of panels of experts such as the ones we have put together for this Inquiry is an invaluable aspect of ALRC inquiries—assisting in the identification of key issues, providing quality assurance in the research and consultation effort, and assisting with the development of reform proposals.

The team are all very busy writing at the moment: using your submissions in response to the Issues Papers, comments we received via other channels, and advice received in face-to-face consultations, to produce a Discussion Paper (DP), which will contain a more detailed treatment of the issues and specific proposals for reform.

We plan to release the DP at the end of July, calling for submissions in response to a range of proposals and additional questions. As we have to report by the end of November, you will need to keep to the timetable for submissions.  We can only allow a submission period of approximately 8 weeks. We will also, at that stage, undertake a further round of national consultations.

Family Violence and Commonealth Laws – Child Support and Family Assistance (IP 38) –  is now available, with submissions due 21 April 2011.

This Issues Paper questions how child support and family assistance laws can be improved to better protect the safety of victims of family violence.

The Paper looks at whether a definition of family violence should be inserted into child support and family assistance legislation, and further considers a number of issues in relation to child support, including:

• screening for family violence by the Child Support Agency;
• the requirement to take reasonable maintenance action, and exemptions granted due to family violence;
• collection of child support; and
• protection of personal information.

With respect to family assistance, the following issues, among others, are addressed:

• exemptions from Tax File Number requirements in cases of family violence;
• payment of Family Tax Benefit when a child is in informal care; and
• the Special Child Care Benefit where children are considered at risk of serious abuse.

Please feel free to share your thoughts by commenting on this post. However we also urge stakeholders to make formal submissions via the online submission form.

Today we released the first of four Issues Papers for this Inquiry,  Family Violence and Commonwealth Laws—Employment and Superannuation Law. It deals with the treatment of family violence in Commonwealth employment, occupational health and safety, and superannuation law, and asks questions about how law in these areas might be improved, such as:

• how can job search assistance provided through Job Services Australia be improved for victims of family violence?
• should National Employment Standards, enterprise agreements or awards provide for the granting of family violence leave or other measures to assist victims of family violence?
• should family violence be better recognised as an occupational health and safety problem, where it affects the workplace?
• how can superannuation law provide better protection to victims of family violence who may be coerced into transferring superannuation benefits or want early access to funds?

Please feel free to share your thoughts by commenting on this post. However we also urge stakeholders to make formal submissions via the online submission form.

Submissions for the Employment and Superannuation Issues Paper close on 6 April 2011.

To form one basis for consultation, the ALRC is releasing a series of four Issues Papers covering the treatment of family violence in:

• child support and family assistance law;
• immigration law;
• employment and superannuation law; and
• social security law.

These Issues Papers are intended to encourage informed community participation in the Inquiry by providing some background information and highlighting the issues so far identified by the ALRC as relevant to the Inquiry. The Issues Papers may be downloaded free of charge from the ALRC’s website.

The Issues Papers will be followed by the publication of a Discussion Paper in mid-2011. The Discussion Paper will contain a more detailed treatment of the issues, and will indicate the ALRC’s current thinking in the form of specific proposals for reform. The ALRC will then seek further submissions and will undertake a further round of national consultations in relation to these proposals.

The ‘family violence exceptions’ in the Migration Regulations 1994 (Cth) (the Regulations) are designed to ensure that visa applicants do not have to remain in abusive relationships in order to obtain permanent residence in Australia. The exceptions provide for the grant of permanent residence to victims of family violence—usually in partner visa cases— notwithstanding the breakdown of their married or de facto relationship. It provides an exception to the requirement that a relationship remain ‘genuine and continuing’.

Under the Regulations, an alleged victim is taken to have suffered family violence and the alleged perpetrator taken to have committed the violence if—among other things—evidence is presented in the prescribed manner falling under two broad categories. These are known as judicially and non-judicially determined family violence claims.

Judicially determined family violence claims can be evidenced by: an injunction under the Family Law Act 1975 (Cth); a conviction or finding of guilt against the alleged perpetrator in respect of an offence against the alleged victim; or a protection order under State and Territory law against the alleged perpetrator.

Non-judicially determined claims of family violence were introduced in recognition that migrant communities often lacked the resources to obtain judicially determined evidence of family violence. Non-judicially determined claims can be evidenced by: a joint undertaking recognised by a court that the alleged perpetrator has committed violence against the alleged victim; or a statutory declaration from the victim and from two ‘competent persons’, expressing their opinion that the victim has suffered family violence. A police record of assault may substitute for one statutory declaration from a competent person.

The Regulations define ‘competent person’ to include doctors, nurses, psychologists, social workers, Family Court counsellors and coordinators and managers of women’s refuges. Competent persons must in their statutory declaration: express an opinion that the alleged victim has suffered family violence; name who committed the family violence; and set out their claims to be a competent person; and provide the evidence on which their opinion is based.

A triumph of form over substance?

Concerns have been raised that, attempts to clarify the law in order to prevent unmerited claims, have led to rigid evidentiary requirements described as ‘a triumph of form over substance’. The courts have given strict interpretation to the provisions such that—in some cases—relatively small departures from the regulatory requirements have proved fatal to the claim. For example, non-judicially determined claims have been rejected on the basis that:

• the statutory declaration was signed on a state rather than federal form;
• the statutory declaration was signed on one day and witnessed on another; and
• the declaration did not specify that the competent person was a coordinator of a women’s refuge.

In other instances claims have failed where:

• the declaration stated that the applicant may have, or appears to have suffered family violence;
• the declaration did not present evidence that the conduct caused the alleged victim to reasonably fear for his or her safety;
• the declaration did not adequately set out the basis for the person’s claim to be a competent person;
• the declaration did not state who committed the family violence;

Do victims of family violence face unreasonable difficulties in meeting the evidentiary requirements for making a non-judicially determined claim of family violence? Is it appropriate for competent persons to give evidence about who has committed family violence? Do the provisions strike the requisite balance between protecting the safety of victims of family violence and preventing abuse of the system? What, if any, legislative reforms are necessary?

The Terms of Reference require the ALRC to examine the treatment of family violence in Commonwealth laws, including child support and family assistance law, immigration law, employment law, social security law and superannuation law and privacy provisions—and to consider improvements to protect the safety of those experiencing family violence. A range of issues can be identified in each of the specified areas of Commonwealth law. For example:

Child support

Tax legislation requires parents to take ‘reasonable maintenance action’ to get child support from a non-custodial parent, in order to be eligible for more than the base rate of Family Tax Benefit A. Guidelines provide exemptions from this obligation, including where there is violence or fear of violence; or a harmful or disruptive effect on the payee or payer of child support. How do these exemptions operate in practice and are victims of family violence who are exempted from applying for child support financially disadvantaged?

Immigration

The criteria for a number of visa subclasses contain an exception to the requirement of a continuing spouse or de facto partner relationship between the visa applicant and another person (their sponsoring spouse or partner), if evidence is provided that they or a member of their family unit have experienced family violence by the sponsoring spouse or partner. How does this exception operate in practice and how might the criteria and relevant evidentiary requirements be improved?

Employment

There are moves towards including family violence clauses in enterprise agreements. Such clauses may provide for paid special leave for absences related to domestic violence, flexible working hours, relocation and other measures to benefit victims of family violence. What are the barriers to the broader adoption of such clauses? Should other steps be taken, such as  amending the Fair Work Act to include family violence as a basis on which an employee may request flexible working arrangements?

Social security

The rates of many social security payments and benefits differ depending on whether the recipient is a ‘member of couple’—that is, in a de facto relationship (previously, a ‘marriage-like relationship’). Concerns have been expressed that underlying assumptions in the ‘de facto relationship’ test may disregard domestic violence and its potential impact on the victims’ decisions. Should the criteria for determining whether a person is a ‘member of a couple’ be amended so that family violence can disqualify a relationship from being considered ‘de facto’?

Superannuation

Superannuation funds generally cannot be accessed before the member is the required ‘preservation age’ which is currently ranges from 55 to 60 years depending on date of birth. However, there are specified compassionate grounds for early release of superannuation, including severe financial hardship. Should there be a specific exemption for victims of family violence allowing them early access to their superannuation if they are suffering hardship and do not meet the current criteria?

Privacy

In each of these areas of Commonwealth law, privacy issues relating to family violence may arise. For example, the Child Support Agency discloses personal information about one parent to the other in child support assessment notices. Are exceptions to such disclosure requirements justified in cases of family violence?

At this early stage of the Inquiry, the ALRC is interested in feedback that will assist us to identify aspects of Commonwealth laws that might be improved to better protect the safety of those experiencing family violence. Do you have views or perspectives on any of the issues identified above? What other issues should the ALRC examine in relation to these or other areas of Commonwealth law?