4.1
Not all family, domestic and sexual violence (FDSV) is physical. Abuse can take forms that are complex, some that do not necessarily involve any direct physical assault, and some that lead to, or are accompanied by, physical violence.
4.2
This chapter discusses the broad issue of coercive control as a pattern of behaviour where perpetrators seek to control and manipulate the lives of victim-survivors, considering the impact of coercive control and the indications that it is a predictor of physical violence. Approaches to the criminalisation of coercive control are examined—especially in Tasmania, England and Wales, and Scotland—and views about the introduction of new offences of coercive control and other responses to the problem are considered.
4.3
The chapter also looks at some of the ways in which coercive control can be exercised—technologically-facilitated abuse, financial abuse, and other forms of complex and non-physical violence—and discusses responses to such kinds of abuse and the need for them to be approached in an inter-sectional and culturally-sensitive fashion.
Coercive control
4.4
Throughout the inquiry, the Committee has heard evidence about the insidious form of violence known as coercive control—a pattern of controlling and manipulative behaviour designed to intimidate, isolate, and control a person.
4.5
Coercive control is central to FDSV. It is commonly described by victim-survivors as the worst form of abuse they experience, and can have more immediate and ongoing impact than physical forms of violence. Coercive control is also a predictor of severe physical violence and homicide.
4.6
This section considers evidence to the inquiry in relation to coercive control, and in particular the suggestion to establish a specific criminal offence of coercive control, as has occurred in some jurisdictions. The section also considers other suggestions to address coercive control, including risk identification, education, and training.
What is coercive control?
4.7
The concept of coercive control was developed by Professor Evan Stark, a sociologist and forensic social worker, who defined it as a ‘pattern of domination that includes tactics to isolate, degrade, exploit and control’ a person, ‘as well as to frighten them or hurt them physically’. Professor Stark describes coercive control as a ‘liberty crime’, and it has also been described as ‘intimate terrorism’.
4.8
Submitters to the inquiry characterised coercive control in various terms, but a common theme in evidence was that coercive control is not incident based, but instead involves a pattern of behaviour.
4.9
The Australian Women Against Violence Alliance explained that coercive control is ‘an umbrella term that refers to an ongoing pattern of controlling and coercive behaviours that are not exclusively physical but can pervade an individual’s daily life with a devastating impact’.
4.10
Women’s Safety NSW described coercive control as:
… the use by one person of controlling and manipulative behaviours such as isolation, emotional manipulation, surveillance, psychological abuse and financial restriction against another person over a period of time for the purpose of establishing and maintaining control. In relationships characterised by coercive control, abusers use tactics of fear and intimidation to exert power over their victim, undermining their independence and self-worth.
4.11
Similarly, the Youth Affairs Council of South Australia (YACSA) submitted:
Coercive control describes a tactical pattern of behaviours that are designed by the perpetrator to control, intimidate, create dependency, and render the victim powerless. The perpetrator will use a range of tactics to leverage the emotional investment the victim has in the relationship to introduce rules and regulations that only apply to the victim, as well as penalties for non-compliance.
4.12
The Committee heard that coercive control can manifest in many different ways. For example, Domestic Violence Victoria and the Domestic Violence Resource Centre Victoria submitted that coercive control involves ‘many tactics of violence used by a perpetrator that are patterned, repeated and integrated into everyday life’.
4.13
The Monash Gender and Family Violence Prevention Centre submitted that research indicates that coercive control is a ‘significant dynamic’ of family violence and that ‘it manifests in a wide variety of ways including financial, psychological and technology-facilitated abusive practices’.
4.14
Further to this, the Committee also heard that reproductive coercion—behaviour that interferes with the autonomy of a person to make decisions about their reproductive health—could be recognised as a form of coercive control.
4.15
YACSA explained that in relationships characterised by coercive control, the perpetrator ‘may control all facets of a woman’s life and may isolate her from family, friends, and support networks (either physically or online) and may exclude her from financial control’.
4.16
YACSA went on to list some specific examples of coercive and controlling behaviours used by perpetrators:
… intimidation, put-downs, threats of self-harm, threats to destroy property, threats to use a weapon, gaslighting, stalking and physical violence to ensure compliance.
4.17
Similarly, the New South Wales Department of Communities and Justice provided some specific examples of coercive and controlling behaviours:
deprivation of liberty and autonomy;
isolating an individual from friends, family and wider society;
withholding or controlling access to resources, including money;
psychological control and manipulation;
threats and creation of a climate of fear, including threats towards children; and
controlling or withholding access to health care, education or employment opportunities.
4.18
However, a discussion paper on coercive control prepared by the New South Wales Government also highlighted that coercive control may be difficult to define and identify due to the contextual nature of the relevant behaviours:
The triggers of fear and intimidation that enable control may be so frequent and subtle they are not evident from the outside of the relationship.
Additionally, the demarcation between coercive and controlling behaviours on the [one] hand and voluntary choices in a relationship on the other hand may be difficult to determine. For example, one indicator of coercive control may be that one individual controls the finances of the household. In some relationships, this could be indicative of a pattern of oppression or exploitation, whereas in others it could indicate a consensual position between the individuals.
4.19
Representatives of the Northern Territory Government explained how there are some differences but many similarities in how coercive control presents in remote communities compared with other parts of Australia, and across different cultural groups:
… being denied access to visit family or to leave the house, not being able to shower, having your clothes burnt or being prevented from going to work. They are often very common factors in the nature of the domestic and family violence experienced by women in remote communities.
4.20
They noted that people experiencing coercive control can be controlled not just by the perpetrator, but also by family members:
In remote communities, where communities are small and people are very well interconnected through cultural and family ties, that is a significant issue for women.
4.21
In the discussion about coercive control, the Committee was reminded that coercive control should not be considered as being separate from other forms of violence. On the contrary, Women’s Safety NSW described coercive control as a ‘foundational element’ of family violence.
4.22
At a public hearing, Ms Jacquie Kilburn, Manager of the National Training Centre at the Women's Aid Federation of England, discussed the relationship between coercive control and physical violence:
… physical abuse is part of the coercion. There may have been a lot of psychological abuse going on and this huge amount of surveillance, which is part of coercive control, and the physical abuse often happens when that survivor steps outside of those rules and norms that have been put in place in that relationship. When they step out, those physical punishments happen.
4.23
Similarly, Dr Marsha Scott, Chief Executive Officer of Scottish Women’s Aid, explained:
… I think it's really important not to think of coercive control as this totally separate phenomenon that happens and that physical assault happens in a different relationship. They are all embedded together.
4.24
The central role of coercive control in family violence was clearly outlined in the final report of the Victorian Royal Commission into Family Violence:
Family violence differs from other forms of violence: it is generally underpinned by a pattern of coercion, control and domination by one person over another. In the case of intimate partners, the coercion may begin immediately after a relationship begins; in others it creeps up, sometimes masked by flattery and charm. Family violence can involve emotional, psychological or financial abuse as well as physical abuse.
The impact of coercive control
4.25
The Committee heard a range of evidence about the harms inflicted by coercive control.
4.26
YACSA explained that coercive control ‘eventually erodes the victim’s confidence, self-esteem, and independence’.
4.27
Similarly, Domestic Violence Victoria and the Domestic Violence Resource Centre Victoria submitted that coercive control ‘has a cumulative effect on the life, safety, wellbeing and freedom of victims’.
4.28
The New South Wales Government discussion paper explained that the primary outcome of coercive control is ‘a condition of entrapment that can be hostage-like in the harms it inflicts on dignity, liberty, autonomy and personhood, as well as to physical and psychological integrity’.
4.29
A common theme in evidence about coercive control was that its immediate and ongoing impact on victim-survivors could be even more severe than the impact of physical violence.
4.30
For example, Women’s Legal Service Victoria submitted:
Coercive control is a defining feature of family violence, and it is the experience of coercive and controlling behaviour that victims commonly describe as the worst type of abuse they experience.
4.31
Similarly, Women’s Safety NSW suggested that while family violence was often perceived as incident based, involving acts of physical violence, coercive control can be ‘just as detrimental, if not more so, to victim-survivors’.
4.32
Hayley Foster, Chief Executive Officer of Women’s Safety NSW, explained:
The most harmful forms of abuse, when we talked with some survivors, in terms of the immediate impact and the ongoing impact, is really the coercive control element.
4.33
Embolden SA, the state-wide peak body for FDSV services in South Australia, submitted that while coercive control can be difficult to recognise, even for victim-survivors themselves, ‘the negative impacts can be severe and long lasting, even after escaping the abuse’.
Coercive control as a predictor of physical violence
4.34
The Committee also heard that coercive control was a predictor of severe physical violence and homicide.
4.35
Associate Professor Kate Fitz-Gibbon, Director of the Monash Gender and Family Violence Prevention Centre, stressed that research indicates that coercive control is a precursor to intimate partner homicide.
4.36
Similarly, Women’s Safety NSW submitted that coercive control is a ‘major predictor’ of severe physical violence and homicide.
4.37
In a policy paper on coercive control, Women’s Legal Service Victoria stated that coercive control is a ‘known predictor of escalating physical violence, including domestic homicide’. It quoted the Victorian Royal Commission into Family Violence, which found:
Ignoring patterns of controlling behaviour and focusing only on physical violence trivialises the abuse victims endure and traps them in violence. It can also have lethal consequences.
4.38
The Royal Commission into Family Violence cited the findings of a UK study, which indicated that the extent of a father’s control over the family, rather than the frequency of physical violence, was an indicator that the father was at high risk of killing his children.
4.39
As evidence of the link between coercive control and physical violence, some submitters and witnesses referred to the findings contained in a 2020 report of the New South Wales Domestic Violence Death Review Team, which reviewed 112 intimate partner domestic violence homicides that occurred in NSW between 10 March 2008 and 30 June 2016. The report found:
In 111 of the 112 cases in this dataset (99%), the relationship between the domestic violence victim and the domestic violence abuser was characterised by the abuser’s use of coercive and controlling behaviours towards the victim. In each of these cases the domestic violence abuser (all male) perpetrated various forms of abuse against the victim, including psychological abuse and emotional abuse.
4.40
The report also noted that a number of homicides were not preceded by an evident history of physical abuse, but were instead preceded by histories of other forms of coercive and controlling behaviour.
4.41
YACSA also cited US research that found that 60 to 80 per cent of women who sought help for FDSV had experienced coercive control and that ‘the level of control in these relationships was a significant predictor of severe and fatal violence’.
4.42
Mens Outreach Service Aboriginal Corporation, an organisation that provides support services to men in the Kimberley region of Western Australia, submitted that its experience was that ‘patterns of behaviour involving coercive control are often red flags for escalating behaviour that leads to physical violence’.
4.43
However, despite evidence of the harm of coercive and controlling behaviour, and its link with severe physical violence, the Committee heard that more was required to prevent and address coercive control in Australia. The Monash Gender and Family Violence Prevention Centre submitted that ‘Australia has yet to grapple in a coordinated and meaningful way with the pervasiveness and severity of coercive control in the lives of abused Australian women’.
4.44
The remainder of this section considers suggestions for measures to address coercive control.
Criminalisation of coercive control
4.45
Throughout the inquiry, much of the discussion on measures to address coercive control centred on the proposal for the introduction of a specific criminal offence of coercive and controlling behaviour.
4.46
The Committee heard that there are differences in how state and territory family violence legislation captures ‘coercion’ or ‘coercive behaviour’ in the definition of what constitutes family violence.
4.47
However, Tasmania is the only jurisdiction with a specific criminal offence aimed at non-physical family violence such as economic abuse and emotional abuse or intimidation.
4.48
The Committee received some evidence on the extent to which coercive control is captured by other criminal law offences, such as assault and stalking.
4.49
Women’s Legal Service Tasmania submitted that criminal law offences in Australia ‘such as assault, damage to property, and stalking do not cover the scope of behaviours that would be captured by a coercion and control offence’. It also noted that, to the extent that the crime of assault includes non-physical injury in the form of mental or psychological harm, ‘satisfying the requisite degree of mental harm suffered is generally a high threshold’.
4.50
Women’s Legal Service Tasmania and Women’s Safety NSW also explained that in some cases the existing criminal law is incident based and does not recognise that a ‘course of conduct’ or a series of acts over a period of time, taken together, may constitute an offence.
4.51
The Committee further notes that existing offences for stalking and intimidation in criminal law are not specific to intimate partners and their family members.
4.52
The following section reviews a selection of existing coercive control offences in Australia and overseas. Further evidence on the introduction of a specific criminal offence of coercive control is then considered in detail.
4.53
Other suggestions to address coercive control, including risk identification, education, and training, are discussed later in this chapter.
Existing coercive control offences
4.54
Reflecting the weight of the evidence received, this section discusses coercive control offences in Tasmania, England and Wales, and Scotland.
4.55
However, the Committee notes that in Ireland coercive or controlling behaviour in a current or former intimate relationship is captured under section 39 of the Domestic Violence Act 2018 (Ireland), which closely resembles the English and Welsh model.
4.56
The Committee also notes that, at the time of writing, many state and territory jurisdictions in Australia are actively considering new measures to address coercive control, including criminalisation:
in New South Wales a Joint Select Committee on Coercive Control was established in October 2020 to inquire into and report on coercive control in domestic relationships;
in the Northern Territory the government is considering options for criminalising coercive control as part of its review of the Northern Territory Domestic and Family Violence Act 2007;
in South Australia, a private member’s bill to criminalise coercive control is presently before parliament;
the Queensland Government announced in February 2021 that it would establish an independent taskforce to examine the issue of coercive control and recommend how best to ‘legislate against coercive control as a form of domestic and family violence’; and
the ACT Government announced in February 2021 its ‘in-principle support’ for criminalising coercive control, subject to consulting stakeholders as to whether there was a gap in its current legislation.
4.57
In Western Australia, a package of family violence reforms which took effect in October 2020 included a new criminal offence of ‘persistent family violence’. This aimed to recognise patterns of abuse by criminalising three or more acts of family violence against one victim-survivor within a ten-year period.
Tasmania
4.58
The Family Violence Act 2004 (Tasmania) includes two offences relevant to coercive control: economic abuse and emotional abuse or intimidation.
4.59
Section 8 of the Act creates an offence of a course of conduct made up of one or more of the following behaviours:
coercing a spouse or partner to relinquish control over assets or income;
disposing of property owned either by a spouse or partner, jointly with a spouse or partner, or by an affected child without their consent;
preventing a spouse or partner from participating in decisions over household expenditure or from accessing joint financial assets for the purposes of meeting normal household expenses; and
withholding, or threatening to withhold, the financial support reasonably necessary for the maintenance of a spouse or partner or an affected child.
4.60
The offence requires that the course of conduct is pursued with intent to unreasonably control or intimidate a spouse or partner or cause mental harm, apprehension, or fear.
4.61
Section 9 of the Act creates an offence of a course of conduct which a person knows, or ought to know, is likely to have the effect of unreasonably controlling or intimidating, or causing mental harm, apprehension or fear in a spouse or partner. The Act gives an example of the offence as a course of conduct limiting the freedom of movement of a person's spouse or partner by means of threats or intimidation.
4.62
The maximum penalty for both offences is a fine not exceeding 40 penalty units or a term of imprisonment of two years.
4.63
Women’s Legal Service Tasmania provided statistics on the use of the economic and emotional abuse provisions, suggesting they had been ‘relatively underused’:
No charges were laid in the 3 years following the introduction of the offences. By the end of 2019, a combined total of 198 charges had been laid, with the significant majority (186) of these being for emotional abuse. By way of comparison, in a single year (2015 – 2016) there were 3,174 incidents of family violence that resulted in charges (generally in the form of breach of police family violence orders) being laid.
4.64
It suggested two contributing factors to the slow uptake of the offences:
that the offences as originally enacted did not contain a statutory limitation period for initiating proceedings, which led to a default six-month statutory limitation period applying (in 2015 this period was increased to 12 months from the day on which the most recent act constituting part of the ‘course of conduct’ occurred); and
a lack of community awareness about the existence and scope of the provisions, and a widespread community perception that family violence is primarily limited to physical assault.
4.65
It also submitted that there was no training for police on what constituted emotional or economic abuse when the offences were first introduced, and that this resulted in missed opportunities for identifying offending at the earliest stages. It also noted possible reluctance within the legal profession to fully embrace the offences, associated with the move away from an incident-based offence framework.
4.66
Women’s Legal Services Tasmania argued that the ‘critical lesson’ of the Tasmanian experience is that ‘legislative change alone … is insufficient without appropriate implementation support’. This broader point was supported by Women’s Safety NSW, which submitted that the introduction of the offences was not accompanied by systemic reforms.
England and Wales
4.67
Section 76 of the Serious Crime Act 2015 (UK) creates an offence of ‘controlling or coercive behaviour in an intimate or family relationship’. To fall within the scope of the offence, the behaviour must:
take place repeatedly or continuously; and
have a ‘serious effect’ on the victim-survivor—that is, it must cause the person to fear, on more than one occasion, that violence will be used against them, or it must cause them serious alarm or distress which has a substantial adverse effect on their day-to-day activities.
4.68
Additionally, the perpetrator must know or ought to know that the behaviour will have a serious effect on the victim-survivor. However, the offence does not require a specific intention to coerce or control.
4.69
In evidence to the inquiry, two features of the England and Wales offence were highlighted.
4.70
First, the offence requires a ‘serious effect’ on the victim-survivor to be proven. Women’s Safety NSW explained that this sets a subjective standard of proof when assessing harm, ‘in that it requires a subjective assessment of the impact of the offender’s behaviour on the victim’:
This legislation requires the court to consider whether an individual victim felt fearful or was alarmed and distressed to the extent that their daily activities were disrupted, in order to establish that an offence has occurred.
4.71
Second, the offence is not limited to abuse in intimate relationships, but extends to include people who were ‘personally connected’ at the time of the behaviour. Women’s Safety NSW explained that this includes members of the same family, such as:
… partners and ex-partners, relatives, parties who are both parents of the same child or who share parental responsibility of the same child, and parties who are engaged or have agreed to enter into a civil partnership.
4.72
The maximum penalty for the offence is 12 months imprisonment on summary conviction or five years imprisonment on indictment.
4.73
Noting that the offence came into effect in December 2015, the following table based on data from the UK Office of National Statistics sets out the number of coercive control offences reported to police.
Table 4.1: Number of coercive control offence investigations recorded by England and Wales police (year ending March)
Source: UK Office of National Statistics
4.74
While not directly comparable to the data in Table 4.1 (due to the use of different time periods and other methodological differences), data on the number of convictions for cases where coercive control was the principal offence is set out in the following table:
Table 4.2: Number of convictions under Section 76 of the Serious Crime Act 2015 (UK) where coercive control was the principal offence
|
|
|
|
|
|
|
Proceedings
|
155
|
468
|
516
|
584
|
|
Convictions
|
59
|
235
|
308
|
305
|
Source: UK Office of National Statistics
4.75
Domestic Violence NSW provided examples of convicted cases in England and Wales, which involve offenders who had:
threatened to expose private photographs of their partner or ex-partner;
confiscated or destroyed their partner’s mobile phone;
prohibited their partner from seeking or continuing employment; and
conducted regular inspections of their partner’s home or body for evidence of infidelity.
4.76
In discussing the operation of the offence to date, Women’s Safety NSW described the take-up of the offence as ‘promising’. However, it also noted concerns raised regarding the varied responses from different police forces, and about the ability of police to identify and provide evidence of coercive control, which ‘significantly affected the number of reports that eventuated into a charge’.
4.77
Women’s Legal Service Tasmania submitted that early investigations into the operationalisation of the offence had ‘echoed the Tasmanian experience’, highlighting issues with police and practitioner understanding of coercive control and with providing evidence of the offence.
4.78
The Monash Gender and Family Violence Prevention Centre explained there had been little empirical investigation and evaluation of policing responses to the offence. However, it noted the findings of a study of one police force, which included that:
victim-survivors rarely contacted the police specifically to report coercive control, and coercive control often only became apparent as a result of other offences (such as assault or criminal damage) being reported;
coercive control cases were given a lower priority grading by call handlers, and were less likely to lead to arrest or be solved in comparison to other forms of abuse;
first and other responders found it difficult to identify patterns of behaviour commensurate with coercive control; and
a significant number of potential coercive control cases resulted in no further action because of difficulties in securing appropriate evidence.
4.79
The Monash Gender and Family Violence Prevention Centre also noted a finding that the range of behaviours encapsulated by the offence was ambiguous and that this impeded its implementation.
4.80
At a public hearing in December, the Committee had the opportunity to discuss the introduction and operation of the offence with Ms Jacquie Kilburn from the Women's Aid Federation of England.
4.81
Ms Kilburn highlighted the importance of the offence focusing on a ‘pattern of incidents’:
Up to that point, the police in particular were working in a very incident led way. They were going out to a domestic, they were responding to that incident and they were not even always connecting the links and looking at the proper history of that couple in order to get the full picture of what was happening in that relationship.
4.82
She also highlighted the importance of the offence focusing on the effects on the victim-survivor:
You can see bruises, you can see people's behaviour, but you can't actually see coercive control. That was why the legislation concentrated very much on the effects of what was happening in that relationship. You take the abusive behaviour, and you have to concentrate on the effects on that person and on that family.
4.83
However, Ms Kilburn noted that these aspects of the offence made training important, particularly for police. She explained that the Women's Aid Federation of England worked with the College of Policing in England to deliver training, but this had not yet occurred across all of the police forces. Ms Kilburn went on to discuss the challenge involved in training police about coercive control:
When you're delivering that training, you're changing police behaviour, you're changing hearts and minds, and you're trying to change people's understanding of what they've been taught … But, not only that, you've got to start from scratch, because they've haven't learnt about coercive control. Learning about coercive control means that you have to teach them that this is insidious. It's an insidious crime. It's something that they haven't experienced before and it's something they're not used to asking about.
4.84
Ms Kilburn noted that evaluations of the training based on victim-survivors’ experiences had indicated a shift in police practices:
… the focus definitely shifted from risk led processes to looking at what that relationship is really about, and evidencing the coercion so they can be prosecuted.
4.85
Ms Kilburn suggested that one of the shortcomings of the implementation of the offence was the lack of a ‘systematic approach’ involving not only police, but also prosecutors, other professionals, and members of the public:
If I were to start again, I would actually train the police and the prosecutors together, because you're bringing them together by doing that and you're getting a common understanding. I'd go further with that common understanding and say that should be attributed to all professionals, and the public as well, who could ever be part of that evidence collection. … All the professionals come into contact with victims of domestic abuse—health professionals, social care professionals—and they need to understand the nature of coercive control. They need to understand that it's fluid and dynamic. They need to understand that it instils fear in that person and they need to understand that it's a form of control that entraps them in a relationship and it's very difficult to get out of that relationship.
4.86
Ms Kilburn suggested that training for specialist services and other professions should be mandated where possible.
Scotland
4.87
The Domestic Abuse (Scotland) Act 2018 provides a discrete offence of domestic abuse, including engaging in a ‘course of behaviour which is abusive’ of a partner or ex-partner. Abusive behaviour is defined under the Act as behaviour that is:
violent, threatening or intimidating, or
has as its purpose, or would be considered by a reasonable person to be likely to have, one or more of the effects of:
making the victim-survivor dependent on or subordinate to the offender;
isolating the victim-survivor from their friends, relatives or other sources of support;
controlling, regulating or monitoring the victim-survivor’s day to day activities;
depriving or restricting the victim-survivor’s freedom of action; and
frightening, humiliating, degrading or punishing the victim-survivor.
4.88
The maximum penalty for the offence is 12 months imprisonment on summary conviction or 14 years imprisonment on indictment.
4.89
Two key differences between the Scotland offence and the England and Wales offence were highlighted in evidence to the inquiry.
4.90
First, unlike the England and Wales offence, the Scotland offence does not require evidence of the effect on the victim-survivor. Women’s Safety NSW explained that the legislation instead imposes an objective standard of proof when assessing harm:
Using a ‘reasonable person’ test to establish whether the defendant’s behaviour was harmful to the victim, shifts the standard of proof away from a subjective assessment of an individual victim’s response to abuse, and instead considers what the reasonable, objective person would consider to be inherently harmful behaviour. Significantly, there is no requirement that the acts of the defendant actually inflicted harm on the victim.
4.91
However, Women’s Safety NSW also noted that the legislation adopts a more subjective approach in considering the intent of the offender, requiring them to have deliberately caused harm, or been criminally reckless as to their behaviour’s impact on the victim-survivor in order to be convicted.
4.92
Second, unlike the more expansive England and Wales offence, the Scotland offence is limited to abuse of a partner or ex-partner.
4.93
According to Scotland’s Prosecution Service, in 2019-20, 1,065 charges of engaging in a course of abusive behaviour were reported, accounting for 3.5 per cent of all domestic abuse charges reported. Court proceedings were commenced in 96 per cent of these charges and 96 per cent of the charges reported were in cases where the accused was male.
4.94
The New South Wales Government discussion paper on coercive control noted measures put in place to support the commencement of the legislation in 2019:
… funding was provided by the Scottish government to deliver enhanced training to 14,000 police officers and staff … Funding was also provided to Scottish Women’s Aid for dedicated training for frontline staff to prepare service providers ahead of commencement. The commencement of the legislation was also supported by a public awareness campaign to increase understanding of the scope of domestic abuse and encourage victims to come forward.
4.95
Women’s Safety NSW suggested that training provided to police officers and others contributed to the relatively high uptake of the offence.
4.96
The Committee was able to discuss the development and introduction of the offence with Dr Marsha Scott from Scottish Women's Aid.
4.97
Dr Scott emphasised that the legislation was developed ’carefully over time’ in consultation with women’s organisations and with significant input from both adult and children survivors.
4.98
Dr Scott explained that there was ‘widespread training’ in the year between the passage of the legislation and its commencement, involving sheriffs, judges, police, victim-survivor services, and social workers. While she noted the importance of this training, she also stressed it was essential that it was part of a larger implementation strategy over five to ten years:
Training alone is a bit of a waste unless you have accountability built into the system. In other words: you can train police, but if their supervisors aren't holding them accountable for their change and good practice, if we don't have data that measures that, if our parliamentarians don't ask for report-backs on the consequences of legislation, then we wind up with really good legislation sitting on the shelf and not changing people's lives.
4.99
Dr Scott explained that a concern before implementation was that the introduction of the offence would lead to victim-survivors being misidentified as perpetrators and arrested, and that preventing this from occurring was a focus of preparation work with police. She also noted that police and the prosecution service had developed effective protocols for gathering evidence, which reduced the need for victim-survivors to repeatedly provide the same evidence.
4.100
Dr Scott stressed that a ‘critical’ feature of the offence was that it was not necessary to prove harm against the victim-survivor:
… you don't have to, essentially, bring a witness into court and then demonstrate how they've been traumatised, which is traumatising in itself. Also it's problematic because courts' sheriffs often have very strange ideas: that people aren't upset enough, so they haven't been harmed, or they're too upset—they're hysterical—so they obviously can't be giving good evidence. It was always a lose-lose situation for women.
4.101
She also noted that the offence expanded the range of evidence that could be used by prosecutors to obtain a conviction of domestic abuse:
… the evidence of coercive control is everywhere. It's on people's mobile phones; it's in their bank records—it's in all kinds of places. … So I think that there are real, positive consequences for doing a good job of describing the complexity of this phenomenon, because it gives prosecutors tools to get convictions.
Views on the introduction of new specific coercive control offences
4.102
The Committee received a range of evidence both for and against the introduction of specific coercive control offences in criminal jurisdictions other than Tasmania.
4.103
Ms Hayley Foster, Chief Executive Officer of Women’s Safety NSW, stated that her organisation was ‘strongly in favour’ of criminalisation and that this position was supported by 96 per cent of survivors who it had surveyed on the issue. She also noted strong support from advocates of survivors from a multicultural background.
4.104
Ms Foster noted both the prevalence and impact of coercive control, and its role as a predictor of homicide, arguing:
… if we want to reduce violence against women in this country, if we want to stop homicides, we need to criminalise it.
4.105
Similarly, representatives of the Australian Association of Social Workers said the organisation supported the criminalisation of coercive control.
4.106
The Law Council of Australia argued that the number of convictions under the coercive control offence in England and Wales showed that it is possible to prove the offence beyond reasonable doubt and is high enough to warrant consideration of the value of such an offence in Australia.
4.107
However, drawing on the experiences of Tasmania, England and Wales, and Scotland, as discussed above, a consistent theme in evidence was that any new coercive control offences should be accompanied by broader reforms.
4.108
Women’s Safety NSW submitted that without systemic reforms, any new coercive control laws would result in ‘very little change in practice, and therefore women’s access to safety, justice and wellbeing’ and could introduce the risk of abuse by perpetrators and a lack of safety for victim-survivors.
4.109
It recommended changes to screening and risk assessment tools; police policy and procedural guidelines; and prosecution, judicial and sentencing guidelines; as well as increased training and specialisation of frontline police, police prosecutors and judicial officers.
4.110
Women’s Legal Service Tasmania also expressed support for the induction of specific offences targeting coercive and controlling behaviours, but with the caveat that:
… the creation of new offences alone is unlikely to achieve the intended impact, without substantial institutional reform and support for implementation measures. This in part requires, police, lawyers and courts to embrace and consider coercion and control as a series of behaviours and actions as opposed to focusing on single incidents. It also requires an investment in facilitated discussions within the community to challenge norms permissive of family violence. It requires the links between gender inequality and family violence to be recognised by all those responding to family violence.
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Similarly, while supporting the consideration of a new coercive control offence, Domestic Violence NSW emphasised that this should be accompanied by training for professionals in the justice system and resourcing for frontline services to support victim-survivors. Ms Renata Field, Research and Policy Manager at Domestic Violence NSW, stressed that criminalisation of coercive control would not be effective if it was ‘only a change in a piece of paper’:
What will be effective is if it's part of a suite of reforms that include increasing the understanding and expertise of the legal system and the police responses to ensure that they are well equipped to better understand what domestic and family violence looks like, and to increase understanding in the communities so that people can better identify what's happening to them and what's happening to people in their families.
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In considering the form of any new coercive control offences, Women’s Safety NSW made a series of recommendations drawing on the experiences of other jurisdictions. This included that the offences:
explicitly recognise the ‘course of conduct’ element of family violence;
contain an objective standard of proof when assessing the impact of an offender’s behaviour on the victim-survivor; and
are not limited to intimate or cohabiting relationships.
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Other submitters expressed concerns about the introduction of any new coercive control offences in Australia. Issues raised in evidence included the lack of evidence supporting the effectiveness of such offences, and the potential for adverse outcomes for victim-survivors.
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For example, Associate Professor Kate Fitz-Gibbon, Director of the Monash Gender and Family Violence Prevention Centre, explained:
As yet, there is no evidence which shows that introducing a standalone offence of coercive control increases women's safety outcomes and improves their access to justice. We do have a really significant body of research which points to the ways in which the justice system fails to respond adequately to women's experiences of violence and fails to provide justice and, in some cases, actually further traumatises women who come within the confines of the criminal justice system. So we really believe that there's quite significant work to be done before Australia is ready to have an offence of coercive control.
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Associate Professor Fitz-Gibbon addressed this point again at a subsequent public hearing, noting that ‘there has not been a change in femicide rates in any of the jurisdictions where a criminal law of coercive control has been introduced’. She also noted concerns about the potential impact of any new offence on marginalised communities, such as Aboriginal and Torres Strait Islander communities.
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In its submissions, the Centre cautioned state and territory governments against the introduction of a stand-alone criminal offence of coercive and controlling behaviour without a sufficient evidence base.
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Similarly, Ms Alison Birchall, representing Domestic Violence Victoria, recommended that further research was required into whether coercive control offences in other jurisdictions has improved safety for victim-survivors and resulted in changes in perpetrator behaviour:
I think one of the questions around introducing further criminalisation of types of family violence has to be the question around whether that is effective in changing perpetrator patterns of behaviour. To date, there isn't a lot of evidence that would demonstrate that it's the case with coercive control legislation.
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Good Shepherd Australia New Zealand submitted:
… a new criminal offence for coercive control is not supported by sufficient evidence to suggest the efficacy of such laws. Laws responding to coercive controlling behaviours already exist across all Australian state and territory jurisdictions; a new law in this area would be overly simplistic and could in fact be misused against women as respondents.
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Women’s Legal Service Victoria recommended that coercive control not be criminalised:
There is insufficient evidence that the creation of new coercive control offences will improve the safety of women and children experiencing or at risk of family violence. Laws to criminalise coercive control are an overly simplistic response to a complex problem. They are and are likely to have adverse consequences for victim survivor safety and perpetrator accountability, as well as disproportionately and detrimentally impacting disadvantaged population groups.
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The Australian Women Against Violence Alliance argued that criminalisation of coercive control may exacerbate existing issues with police responses to family and domestic violence, including ‘fear of gender bias, discrimination, not being believed, fear that the abuse will escalate following police intervention, or that they will be blamed for the abuse committed against them’. It noted that many organisations were cautious about the effectiveness of criminalisation without ‘careful planning’.
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The Monash Gender and Family Violence Prevention Centre also argued that women in coercive and controlling relationships may experience significant barriers in accessing the criminal justice system.
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Responding to a question about measuring the success of a new offence of coercive control, Ms Kilburn from the Women's Aid Federation of England said there were three elements:
Will introducing this legislation increase the long-term safety of women and children? Will it support them in their path of healing… And, most importantly, is there any way that it will change the behaviour of those perpetrators?
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No to Violence submitted that the benefits of a new offence of coercive control could be achieved through improving expertise in the police and legal professions, strengthening risk assessment processes, and increasing community awareness of coercive control. These measures are discussed in further detail in the next section.
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While acknowledging that the criminalisation of coercive control is a matter for states and territories, a number of witnesses and submitters discussed possible roles for the Australian Government.
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For example, the Law Council of Australia submitted that the Australian Government is ‘well-placed to facilitate a national dialogue’ on whether a new offence should be created. It also suggested there was a role for the Australian Government in establishing a consistent definition of family and domestic violence for all states and territories that included coercive control, and in considering what educational materials should be made available alongside any legislative reform.
Other responses to coercive control
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The Committee received evidence on a number of other possible measures to address coercive control.
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Several submitters highlighted the importance of working to increase awareness of coercive and controlling behaviour.
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Australia’s National Research Organisation for Women’s Safety (ANROWS) advised that ‘research indicates that Australians have a poorer understanding of non-physical tactics of violence against women, as compared to physical tactics’. National Legal Aid also submitted that ‘[a]wareness that non-physical violence can breach various criminal laws is considered to be generally capable of improvement’.
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Mrs Jacqueline Crombie, a friend of a victim of intimate partner homicide, argued it was important to raise awareness of the dangers of coercive control:
Hard-hitting awareness campaigns alerting the early warning signs would have impact and would encourage women to seek help as soon as possible in the relationship before abusive behaviours become established and the victim becomes trapped. Many victims of coercive control are unaware that they are in an abusive relationship. This may well also provoke abusive men to question themselves on their behaviours before they become ingrained. Such a campaign would also create awareness for the family and friends of victims and perpetrators and give clearer information about the dangerous behaviours that are often clouded or difficult to articulate.
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Similarly, Ms Christine Craik, immediate past President of the Australian Association of Social Workers, told the Committee that many victim-survivors do not understand they are in a coercive and controlling relationship:
A lot of people in society have this understanding that family violence needs to be physical … But from coronial inquests around the country, we understand that in the cases where women are killed coercive control has been a really paramount factor. In some of those cases, the first instance of physical abuse in that relationship has been the lethal use of physical abuse, and if we'd been able to understand coercive control better as a community that woman might have understood the sort of danger she was in.
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Mr Russell Hooper from No to Violence, Australia’s largest peak body for organisations and individuals who work with perpetrators, said that increased community awareness of coercive control was a ‘precondition’ for the criminalisation of coercive control. Ms Lizette Twisleton, also from No to Violence, stressed the importance of changing public perceptions of family violence to recognise non-physical forms of violence:
We know that most people still see family violence as physical. Even when we're working with men and they start to come into a program, the area of working with coercive control … is tricky because they'll come in with the sense that, 'I didn't hit her; I'd never hit a woman'.
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In evidence to the inquiry, Assistant Commissioner Lauren Callaway from Victoria Police expressed her support for a national awareness campaign on coercive control.
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As noted in the previous section, several submitters recommended education and training on coercive control for police, prosecution services and judicial officers.
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The Monash Gender and Family Violence Prevention Centre recommended consistent and mandated training for state and territory police and other criminal justice practitioners on identifying and responding to coercive and controlling behaviours in family violence matters:
This should include education on the range of behaviours that can constitute coercive control, the impact and seriousness of coercive control, the barriers it creates to help-seeking for and disclosure of DFV and the need to understand DFV as a pattern of behaviours rather than an isolated event.
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Women’s Legal Service Victoria submitted that improvements to justice system responses to coercive control required ‘improved understanding of coercive control as family violence and, where coercive control is reflected in existing legislation, legal actors exercising their existing responsibilities’:
Embedding best practice and family violence expertise across the justice system requires training and education of all justice system stakeholders – including police, legal practitioners, judicial officers and court staff – and system improvements that support implementation.
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No to Violence recommended that information about coercive control be included in training in the mental health, justice, medical, and family violence sectors.
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Submitters also highlighted the importance of improving risk assessment practices to better identify and respond to coercive control.
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Ms Kylie Beckhouse, representing National Legal Aid, explained that some risk-assessment tools do not identify coercive and controlling behaviours. She said the need for risk-assessment tools to assist professionals was ‘a big issue’.
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Noting that coercive control is a risk factor preceding intimate partner homicide and restricts a victim-survivor’s ability to seek help, the Monash Gender and Family Violence Prevention Centre submitted:
It is essential that all common risk assessment and management frameworks across Australian states and territories embed a shared language on, and an understanding of, the behaviours that constitute coercive control. Developing practice guidance for the identification, assessment and management of risk for coercively controlled relationships is central to improving practitioners’ ability to facilitate women’s help seeking behaviours, meet their support needs and better identify and respond to the high level of risk that this form of DFV presents.
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The Centre recommended a review of state and territory risk identification, assessment, and management practices for coercive and controlling behaviours to ensure that coercive control is embedded in all relevant policies and practices across Australia.
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Dr Heather Nancarrow, Chief Executive Officer of ANROWS, argued that systems responses needed to be more aware of the coercive and controlling element of violence:
When we have a broader community based understanding of these kinds of tactics of control and this extreme sense of entitlement in relationships, perpetrators of violence will be less able to manipulate those systems to further perpetrate abuse on their partners, and control in particular.
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Lastly, as noted in the previous section, some submitters called for a consistent definition of coercive control across all states and territories. The Committee heard that, at present, some jurisdictions, while not having specific offence of coercive control, expressly recognise coercive control as a form of family violence, while others do not.
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Women’s Legal Service Victoria explained that coercive control is recognised in Victorian legislation:
In its definition of family violence, Victoria’s Family Violence Protection Act (2008) recognises that family violence includes ‘threatening and coercive behaviour’ and ‘behaviour that in any other way controls or dominates a family member and causes them to feel fear for their safety or wellbeing or for that of another person’. Recognition of coercive control in the Victorian legislation ensures a person is held criminally accountable where a Family Violence Intervention Order is breached.
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It recommended that other states and territories draw on the Victorian legislation in developing ‘a consistent understanding and legislated definition of family violence, in all its forms, nationally’.
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Similarly, the Monash Gender and Family Violence Prevention Centre recommended a review of definitions of coercive control in civil law to ensure consistency across states and territories:
The lack of a consistent definition can provide barriers to obtaining an intervention order/protection order, among other policy and practice challenges.
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A similar point was made by the Law Council of Australia:
… it would be wonderful if each state and territory had the same definitions, if 'coercive controlling' was defined in the same way. It defeats the purpose if financial control is considered to be family violence in one jurisdiction but not another.
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No to Violence also recommended the inclusion of coercive control in legal definitions of family violence at the state and federal levels.
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Further evidence on a consistent national definition of FDSV is discussed in Chapter 2.
Technology-facilitated abuse
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Technology-facilitated abuse (TFA) is the use of technology to aid the perpetration of abuse against a current or former intimate partner or family member. It is usually a form of coercive control and part of a pattern of controlling behaviour designed to exert power over a victim-survivor and/or to intimidate, inflict harm or embarrassment. It is both a manifestation of coercive control and a means to facilitate control and abuse.
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This section discusses the forms and features of TFA and the responses to the problem with regard to professional practices, training and awareness for professionals and at-risk groups, and the role of commercial media platforms and providers.
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The Committee received extensive evidence about the growing prevalence of TFA in circumstances of family violence. The submission from the eSafety Commissioner defined TFA as:
… any behaviour that uses technology to isolate, harass, monitor, stalk, impersonate, threaten or humiliate someone. Within family and domestic violence situations, technology can be used as a tool to exert power and control over women and allow perpetrators to inflict harm and abuse that is often invisible to others. It often forms part of a pattern of coercive control.
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Elaborating on the forms of TFA, the submission explained that:
TFA takes place through a wide range of platforms and devices. This includes social media services, email, mobile phones and computers, as well as through the use of tracking and recording devices, GPS services, children’s toys, internet-enabled cars and household goods. Examples include:
sending multiple abusive or threatening texts
sending menacing images, such as a noose or a coffin
sharing – or threatening to share – intimate images without consent
accessing (or ‘hacking’) a woman’s email or social media account to discover her personal information or to send offensive emails to her friends, family or workplace that appear to come from the woman
using surveillance devices to spy on the woman or her children, planted in the home or the family car; this includes the use of drones, smart devices such as televisions and other household appliances
installing spyware and malware to override a device’s security systems
monitoring a woman’s activities through information gained from social media via her children, extended family and friends
setting up impersonator accounts to harass and cause additional stress and anxiety, or to impersonate the woman on porn or dating sites
using apps or GPS devices to track location, for example, putting a tracking device on the collar of the family pet or hidden in children’s toys
isolating the women [sic] by changing her passwords and locking her out of her own accounts and devices, or by physically destroying her devices, and
making threats in obscure or indirect ways to avoid being seen to breach protective orders, but which still have an impact on the woman.
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Such forms of abuse have grown along with the rapid development of information and communication technology since the end of last century and the take-up of smartphones into almost every Australian household.
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While there is currently limited data nationally on technology-facilitated abuse, ANROWS has received funding for a project to develop knowledge about national prevalence rates, the experience of victim-survivors, the characteristics of such abuse and evidence about responses.
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Ms Karen Bentley from the Women’s Services Network (WESNET) informed the Committee about surveys of family violence practitioners showing the increase in all forms of online abuse in the last five years. A survey conducted in 2015 found 82 per cent of practitioners’ clients reporting abuse through smartphones, a figure increasing to 96 per cent in a 2020 survey. Reflecting the increased sophistication of perpetrators’ techniques, ‘GPS tracking using apps on smartphones has risen from 33 per cent to 60 per cent’ between 2015 and 2020.
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Statistics from the Office of the eSafety Commissioner showed that, at the end of June 2020, the Office had received over 3,900 reports of image-based abuse. Despite nearly all the websites that have been reported to date being hosted overseas, the Office has successfully removed image-based abuse material in about 90% of cases where removal was requested.
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Ms Julie Inman Grant, the eSafety Commissioner, foresaw that the vectors of abuse would continue to expand as technology developed:
Right now most forms of technology facilitated abuse are very low tech. … It's 100 texts in an hour, vicious emails or impersonator accounts on Facebook… Now we are seeing internet-of-things devices being hacked into. You can now control your lights or thermostat through remote mobile phone apps. We've heard about people whose partners are turning up the heat to 45 degrees to sweat their family out.
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Regarding the targets of TFA, it has become recognised that, like family violence generally, the problem has disproportionate effects on particular communities and social groups. The eSafety Commissioner’s submission noted that:
While TFA can affect anyone, irrespective of age, geographic location or cultural background, some communities and cohorts are at greater risk. They also experience abuse in particular ways.
Research demonstrates that Aboriginal and Torres Strait Island women, women living with a disability, women from CALD [culturally and linguistically diverse] communities and women identifying at [sic] LGBTQI+ are at increased risk of TFA.
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One of the concerning features of TFA is that while practitioners and victim-survivors have become aware of the seriousness of the problem, there is less recognition amongst state institutions, such as the criminal justice system, and amongst the community at large.
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Perpetrators are able to carry out abuse with little risk of sanction, as outlined by Ms Inman Grant:
One of the issues is that perpetrators can do this now with relative impunity. AVOs and intervention orders don't consider technology-facilitated abuse or gaslighting or any of the things that they do to continue harassing a woman, almost under the radar. These aren't penalised.
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The Committee received evidence that, in many cases, authorities did not appear to understand the problem and were thus taking ineffective or even counterproductive action. The submission from Domestic Violence Victoria (DV Vic) and the Domestic Violence Resource Centre Victoria (DVRCV) explained:
In DVRCV’s 2015 national survey of practitioners across Australia, we found that when women experience technology-facilitated abuse, the response from both police and courts is often inconsistent and unhelpful. Practitioners identified that technology-facilitated abuse made it more difficult to protect victims, and that services struggled to know how to advise them. Practitioners stated that the common advice that professionals offered to victims is to simply ‘switch off’ devices or social media accounts; however, doing so can be counterproductive, create greater isolation and risk for the victim-survivor, and in some cases has not effectively stopped the abuse and harassment.
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When asked about technology-facilitated abuse as a form of coercive control, Ms Kylie Beckhouse, representing National Legal Aid, suggested it was not well understood by professionals who are not specialists in family violence:
I think it's fair to also say that a lot of the professionals who deal with people who are victims of technology-facilitated abuse are sometimes not well trained and don't understand the risks and the extent to which technology can be used in that way.
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The Monash University Gender and Family Violence Prevention Centre outlined factors hindering law enforcement professionals and the need for training:
Research has shown a range of factors that hinder police from being able to provide appropriate support and responses to victims of image-based sexual abuse, including a lack of resources, evidentiary limitations, jurisdictional boundaries, victim-blaming, or harm minimization attitudes held by police, and an absence of training on relevant laws or on appropriate responses to victims. … The challenges and limitations of policing and prosecuting technology-facilitated offences that are motivated by control must be addressed through more education, training, and resources for police, prosecutors, judicial officers, and victim support services, specifically on technology-facilitated abuse.
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Nevertheless, there are signs of progress, as discussed by Ms Bentley in relation to magistrates’ recognition of TFA:
I think it varies from magistrate to magistrate—the population of magistrates has many different views. In my time, I feel like more magistrates are taking notice of it and that, slowly, there is more notice being taken of digital evidence as it comes in front of them.
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The relative neglect of TFA as a subject of professional attention can be seen as reflecting community attitudes that see the manipulative use of communication technology as a minor or trivial matter. The submission from No to Violence observed that:
Research has also found that when expressing a formal concern to Police about technology facilitated abuse, victim survivors commonly encounter perceptions that technology-facilitated abuse is less serious than other types of abuse.
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Similarly, Ms Inman Grant cited the example of:
… young men who might be engaging in image based abuse because they're big-noting themselves or they think it's a bit of fun—don't understand the devastating impacts that this can have on the victim.
Responses to technology-facilitated abuse
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Evidence to the Committee about what can be done to respond to the growing phenomenon of TFA included legislative changes, professional practices, training and awareness for both professional staff and at-risk groups, and the role of commercial media platforms and providers.
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The Committee was informed by the Attorney-General’s Department that the Australian Government had made legislative changes in response to technology-facilitated abuse. In August 2018, criminal offences were introduced into the Criminal Code (s474.17A) through the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Act 2018. The offences criminalise the use of a carriage service to threaten or menace, harass and cause offence. Since the change, two people have been convicted of offences under the legislation and, at the time of writing, three other prosecutions were before the courts.
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The Australian Government, in December 2019, launched the consultation process for a new Online Safety Act. Proposals in the draft legislation include expanding the role of the eSafety Commissioner and a ‘new cyber abuse scheme for Australian adults to facilitate the removal of serious online abuse and harassment and introduce a new end user takedown and civil penalty regime’.
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The Committee received evidence that the current regime around apprehended violence orders (AVOs) was inadequate in dealing with TFA. As noted above, Ms Inman Grant argued that TFA was sometimes used by perpetrators as a way of ‘skirting AVOs and other intervention orders’ because such interventions do not penalise technology-facilitated abuse. Ms Inman Grant added:
We … need to encourage employers and institutions to do more, and we need to be talking to the judiciary and law enforcement about the impacts that this has. I just spoke to the Judicial College of Victoria and I said, 'Hey, make sure you strengthen those provisions around technology facilitated abuse and AVOs, and make sure you don't just give perpetrators a slap on the wrist.'
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Regarding professional practices and training, Ms Inman Grant submitted that professionals in the field should treat TFA ‘as a flag, as an indicator of intention for further abuse’.
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Legal Aid NSW told the Committee that its compulsory staff training on family violence includes a component on TFA.
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The Committee noted that in a 2019 report on information and communications technology, the Parliamentary Joint Committee on Law Enforcement recommended that the Government develop education materials to inform law enforcement agencies and personnel about new and emerging technology that offenders may use to facilitate family violence, and to provide guidance on appropriate strategies for responding. The Committee was advised that the Government was considering its response to this recommendation.
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The eSafety Commissioner launched eSafetyWomen in 2016 to increase knowledge about the issues amongst key stakeholders, aiming to:
… empower all Australian women to manage technology risks and abuse. The program helps women take control of their online experiences by:
providing practical tools and information to equip women to protect themselves and their families against all forms of online abuse
training frontline, specialist and support staff in the domestic and family violence sector, giving them the knowledge, skills and resources to effectively support women and their families, and
actively raising awareness and understanding of TFA to help women identify it and take steps towards preventing it.
… As at June 2020, more than 12,000 domestic and family violence frontline workers, advocacy groups and women’s organisations have participated in eSafety’s face-to-face workshops or webinar seminars.
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The eSafety Commissioner submitted that ‘capacity building in online safety and digital literacy is critical for women of all ages‘ and should be embedded in the school curriculum. The Commission said that ‘eSafety refers to the “four Rs of online safety”: respect, responsibility, resilience and reasoning’.
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The eSafety Commissioner also suggested that women should be encouraged into science, technology, engineering and mathematics (STEM) industries to ‘create a gender equal future’:
Promoting gender equality within STEM has a number of benefits. It assists in shifting the traditionally male paradigm of STEM. It also addresses the leadership pipeline, as it positions and progresses women to take leadership roles in the STEM industry.
… Having an equal number of women at the forefront of the STEM industry expands who is influencing and shaping the technological developments and services that are becoming increasingly pervasive and important in our lives.
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More broadly, the Australian Human Rights Commission submitted that upskilling women in STEM and digital literacy could increase women’s economic security and boost women’s workforce participation, which it said were crucial to facilitating the ability of women to escape family violence without risking poverty or homelessness.
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Economic security is discussed later in this chapter, and gender inequality as a driver of FDSV is discussed in Chapter 6.
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Ms Bentley from WESNET mentioned the example of a program to support a specific group of TFA victim-survivors, women who needed to replace their smartphones because a perpetrator was sending abusive messages to their existing device. WESNET has, since 2014, been working in cooperation with Telstra to provide up to 6,000 free phones per year to the clients of WESNET who need a new phone to escape harassment.
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Given the importance of social media platforms and other communication technology in the spread of TFA, the Committee examined the issue of the role and responsibilities of private sector providers in the field.
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The eSafety Commissioner put the argument that technology companies had a responsibility to police the systems they had created:
You build the roads. You need to build the guardrails. But you also need to police these roads for dangerous drivers and get them off so that other people aren't being damaged. You're the only ones that have the tools to be able to identify when attacks like this are happening at scale.'
Ms Inman Grant added:
When companies are designing, developing and deploying these technologies, they need to think about how they can be weaponised and try to build as many protections in at the front end so that we're building it in, rather than bolting it on and retrofitting after the damage has been done.
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The Committee heard evidence from Google, Facebook and Snap about their approaches to dealing with abusive material sent through their respective systems and platforms.
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The companies said that they recognised their responsibility to safeguard users against the threat of on-line abuse. For example, Ms Samantha Yorke from Google Australia told the Committee:
… protecting those members of society who are most vulnerable, be they children or people fleeing abusive relationships, is a responsibility that is shared across government, law enforcement, the tech industry and support and advocacy groups. We all have a role to play, and my presence here today signals Google's commitment to making a responsible contribution to keeping Australians safe.
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Each company outlined its own policies and practices to protect users and ensure their systems were not vectors of abuse.
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Facebook provided information about its:
… multi-faceted approach to safety that spans the following four areas:
developing policies to keep people safe, and investing in cutting-edge technology to enforce our policies
building tools to help people control their individual experience
developing resources to support people who may need them
building partnerships to help support women to be empowered online, especially with Australian safety partners such as WESNET and the Alannah & Madeline Foundation, and consulting with other experts such as Dr Nicola Henry and Dr Asher Flynn.
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A representative from Facebook, Mrs Mia Garlick, elaborated to the Committee on the ways that users can manage their settings on the application to protect themselves against abuse, and mentioned that the organisation regularly removes millions of posts containing harassing content, hate speech and nudity.
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Ms Yorke explained that Google’s systems:
… remove content from our search results globally in a few limited circumstances, and they include child sex abuse material; web spam, malware and phishing sites; certain personal information, such as bank account details; and the non-consensual sharing of explicit images, which of course is also known colloquially as 'revenge porn'.
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Ms Yorke told the Committee that it used ‘both computer science tools and human reviewers to identify and stop a range of online abuse’. This included removing millions of videos from its You Tube application for ‘policy violations’.
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Snap explained its approach to user safety as follows:
Prevention: Our “Safety by Design” (SbD) approach anticipates and prevents the opportunity for abuse before it can happen. Snapchat is designed with a focus on real friendships: we’ve made it difficult for strangers or predators to identify (in particular, younger) users. …
Action: We give users the ability to take action on inappropriate content or behaviour, by providing simple-to-use in-app reporting tools where users can quickly notify us of any safety issues. …
Response: In response to reports from users, law enforcement, trusted flaggers and Snapchat itself, our global, 24/7 Trust & Safety team reviews reports and takes appropriate action…
Partnership: we work with a range of expert safety organizations and leaders to inform our approach to safety and make sure Snapchat is a safe environment for our users.
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The providers emphasised that they were cooperating with government agencies and non-government organisations to strengthen their responses to the problem. For example, Mrs Garlick from Facebook mentioned that her organisation was working with the eSafety Commissioner’s office to establish a pilot scheme under which people can prevent intimate images from being shared on Facebook.
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Ms Yorke from Google Australia told the Committee about:
… the support that we offer to non-government organisations seeking to prevent violence against women and children, including WESNET, the Alannah & Madeline Foundation, Bravehearts and the joint Monash-RMIT two-year research study into technology facilitated abuse that's been funded by Australia's National Research Organisation for Women's Safety, and I am proud to be an adviser to that research project.
Financial abuse
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Financial abuse is a form of coercive control where a perpetrator takes control of a victim-survivor’s financial affairs, such as personal expenditure and the management of bank accounts, investments, superannuation and assets such as the family home, in order to restrict the victim-survivor’s access to economic resources, to hinder their financial independence and/or to inflict economic harm.
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The section discusses financial abuse as an aspect of women’s relative lack of economic autonomy, describes the forms and means of the abuse, and discusses responses to the issue, such as those proposed by the 2015-16 Victorian Royal Commission into Family Violence.
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Women are especially vulnerable to financial abuse because of the economic situation of women in Australian society. Women, on average, have lower incomes than men and usually earn less than their partners. They also have lower levels of superannuation savings. Women’s rate of participation in the workforce is below that of men and they perform the majority of unpaid domestic work. During the course of their working lives, women are more likely to take extended periods of time off work to care for children, elderly parents or for other family-related reasons.
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Women’s relative lack of economic independence can create opportunities for abuse of their current or former partners by perpetrators of family violence.
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The Australian Banking Association (ABA) defined financial abuse as a ‘form of family violence that negatively impacts a person financially and undermines their efforts to become economically independent’.
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In the view of ANROWS:
… economic/financial abuse involves a perpetrator restricting their victim’s access to economic resources, to apply control and hinder their victim’s independence… Financial abuse can take place pre-separation, throughout legal processes, and post-separation.
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The Economic Abuse Reference Group (EARG), a network of community organisations working to influence government and business responses to the financial impact of family violence, noted that ‘…between 78-99% of women presenting to family violence services, report a history of economic abuse.’
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The ABA told the Committee:
The abuser may use violence and intimidation to restrict access to a person’s bank accounts, force a person to relinquish control over assets or take out loans, prevent them from working or accessing benefits, withhold living expenses from them or their children, use the transaction description free-text field in electronic transfers to harass / intimidate or abuse, and restrict / monitor access to mobile phones and the internet.
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This kind of abuse can leave victim-survivors with:
… insufficient funds to meet basic needs, homelessness, the prospect of long-term financial hardship, being forced to pay all joint loan payments, and potentially acquiring a poor credit history from a joint loan. It may also result in a person being prevented from engaging in regular employment.
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Like other forms of coercive control, financial abuse is not incident based, but instead involves patterns of behaviour. Financial abuse is likely to continue over a long term and, in many cases, can lock a victim-survivor of family violence into an abusive relationship because she does not have the economic means to escape. In some cases, women who have left an abusive relationship will return to their partner because they cannot sustain themselves financially outside the abuser’s household.
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ANROWS cited research findings that ‘around one in five women returned to violent partners because they had no financial support, or nowhere else to go’. The organisation noted that ‘financial stress is a significant but under-addressed barrier to safety for women experiencing domestic and family violence’ and that ‘employment is an important pathway for women leaving violent relationships ‘.
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Lack of capacity to afford alternative accommodation is also a major factor forcing women back into abusive relationships. ANROWS argued that ‘women were more likely to return to their partner if they had difficulty maintaining independent accommodation’. Housing issues are discussed further in Chapter 8. The organisation added that:
Insecure housing has many flow-on effects: it can affect child protection issues, custody issues, the ability to retain possessions, the ability to get and keep a job, and the ability to maintain social connections …
Forms and means of financial abuse
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The Committee was given information about ways in which the banking system was used to perpetrate financial abuse. The ABA provided examples of the many mechanisms through which such abuse can occur:
coercion into taking out loans;
withholding funds to prevent a partner leaving an abusive relationship;
preventing withdrawal of funds to pay for basic expenses;
joint funds spent on extravagant purchases or gambling;
one partner left to meet all loan repayments;
refusal or delay in selling a joint home; and
failure to abide by court orders to make mortgage repayments.
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Bank accounts can be exploited to carry out one form of technology-facilitated abuse. Several submitters mentioned that perpetrators can make child support payments or multiple low-value transactions (for example, one cent) in a victim-survivor’s bank account and leave threatening or abusive messages in the free text transaction description field.
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The ABA told the Committee that perpetrators exercising coercive control ‘may not allow their partner to have their own bank account’. And even if a victim-survivor does escape, abuse can continue because:
When fleeing a violent situation, it may not be possible to collect identification documents, or the perpetrator may withhold them, or they don’t show a new address, making it difficult to meet bank identification standards.
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The social welfare system can also be a place where financial abuse is perpetrated and where women’s lack of economic independence is manifested. Economic Justice Australia, a peak organisation for providers of advice on social security issues, pointed out that there are ‘systemic barriers that victims can face in dealing with Centrelink and accessing appropriate support’.
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Economic Justice Australia described how ‘perpetrators of DFV are often able to use, or threaten to use, legal and government systems to coercively control their victims’. They cited examples of cases where perpetrators force partners to mis-report their circumstances, cause victim-survivors to lose income by mis-reporting childcare arrangements, or where victim-survivors become criminally liable to fraudulent claims made by an abusive partner.
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The ABA cited the example of perpetrators using their access to joint accounts to withdraw funds from social welfare payments meant for a victim-survivor.
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The submission from Women in Super described some of the issues faced by victim-survivors from lack of superannuation. Perpetrators may hold all superannuation funds and prevent partners from earning income and thus accumulating superannuation. This can strengthen coercive control and add to the barriers to leaving an abusive partner. Victim-survivors find that problems with low superannuation savings ‘follow them even when they escape such relationships and stay with them into retirement’.
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Related evidence was given by Dr Susan Cochrane from Relationships Australia:
… for many separating families superannuation is the one big asset. It might, in fact, be the only asset. At the moment, if there is a violent relationship, if there is a controlling coercive relationship and if there is an imbalance of knowledge about the family finances, often the person who has the superannuation account has been able to withhold information and delay sharing that information in a way that essentially stalls the matter, prolongs the matter.
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One group that is particularly vulnerable to financial abuse is elderly people. The broader issue of elder abuse is discussed in Chapter 5. In relation to financial abuse of older people, the Law Institute of Victoria mentioned that:
Older women are a particularly vulnerable cohort with regards to FV [family violence]. They are less likely to report violence as a result of financial dependence on their partner, fear of isolation and risk of estrangement from their children and/or grandchildren, feelings of shame and a general lack of knowledge about available services and the law. FV extending to circumstances commonly described as ‘elder abuse’ is pervasive and often involves physical, emotional and financial abuse.
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Elaborating, the Institute added that:
In terms of elder abuse, statistics show that financial abuse is identified as the fastest growing type of abuse. Elder financial abuse can give rise to causes of action under contract, property, equity and family law. In relation to intervention orders, misidentifying an elderly person as the perpetrator of FV may result in homelessness and/or loss of financial and/or economic support. This in turn may lead to a loss of access to adequate health services, and increased risk of mental health issues due to isolation and/or neglect.
Responses to financial abuse
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One of the most comprehensive inquiries into responses to family violence in Australia, including the financial and economic aspects of the problem, was undertaken by the Victorian Royal Commission into Family Violence of 2015-16. The report of the Royal Commission made 15 recommendations (recommendations 107-121) regarding financial and economic matters.
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The Economic Abuse Reference Group (EARG) mentioned that the Royal Commission’s recommendations on financial abuse covered three main areas:
enhance ability of community services to help address, and prevent, personal economic problems and financial distress that result from family violence;
change business processes to reduce the financial impact of family violence on customers (this includes staff training and improved responses to signs of family violence and the resulting financial hardship); and
change legislation, specifically in the area of tenancy laws and fines, to improve outcomes for people experiencing family violence.
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Following the report of the Royal Commission, EARG conducted research from March 2016 to December 2019 into community, business and government responses to the financial impact of family violence, and published its report in January 2020. With a primary focus on the 15 recommendations from the Royal Commission relating to financial security and economic abuse, the three-fold objectives of the report were to:
review the recent context of family violence and economic abuse in Victoria
examine progress in reducing the economic impact of family violence
support further work and discussions to influence government and business responses to family violence.
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In reviewing the context of financial abuse in Victoria, the EARG report discussed the obstacles faced by women in dealing with financial abuse, the important role of financial counselling and future directions for EARG. In regard to progress since the Royal Commission, EARG noted that the inquiry ‘triggered a significant shift in momentum for business and government to respond to the financial impact of family violence’ and highlighted the ‘leadership … demonstrated by many larger industry organisations across banking, insurance, utilities and telecommunications’. In relation to future priorities, EARG suggested continued commitment to encouragement of awareness of family violence amongst business and government, embedding good practice across businesses and consideration of potential violence risks when granting credit.
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In addition to its discussion about responses and further work at the Victorian state level, EARG made recommendations for federal government action. The ten recommendations relate to legislation, processes and services in connection with social security, taxation, superannuation, family courts, credit, consumer protection and counselling services.
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The EARG report paid particular attention to the role of financial counsellors ‘at the frontline of economic abuse recovery’. The report stressed that:
Financial counselling is an essential part of recovery for family violence and economic abuse as it supports women to navigate across the complex territories of family law, family violence and debt.
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Other submitters also attested to the important role played by financial counsellors in assisting victim-survivors of financial abuse and facilitating their exodus from abusive relationship by helping them to build financial independence.
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The submission from Financial Counselling Australia (FCA), the peak body for financial counsellors in Australia, argued that:
Working with people affected by family violence can be incredibly complex. As such, there is a need for specialist family violence financial counsellors.
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FCA said that, following the recommendations of the Victorian Royal Commission, the Victorian Government now funds positions for 22 full-time financial counsellors. The organisation noted that if other states and territories provided similar levels of funding there would be a significant increase in the number of much-needed counsellors across the country.
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The call for increased numbers of financial counsellors was supported by the University of New South Wales Tax Clinic, which argued that many people in need of assistance would not be ‘aware of the existence of financial counsellors’.
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Ms Anna Bligh from the ABA expressed the support for financial counsellors within the banking sector:
… where particularly vulnerable customers are assisted by a financial counsellor, they are significantly more likely to be able to restore that customer to some form of financial wellbeing, and that's in the banks' interests.
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Submissions to the Committee were in agreement that financial counsellors were most effective when they were able to work in concert with other professionals and make connections between different types of support services. FCA cited the example of a typical case where a:
… financial counsellor worked with the family violence case worker, therapeutic counsellor, a community legal service (dealing with the insurance issues) and a women’s legal service (which led to a referral to a pro-bono lawyer).
… Having specialist family violence financial counsellors working in integrated service models is best practice. Family violence financial counsellors work with industry, community and government to improve the systems that people affected by family violence engage with.
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The Committee also received evidence about the work of the ABA in protecting customers at risk of FDSV. The ABA’s Banking Code of Practice requires its member banks ‘to take extra care with vulnerable customers, including those experiencing family or domestic violence’. The ABA has also issued the Industry Guideline: Financial Abuse and Family and Domestic Violence which ‘outlines a framework for member banks to raise awareness, promote consistent arrangements to support customers, and to encourage best practice across the banking industry’.
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The Commonwealth Bank of Australia funded research on how banks can better address financial abuse, conducted by UNSW’s Gendered Violence Research Network. The report on the research, made public and shared with the ABA as reference for its member banks, outlines key areas for banks considering measures to support customers in dealing with financial abuse, including:
examine ways to tailor products for victim-survivors;
establish a domestic and family violence team to assess the potential for products and procedures to be misused by perpetrators;
provide specialist training for domestic and family violence teams; and
provide content for education programs to support young people to adopt financial capability and financial management practices that do not disadvantage young women.
Other complex forms of violence
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The Committee received evidence on other complex forms of violence that are used by perpetrators to enforce control over various aspects of victim-survivors’ lives and to reduce their personal autonomy, such as reproductive coercion, dowry abuse, forced marriage and female genital mutilation/cutting.
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Referring to the problem of reproductive coercion, Australian Women against Violence Alliance (AWAVA) said that the term:
… is used to define a range of interpersonal and structural coercive behaviours that impact on a woman’s reproductive autonomy. These behaviours can include birth control sabotage (where contraception is deliberately thrown away or tampered with), threats and use of physical violence if a woman insists on condoms or other forms of contraception, coercing a woman to have sex or to fall pregnant, or to have an abortion, as well as forced sex and rape.
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Marie Stopes Australia elaborated on reproductive coercion as a kind of abuse that can include:
sabotage of another person’s contraception;
pressuring another person into pregnancy;
controlling the outcome of another person’s pregnancy;
forcing or coercing another person into sterilisation; and
any other behaviour that interferes with the autonomy of a person to make decisions about their reproductive health.
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AWAVA advised that organisations involved in supporting victim-survivors reported that women from CALD and indigenous communities are over-represented among women subjected to reproductive coercion. The broader issues facing women from these communities are discussed in more detail in Chapter 5.
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With regard to dowry abuse, the AustralAsian Centre for Human Rights and Health (ACHRH) told the Committee that:
Abusive behaviours linked to the giving of dowry may include demands for property, cash, white goods and jewellery, gifts that are expected on recurrent basis, after the wedding. Dowry-related demands or extortion may take the form of threats or acts of physical violence or abandonment, in order to extract more dowry from the victim and their family, leaving the victim increasingly threatened and financially dependent on the perpetrator.
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The Senate Legal and Constitutional Affairs Committee 2019 inquiry into dowry and dowry abuse concluded that dowry abuse was a form of economic abuse and recommended that such abuse should be included in the definition of family violence in relevant legislation. The Committee’s other recommendations related to immigration procedures such as protection of women on temporary visas, development of data and an evidence base on dowry abuse, the provision of information to at-risk groups and education campaigns for community and professional stakeholders.
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Forced marriage was described to the Committee as:
… a complex form of gender and family-based violence that primarily affects women and girls. Forced marriage occurs when a person gets married without freely and fully consenting because they have been coerced, threatened or deceived, or because they are incapable of understanding the nature and effect of a marriage ceremony, or when the person was under the age of 16 when they were married.
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Witnesses submitted that all forms of non-physical abuse intersect with each other and manifest themselves differently within the norms and practices of various communities. The issue therefore needs to be informed by ‘intersectional and culturally-sensitive approaches to prevention’.
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A study on reproductive coercion and its wider cultural context presented to the Committee by Marie Stopes Australia argued that:
… power and control [are] key elements of all of these forms of violence and coercion. Some societal norms regarding behaviours, practices and attitudes support or enable a perpetrator of RC [reproductive coercion] to exert power or control over another person. These societal behaviours, practices and attitudes are, in turn, shaped by the social, economic, political and cultural environment.
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Similarly, AWAVA submitted that: ‘forced marriage is a form of gender-based violence as well as family violence. The impacts and experiences include (but are not limited to) physical abuse, sexual abuse, reproductive coercion, financial abuse, and social isolation’. AWAVA added that ‘the practice of dowry can be associated with abuse, control and demands for more substantial gifts or financial contributions’.
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Dowry abuse and forced marriage are both forms of abuse that, in the view of Dr Madeleine Ulbrick from Good Shepherd Australia New Zealand, are ‘part of that continuum of family violence that engages multiple members of one family, creating pressure on individuals within the family as well’. Dr Ulbrick therefore submitted that victim-survivors should be ‘supported through greater service provision outside of a criminal justice setting and within a specialist family violence service setting and, particularly, within an intervention order system as well’.
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Good Shepherd Australia New Zealand also contended that the current understanding of forced marriage in the context of modern slavery was too narrow. It defined the problem largely as a matter for the criminal justice system which hampered the capacity to deal with cases in a way which is ‘culturally appropriate for victims-survivors’.. The current reliance on an Australian Federal Police (AFP) investigation creates a number of challenges, including:
1
Limited participation in the system by victim/survivors of forced marriage because the perpetrator/s is a family member;
2
Lack of access to support, compounded by the fact that the Commonwealth framework requires referrals from the Australian Federal Police, meaning that individuals not wishing to report their circumstances to the police are unable to access the federally funded support programs for victim/survivors of forced marriage;
3
Young women aged 16-18 represent a significant number of those at risk, and therefore, a more nuanced intervention than the current approach is required to meet their unique needs.
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Support for this view can be found in evidence from the AFP which emphasised that cases of forced marriage ‘can be based internationally and part of close-knit cultural and family networks, and members can be reluctant to report matters or give evidence’. The AFP added that there can be complex interactions with issues of ‘immigration and visa status’, as further discussed in Chapter 5.
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The practice of female genital mutilation/cutting (FGM/C) as a form of abuse was raised with the Committee. The Australian Institute of Health and Welfare undertook research in 2019 attempting to estimate the prevalence of FGM/C in Australia. Its report described the estimates as ‘rudimentary’, noting that evidence on FGM/C in Australia is limited and proposing topics for further research to improve the evidence on FGM/C at the national level.
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AWAVA submitted that:
This harmful practice is rooted in gender inequality and should not be attributed to purely religious or cultural practice. It needs to be addressed through…human-rights and intersectional lenses.
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Jesuit Refugee Service and the Refugee Advice and Casework Service proposed that ‘the health sector would benefit from training and further research focused on issues’ such as FGM/C.
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AWAVA recommended that the Australian Government provide ongoing support for the National Education Toolkit for Female Genital Mutilation/Cutting Awareness (NETFA). NETFA is an Australian Government-funded project that aims to train health professionals supporting women who have experienced FGM/C, to raise awareness in affected communities and to gather information on the issue.
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A further important issue raised in evidence was the need for clear and nationally-consistent definitions of the various types of complex and non-physical abuse and to ensure that they are considered as part of broader responses to FDSV. This would contribute to better resourcing of support services, improve legislative responses and facilitate actions such as intervention orders and criminal proceedings.
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Marie Stopes Australia added that integrating non-physical abuse into primary prevention measures, such as public health campaigns, would prevent victim-survivors of this kind of abuse from being made ‘invisible’.
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In the case of dowry abuse and forced marriage, Dr Ulbrick argued in favour of:
… across all Australian state and territory jurisdictions, a nationally consistent definition of 'family violence' which includes dowry abuse as part of economic abuse and also includes examples such as forced marriage as part of family violence so victims-survivors would be able to obtain an intervention order which would provide some level of protection…
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An example of how the issue of dowry abuse could be integrated into legislation was cited by ACHRH, which told the Committee of its success in lobbying for the inclusion of dowry abuse in the Victorian Family Violence Protection Act in 2019.
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Similarly, AWAVA submitted that ‘the definition of family violence needs to be expanded to include forced marriage. This would open up opportunities for wider multi-sectoral engagement and information and support services for individuals at risk. AWAVA made the same case in relation to dowry abuse.
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The question of definitions is also related to the need for better data on complex and non-physical violence, which was raised in submissions.
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AWAVA detailed a range of issues on which data should be gathered:
While data on women’s health and safety are routinely collected by the government, there remains a need for consistency in accounting for the diversity of the victims/survivors and their lived experience along with types of violence. Issues including sexual harassment, dowry abuse, reproductive coercion, forced marriage, Female Genital Mutilation/Cutting (FGMC), and technology-facilitated abuse are not routinely collected which can create challenges in understanding, preventing and addressing the experiences of violence holistically.
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Marie Stopes Australia argued that the Australian Bureau of Statistics (ABS) Personal Safety Survey would be an ‘ideal means’ to gather data on non-physical violence and ‘create impetus for its consideration in the suite of research, policy and practice initiatives to address violence against women’.
Committee comment
Coercive control
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The Committee recognises that coercive control is a central element of FDSV, and has the potential to inflict serious and long-lasting harms on victim-survivors, including children. The Committee also recognises the evidence linking coercive control to severe physical violence and homicide.
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However, the issue of whether or not to criminalise coercive and controlling behaviour is complex and vexed, and has challenged policy makers for some time.
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Many arguments were put forward in evidence to this inquiry as to why coercive control should be criminalised. Equally, other evidence suggested caution in the introduction of new criminal offences, or recommended against this approach. In this respect, the evidence to this inquiry was consistent with the findings of other inquiries and reviews that have considered this issue, in that there was no consensus of opinion amongst stakeholders as to the merits of criminalisation.
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The Committee is also cognisant of the operation of the existing Tasmanian offences relating to economic abuse and emotional abuse or intimidation, which have resulted in very few charges, let alone convictions. However, the Committee also notes the operation of new offences in England and Wales and Scotland, which, based on evidence to this inquiry, appear to be more promising.
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It must be also emphasised that the Australian Government has no constitutional power to legislate for the criminalisation of coercive control. The decision to criminalise coercive control is a matter entirely for the legislature of each state and territory.
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The Committee notes that, at the time of this inquiry, the issue of coercive control, including the merits or otherwise of criminalisation, is under active consideration in several states and territories, including New South Wales, Queensland, and the Northern Territory.
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For the reasons set out above, the Committee does not consider it appropriate to make a recommendation regarding the criminalisation of coercive and controlling behaviour.
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The Committee does, however, consider that the Australian Government can work constructively with state and territory governments to ensure that any future decisions to criminalise coercive control are, as much as possible, taken in a consistent manner across jurisdictions. This is only logical in light of the Committee’s views and recommendations set out in Chapter 2, about resolving the present inconsistency in family violence definitions across Australian jurisdictions.
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Moreover, the Committee notes that in February 2021 both Houses of Parliament passed a resolution recognising the harm caused by persistent controlling behaviour, and calling on the Australian Government to ‘coordinate a national discussion regarding criminalising coercive control and related implementation support’.
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There is also a role for the Australian Government in working with the states and territories to ensure that any new offences are informed by the experiences of the approaches taken in Tasmania, England and Wales, and Scotland.
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In particular, systemic changes are required for any new offence to be effective. It is therefore imperative that the design and implementation of a criminal regime for coercive control be done in close consultation with police, the judiciary, the legal profession, family violence services, and victim-survivors.
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Comprehensive training and community awareness campaigns are also critical in the implementation of any new offences, and should be appropriately funded.
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The Committee recommends that the Australian Government and state and territory governments develop shared principles to guide any future offences of coercive and controlling behaviour, with a view to ensuring consistency across jurisdictions to the extent possible.
These principles should address:
the behaviours and patterns of behaviour captured by any new offences;
the breadth of relationships captured by any new offences;
the standard of proof required by any new offences;
mitigating the impact of any new offences on groups with particular vulnerabilities; and
associated implementation issues, including but not limited to minimum standards for training in any new offences; and, very importantly, public awareness raising about any new offences.
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The Committee also recognises that criminalisation is not the only response to coercive and controlling behaviour. The fact that the Committee has not made a recommendation to criminalise coercive control does not mean that combating it should not be a priority for all governments. The Committee makes three additional recommendations in this regard.
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It is apparent to the Committee that coercive control is not widely understood in the community. Public awareness campaigns are vital to bring attention to the fact that coercive control is a form of family violence that should not be tolerated.
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Given that coercive control is established as being a predictor of severe physical violence and homicide, improving the early identification of coercive control should be a priority. To this end, training about coercive control should occur across a range of sectors, and coercive control should be embedded in relevant risk assessment and management practices.
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In addition, the Committee notes its recommendation in Chapter 2 that a uniform national definition of FDSV should include coercive and controlling behaviour alongside other non-physical forms of violence. This would assist in resolving the current variation in how state and territory legislation currently captures coercive control.
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The Committee recommends that the Australian Government fund a specific public awareness campaign about coercive and controlling behaviour as a form of family, domestic and sexual violence and a predictor of severe physical violence and homicide.
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The Committee recommends that the Australian Government, and state and territory governments, develop and provide funding for training for the identification of coercive and controlling behaviour for police; justice and legal sector practitioners; and health, mental health, social services, and specialist family, domestic and sexual violence service workers.
The Committee further recommends that the Australian Government and state and territory governments consider developing minimum standards for training on coercive control and including training on coercive control in relevant professional qualifications.
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The Committee recommends that the Australian Government and state and territory governments undertake a review of relevant risk identification, risk assessment, and risk management practices to ensure that coercive and controlling behaviour is adequately captured.
Technology-facilitated abuse
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The Committee considers that TFA is a major element of the problem of FDSV, one that is growing in scale and seriousness and that needs to be addressed at a number of different levels.
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While it is true that a great of deal of TFA uses relatively straightforward technology—for example, text messages and abusive messages in bank transactions—there is evidence that a growing number of perpetrators are taking advantage of more sophisticated technology and methods such as installing spyware and malware on electronic devices and using tracking devices.
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Not all existing measures to deal with TFA have kept up with the pace of technological change, and the current legislative and regulatory regime is sometimes inadequate. Perpetrators are not only making wider use of technology, they are exploiting loopholes in current provisions—for example, the limited conditions imposed by apprehended violence orders—that allow them to continue to perpetrate abuse while remaining technically within legal boundaries.
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The Committee takes the view that there is a need for greater community awareness of the abusive nature and legal implications of TFA. Education resources should be developed in consultation with at-risk communities to improve their understanding and management of information technology and social media and to increase skills in online safety and digital literacy.
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Social media platforms need to take greater responsibility for the use and abuse of their applications and implement more extensive measures to prevent their platforms being used for TFA. The Committee commends the work already being undertaken in cooperation between the eSafety Commissioner and Google and Facebook on the principles of Safety by Design, where safety features are built into systems from the design stage.
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The Committee notes that the Australian Government made changes to the Criminal Code in 2018 to criminalise the use of an electronic carriage service to threaten, menace, harass or cause offence. But the Committee also notes that the number of prosecutions since the change has been small. Despite the relatively short time since the change was made, the Committee is concerned that the small number of prosecutions may reflect problems with enforcing the provision or with police willingness to make use of it.
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The Committee recommends that the Australian Government continue funding for critical research around the context, motives and outcomes of technology-facilitated abuse—in particular, by providing dedicated funding to the Office of the eSafety Commissioner and Australia’s National Research Organisation for Women’s Safety.
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Based on recommendations from the eSafety Commissioner, the Committee recommends that the Australian Government, in cooperation with state and territory governments where applicable:
Develop and implement education initiatives that drive cultural change and increase awareness about the abusive nature and legal implications of technology-facilitated abuse, focused on women and girls at risk of experiencing technology-facilitated abuse and men and boys at risk of perpetrating it.
Through a process of co-design, work with at-risk communities to develop resources to raise their awareness of technology-facilitated abuse and their capacity to identify and manage it.
Develop resources for children and young people to help them understand and manage the ways that technology is used in family, domestic and sexual violence.
Develop and implement capacity building initiatives to increase all women’s and girls’ skills in online safety and digital literacy.
Embed comprehensive and nationally coordinated respectful relationships and online safety education into the Australian curriculum across all learning stages.
Facilitate more gender-balanced science, technology, engineering and maths (STEM) industries by developing initiatives to upskill and reskill women for entry opportunities and leadership pathways in STEM.
Ensure Australia is represented on, and contributes to, global initiatives and coalitions to advance the rights of women and girls and uphold and deliver on international agreements, including in relation to technology-facilitated abuse, the potential for technology to drive gender equality, and Safety by Design.
Ensure that capacity building initiatives to increase women’s skills in online safety and digital literacy occur both in Australia and in our region.
Ensure government support and funding for Safety by Design and encourage industry players to implement and champion its principles, to promote a safer online environment for women and girls.
Fund the eSafety Women program on an ongoing basis.
Expand the eSafety Women program to deliver education and training to the judiciary, legal profession, and law enforcement.
Establish a new program to provide training for frontline workers and others about how children are involved in technology-facilitated abuse cases involving their parents.
Fund eSafety to evaluate and advise on technical solutions to protect victim-survivors experiencing technology-facilitated abuse.
Provide dedicated funding for Safety by Design to assist in increasing its adoption and impact.
Develop an education and awareness campaign on dating applications.
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The Committee makes the additional following recommendations relating to technology-facilitated abuse:
There should be greater acknowledgement that appropriate technology use is a shared community responsibility. It is not simply a responsibility of platforms to host and police content.
There should be greater clarity around a platform’s obligation to remove content, including through the Online Safety Act.
In order to open or maintain an existing social media account, customers should be required by law to identify themselves to a platform using 100 points of identification, in the same way as a person must provide identification for a mobile phone account, or to buy a mobile SIM card.
Social media platforms must provide those identifying details when requested by the eSafety Commissioner, law enforcement or as directed by a court.
The Government should consider regulating to enable law enforcement agencies to access a platform’s end-to-end encrypted data, by warrant, in matters involving a threat to the physical or mental wellbeing of an individual or in cases of national security.
There should be a substantial increase in criminal and civil penalties for technology-facilitated abuse to act as a greater deterrent for errant behaviour.
All government hosted websites and applications should have readily available (and searchable) avenues where a victim-survivor of technology-facilitated abuse can seek assistance to have abusive material removed expeditiously.
Financial abuse
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The Committee notes that women are especially vulnerable to financial abuse because of their economic situation in Australian society. Women’s relative lack of economic independence can create opportunities for perpetrators of FDSV to abuse their current or former partners. Financial abuse can lock a victim-survivor of family violence into an abusive relationship because they do not have the economic means to escape or, if they decide to leave, to stay away permanently.
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The Committee notes the current dearth of financial counsellors employed by state and territory governments and endorses the view that financial counselling plays an important role in assisting victim-survivors of financial abuse and facilitating their exodus from abusive relationships by helping them to build financial independence.
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The Committee welcomes the work being undertaken by members of the Australian Banking Association in addressing the harms of FDSV suffered by their customers. The Committee notes that the Banking Code of Practice is now five years old and suggests that it be updated to recognise the modern challenges faced by customers who are victim-survivors of FDSV, particularly in light of the increasing threats caused by TFA.
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The Committee notes the issues raised in evidence about access to superannuation and splitting superannuation, and reiterates Recommendation 15 of this Committee’s 2017 report on A better family law system to support and protect those affected by family violence (see Appendix A) in relation to these matters.
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The Committee recommends that the next National Plan provide funding for programs, including in schools, to improve the financial literacy and reduce the financial abuse of women.
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The Committee recommends that the Australian Government work with the states and territories (other than Victoria) to provide funding for an increased number of financial counsellors.
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The Committee recommends that the Attorney-General take the following measures to enable the identification of financial information and facilitate superannuation splitting:
develop an administrative mechanism to enable swift identification of financial information, including superannuation, by parties to family law proceedings or victim-survivors of family, domestic or sexual violence; and
amend the Family Law Act 1975 and relevant regulations to reduce the procedural and substantive complexity associated with superannuation splitting orders, including by simplifying forms required to be submitted to superannuation funds.
Other complex forms of violence
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The Committee notes the evidence about other complex forms of physical and non-physical violence and supports the position that reproductive coercion, forced marriage, dowry abuse and female genital mutilation/cutting should be seen as part of the broader problem of FDSV, and that responses should be informed by an understanding of the cultural contexts in which they may occur.
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The Committee notes recommendations in Chapter 2 to include all forms of family violence including complex forms of violence in future Australian Bureau of Statistics Personal Safety Surveys and in a uniform national definition of family violence.
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The Committee notes in particular that the harmful practice of female genital mutilation/cutting still occurs in parts of the Australian community. The Committee believes there is a need for further research on this issue, as well as awareness raising in affected communities.
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The Committee recommends that the Australian Government, and state and territory governments, provide support for research and community awareness raising on the harmful practice of female genital mutilation/cutting, including by providing ongoing funding for the National Education Toolkit for Female Genital Mutilation/Cutting Awareness.