Chapter 2

Chapter 2

The legislative framework

1.1        There are no laws in Australia that specifically criminalise the practice of dowry or dowry abuse. However, in an Australian first and as a result of the Victorian Royal Commission into Family Violence (Royal Commission), the Victorian Government recently legislated to refer to dowry abuse as an example of family violence. 

1.2        Other jurisdictions in Australia and internationally arguably capture dowry abuse in their prohibition of economic (or financial) abuse, itself often recognised as a form of family violence.

1.3        This chapter sets out the legislative frameworks in federal, state and comparative international jurisdictions in respect of dowry abuse as a form of economic abuse.

Federal law

2.1        There are three areas of federal criminal law that are relevant to the occurrence of dowry abuse: criminal law, family law and migration law.

2.2        This section will outline the relevant provisions of the Criminal Code Act 1995 (Criminal Code), the Family Law Act 1975 (Family Law Act) and the Migration Act 1958 (Migration Act) and Migration Regulations 1994 (Regulations).

Criminal law

2.3        While economic abuse and financial abuse are not specifically criminalised in the Criminal Code, forced marriage is an offence under the Criminal Code.

2.4        The committee received evidence that there may be a connection between forced marriage and dowry abuse.[1]

2.5        Forced marriage is defined at section 270.7A of the Criminal Code:

  1. A marriage is a forced marriage if one party to the marriage (the victim) entered into the marriage without freely and fully consenting:
    1. because of the use of coercion, threat or deception; or
    2. because the party was incapable of understanding the nature and effect of the marriage ceremony.

2.6        It is an offence to cause a person to enter into a forced marriage, and to be a party to a forced marriage where the party is not a victim.[2]

2.7        Forced marriage is classified in the Criminal Code as a 'slavery-like practice'. The Criminal Code also makes it an offence to engage in slavery[3] and other slavery‑like practices, such as servitude[4] and forced labour.[5]

2.8        The nexus between these offences and dowry abuse will be examined further in chapter 3.

Family law

2.9        The Family Law Act defines 'family violence' as 'violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful'.[6]

2.10      The Act includes the following examples of behaviour that may constitute family violence:

(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support...[7]

2.11      Although 'economic abuse' does not appear in the Act, the Act provides that this list of examples are not exhaustive.[8] The term 'abuse' is defined in the Act.[9]

2.12      The National Domestic and Family Violence Bench Book explains what happens when allegations of child abuse or family violence are raised:

...each party has an obligation to file and serve a Notice of Risk (Federal Circuit Court of Australia) or Notice of Child Abuse, Family Violence or Risk of Family Violence...

...

When an allegation of family violence or abuse is raised, a Family Court is required to take prompt action [which] includes considering what interim or procedural orders (if any) should be made to enable appropriate evidence about the allegation to be obtained as expeditiously as possible and so as to protect the child or any of the parties to the proceedings. Prompt action also includes making such orders as the court considers appropriate (such as orders or injunctions for personal protection of the child or any other person) and dealing with the issues raised by the allegations as expeditiously as possible.[10]

2.13      The following exchange between the Chair and Ms Ashleigh Saint of the Attorney-General's Department (AGD)—which administers the Family Law Act—at the committee's public hearing in Canberra on 3 December 2018, sets out the intersection between federal, state and territory laws with respect to family violence:

Ms Saint:...In terms of the criminalisation of that behaviour, that is predominantly dealt with under state and territory law in relation to abuse.

CHAIR:  Why is it primarily within state and territory law and not within family violence law?

Ms Saint:  The Family Law Act deals with family violence in the context of proceedings in family law. General assault and family violence offences against the person and other offences like that fall within state and territory law.

CHAIR:  That's right. I just have to go back to understanding this. So, even though family violence, assaults et cetera are relevant within family law, the offences themselves are defined within state law. That's what you're saying?

Ms Saint:  That's correct. But those offences having occurred would be relevant in family law proceedings.[11]

Migration law

2.14      The Migration Act provides that the Minister may grant a non-citizen a visa to travel to and enter Australia, and/or remain in Australia.[12]

2.15      The Migration Amendment (Family Violence and Other Measures) Bill 2018 recently amended the Migration Act to:

2.16      The amendments to the Migration Act refer specifically to family violence:

The purposes of this Division, to the extent it applies in relation to the sponsored family visa program, are:

  1. to strengthen the integrity of the program; and
  2. to place greater emphasis on the assessment of persons as family sponsors; and
  3. to improve the management of family violence in the delivery of the program.[14]

2.17      The bill received Royal Assent on 10 December 2018.

2.18      The Regulations stipulate the types of visas that may be granted by the Minister, how the visas are to be granted, and the conditions of those visas.

2.19      While the Migration Act does not define family violence, the Regulations define 'relevant family violence' as:

...conduct, whether actual or threatened, towards:

  1. the alleged victim; or
  2. a member of the family unit of the alleged victim; or
  3. a member of the family unit of the alleged perpetrator; or
  4. the property of the alleged victim; or
  5. the property of a member of the family unit of the alleged victim; or
  6. the property of a member of the family unit of the alleged perpetrator;

that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.[15]

2.20      The Regulations refer to 'family violence committed by the sponsor' in respect to sponsorship for spouse, partner, prospective marriage and interdependency visas, and provide that the Minister may approve the application of a spouse, de facto partner or prospective spouse of the sponsor where the applicant 'suffered family violence committed by the sponsor'.[16]

2.21      On 1 September 2016, the same day that the Migration Amendment (Family Violence and Other Measures) Bill 2018 was introduced into Parliament, the Governor-General made the Migration Legislation Amendment (2016 Measures No. 3) Regulation 2016 to strengthen integrity and improve support for vulnerable applicants.[17]

2.22      Schedule 6 of this regulation commenced on 18 November 2018 and amended Division 1.4B of Part 1 of the Regulations relating to family violence. This schedule implements action item 11 of the National Plan to Reduce Violence against Women and their Children 2010–2022 (the National Plan), which requires an additional information disclosure by the Australian husband or fiancé.[18]

2.23      The National Plan will be discussed further in chapter 5.

State and Territory family/domestic violence laws

2.24      All states and territories with the exception of New South Wales have definitions of ‘economic abuse’ in their family/domestic violence laws.

2.25      The AGD referred to the state and territory criminal laws in its submission, describing these laws as providing for a wide range of offences that cover violent and non-violent behaviour, and which, to the department's knowledge, 'would capture a range of dowry-related abuse'.[19]

2.26      However, as varying levels of protection are offered to potential victims of domestic and family violence under state and territory-based schemes, 'victims and potential victims of dowry abuse, human trafficking, slavery and forced marriage have varying levels of protection available to them'.[20]

2.27      This section examines the relevant definitions of 'economic abuse' in each jurisdiction.

Australian Capital Territory

2.28      The Family Violence Act 2016 (ACT) includes 'economic abuse' as a form of family violence,[21] defined as follows:

"economic abuse", of a family member, means behaviour by a person that is coercive, deceptive or that unreasonably controls the family member without the family member's consent including by the person's exploitation of power imbalances between the person and the family member—

  1. in a way that takes away the financial independence or control the family member would have but for the behaviour; or
  2. if the family member is wholly or predominantly dependent on the person for financial support to meet the living expenses of the family member or the family member's child—by withholding the financial support.[22]

2.29      This Act also provides examples of family violence by a person in relation to a family member of the person, such as 'sexually coercive behaviour', but does not include dowry abuse as an example of family violence.[23]

New South Wales

2.30      Domestic violence legislation in New South Wales does not specifically identify economic or financial abuse as a form of domestic and family violence.

2.31      However, such abuse could be caught by the definition of a 'domestic violence offence' in the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which is:

...an offence (other than a personal violence offence) the commission of which is intended to coerce or control the person against whom it is committed or to cause that person to be intimidated or fearful (or both).[24]

2.32      A 'personal violence offence' includes an offence under section 44 of the Crimes Act 1900 (NSW)[25] where a person fails 'to provide the necessities of life':

A person:

  1. who is under a legal duty to provide another person with the necessities of life, and
  2. who, without reasonable excuse, intentionally or recklessly fails to provide that person with the necessities of life,

is guilty of an offence if the failure causes a danger of death or causes serious injury, or the likelihood of serious injury, to that person.[26]

Northern Territory

2.33      In the Northern Territory, the Domestic and Family Violence Act 2007 (NT) recognises 'economic abuse' as a form of family violence,[27] where economic abuse is defined as follows:

"Economic abuse", of a person, includes any of the following conduct (or any combination of them):

  1. coercing the person to relinquish control over assets or income;
  2. Example of coercion for paragraph (a)

    Using stand-over tactics to obtain the person's credit card.

  3. unreasonably disposing of property (whether owned by the person or owned jointly with the person or someone else) without consent;
  4. unreasonably preventing the person from taking part in decisions over household expenditure or the disposition of joint property;
  5. withholding money reasonably necessary for the maintenance of the person or a child of the person.[28]

Queensland

2.34      The Domestic and Family Violence Protection Act 2012 (Qld) includes economic abuse as a form of domestic violence,[29] and defines economic abuse as:

...behaviour by a person (the "first person") that is coercive, deceptive or unreasonably controls another person (the "second person"), without the second person’s consent—

  1. in a way that denies the second person the economic or financial autonomy the second person would have had but for that behaviour; or
  2. by withholding or threatening to withhold the financial support necessary for meeting the reasonable living expenses of the second person or a child, if the second person or the child is entirely or predominantly dependent on the first person for financial support to meet those living expenses.[30]

South Australia

2.35      The Intervention Orders (Prevention of Abuse) Act 2009 (SA) provides that '"Abuse" may take many forms including physical, sexual, emotional, psychological or economic abuse', where an 'act of abuse' includes an act that results or is intended to result in 'an unreasonable and non-consensual denial of financial, social or personal autonomy'.[31]

2.36      Further, the Criminal Law Consolidation (Domestic Abuse) Amendment Bill 2018, introduced into the Legislative Council on 17 October 2018, proposes a new criminal offence of ‘controlling or coercive behaviour in a relationship’ which carries a maximum penalty of seven years:

  1. A person commits an offence if—
    1. the person repeatedly or continuously engages in behaviour towards another person (the victim) that is controlling or coercive; and
    2. at the time of the behaviour, the person and the victim are in a relationship; and
    3. the behaviour has a serious effect on the victim; and
    4. the person knows or ought to know that the behaviour will have a serious effect on the victim.[32]

Tasmania

2.37      In Tasmania, 'economic abuse' is included in the definition of 'family violence' in the Family Violence Act 2004 (Tas).[33] 

2.38      The offence of economic abuse appears in the Act as follows:

A person must not, with intent to unreasonably control or intimidate his or her spouse or partner or cause his or her spouse or partner mental harm, apprehension or fear, pursue a course of conduct made up of one or more of the following actions:

  1. coercing his or her spouse or partner to relinquish control over assets or income;
  2. disposing of property owned –
    1. jointly by the person and his or her spouse or partner; or
    2. by his or her spouse or partner; or
    3. by an affected child –
  3. without the consent of the spouse or partner or affected child;

  4. preventing his or her spouse or partner from participating in decisions over household expenditure or the disposition of joint property;
  5. preventing his or her spouse or partner from accessing joint financial assets for the purposes of meeting normal household expenses;
  6. withholding, or threatening to withhold, the financial support reasonably necessary for the maintenance of his or her spouse or partner or an affected child.[34]

2.39      Tasmanian law does not allow for the possibility that this abuse might be committed by someone other than a spouse or partner.

Victoria

2.40      The meaning of family violence appears in the Family Violence Protection Act 2008 (Vic) as follows:

  1. behaviour by a person towards a family member of that person if that behaviour—
    1. is physically or sexually abusive; or
    2. is emotionally or psychologically abusive; or
    3. is economically abusive; or
    4. is threatening; or
    5. is coercive; or
    6. in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person; or
  2. behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour referred to in paragraph (a).

2.41      In 2016, the Royal Commission recommended that, within 12 months:

The Victorian Government amend section 6 of the Family Violence Protection Act 2008 (Vic) to expand the statutory examples of family violence to include forced marriage and dowry related abuse.[35]

2.42      The Victorian Parliament legislated on this recommendation through the Justice Legislation Amendment (Family Violence Protection and Other Matters) Act 2018 (Vic). Victoria is therefore the only jurisdiction that specifically includes dowry abuse as an example of family violence.[36]

1.4        The Act does not change the meaning of 'family violence' in the Family Violence Protection Act 2008 (Vic), but inserts the following relevant behaviours as examples of family violence:

2.43      The term 'economic abuse' is defined in section 6 of the Family Violence Protection Act 2008 (Vic) as:

...behaviour by a person (the first person) that is coercive, deceptive or unreasonably controls another person (the second person), without the second person's consent—

  1. in a way that denies the second person the economic or financial autonomy the second person would have had but for that behaviour; or
  2. by withholding or threatening to withhold the financial support necessary for meeting the reasonable living expenses of the second person or the second person's child, if the second person is entirely or predominantly dependent on the first person for financial support to meet those living expenses.[38]

2.44      Although examples of economic abuse are listed within section 6 of the Act, dowry abuse is not included as an example of this form of abuse.

Western Australia

2.45      The Restraining Orders Act 1997 (WA) includes the following examples of behaviour that may constitute family violence:

(g) unreasonably denying the family member the financial autonomy that the member would otherwise have had;

(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or a child of the member, at a time when the member is entirely or predominantly dependent on the person for financial support;[39]

International approaches to dowry abuse

2.46      This section sets out the approaches to dowry abuse as a form of economic abuse in the like jurisdictions of Canada, New Zealand and the United Kingdom (UK). This is important because dowry abuse often involves the family of perpetrators and victims, both in Australia and offshore; and because of evidence that the practice of dowry and dowry abuse have been 'globalised' in recent years, fuelled by migration patterns and the attraction of marriage and visa pathways to advanced developed countries.

2.47      Addressing dowry abuse and the issue of abandoned brides will require international cooperation and action in many countries, and Australia has the opportunity to show leadership and advance the debate and policy thinking.

2.48      This section also examines the criminalisation of the practice of dowry in India, a subject raised by many inquiry participants.

2.49      The committee received limited evidence about dowry abuse in other countries.

Canada

2.50      While there is no specific offence of family violence in the Criminal Code 1985 (CAN) (Canadian Criminal Code), most acts of family violence are crimes in Canada. Many offences concerning financial abuse within the family—such as theft, misappropriation of money held under direction, and extortion—are related to dowry.

2.51      In 2014, Bill S-7, 'An Act to amend the Immigration and Refugee Protection Act, the Civil Marriage Act and the Criminal Code and to make consequential amendments to other Acts', was announced by Canada's Citizenship and Immigration Minister. The Zero Tolerance for Barbaric Cultural Practices Act 2015, which introduced forced marriage offences into the Canadian Criminal Code, received Royal Assent on 18 June 2015.

2.52      There is no specific reference to dowry or dowry-related violence in the Canadian Criminal Code.

2.53      In Canada, provincial and territorial governments make laws in areas of their own jurisdiction.[40]

New Zealand

2.54      The recently passed Family Violence Act 2018 (NZ), which comes into force on 1 July 2019, includes 'dowry-related violence' in its definition of violence:

Violence against a person may be dowry-related violence (that is, violence that arises solely or in part from concerns about whether, how, or how much any gifts, goods, money, other property, or other benefits are—

  1. given to or for a party to a marriage or proposed marriage; and
  2. received by or for the other party to the marriage or proposed marriage.[41]

2.55      The Act also provides that financial or economic abuse—such as 'unreasonably denying or limiting access to financial resources, or preventing or restricting employment opportunities or access to education'—are forms of psychological abuse.[42]

2.56      Further, as in Australia, forced marriage is an offence in New Zealand.[43]

The United Kingdom

2.57      The draft Domestic Violence and Abuse Bill 2018 (UK) proposes a new statutory definition of domestic abuse which is expanded to include economic abuse. The consultation paper on the draft Bill states:

...while the current non-statutory government definition of domestic abuse already recognises financial abuse, we are aware that this can be restrictive in circumstances where victims may be denied access to basic resources such as food, clothing and transportation. In addition, victims may be forced into taking out loans or entering into other financial contracts by the perpetrator. We therefore want to take a more expansive approach to account for all these forms of abuse.[44]

2.58      The proposed statutory definition would also define controlling behaviour and coercive behaviour:

Controlling behaviour

Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.

Coercive behaviour

Coercive behaviour is an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.[45]

2.59      The consultation paper does not, however, discuss dowry or dowry abuse. The submission to the consultation by Liberty (The National Council for Civil Liberties) discussed the legal definition of domestic abuse and observed the omission of dowry abuse from the proposed definition.

We welcome the move to consolidate the legal definition of domestic abuse and we particularly support the proposals to include: (1) abuse by family members and extended family members, (2) to include both single incidents and patterns of behaviour, and (3) to use the wider term of 'economic abuse' as opposed to 'financial abuse'. However, the codification of domestic abuse into UK legislation must be consistent with current legal guidance. The legislative definition of domestic abuse should accord with the family law practice direction ­– Practice Direction 12J – which deals specifically with this issue. The practice direction was recently updated by the President of the Family Division – Sir James Munby -- who recognised that specific forms of violence against women and girls (VAWG) which particularly impact black and ethnic minority (BAME) communities are less likely to be recognised as forms of abuse without a clear definition. As a result, the practice direction expressly refers to forms of abuse such as forced marriage, so-called ‘honour-based’ violence, abandonment and dowry abuse, which have cultural specificity. For the avoidance of doubt, and to ensure cultural forms of abuse are properly recognised, the new definition of domestic abuse in the Bill should mirror those in the practice direction, in addition to the other proposals supported above.[46]

2.60      The consultation period on the draft Bill closed at the end of May 2018.[47] The bill is not yet before the UK Parliament.

2.61      The House of Commons Home Affairs Committee published its report on domestic abuse on 22 October 2018. The report examines the Government’s proposed strategy for tackling domestic abuse and identifies issues which the government must address in the draft bill and in its future policies. The report identified that '[e]conomic abuse is associated with an increased risk of homicide because victims tend to stay with abusive partners for longer when they do not have the financial means to leave'.[48]

2.62      There is no specific piece of legislation under English law to settle dowry disputes.[49]

India

2.63      Since 1961, India has prohibited both the giving and receiving of dowry. The Dowry Prohibition Act 1961, which prohibits this practice, defines dowry as:

...any property or valuable security given or agreed to be given either directly or indirectly:

  1. by one party to a marriage to the other party to the marriage; or
  2. by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before or any time after the marriage in connection with the marriage of said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.[50]

2.64      Pursuant to the Act, where a person has engaged in the giving or receiving of dowry, the person is punishable for up to five years imprisonment and a fine 'which shall not be less than fifteen thousand rupees or the amount of the value of such dowry'.[51]

2.65      The Act also provides that it is an offence to demand dowry.[52]

2.66      In addition to these legislative provisions, section 498A of the Indian Penal Code 1860 provides that, where a husband or the relative of the husband of a woman subjects this woman to cruelty, the perpetrator shall be punished with imprisonment for up to three years and may also be subject to a fine—this provision 'protects the wife from harassment by the husband or the husband's family in cases where an illegal dowry is sought'.[53]

***

2.67      The following chapters examine the nexus between criminal law and dowry abuse, family law and dowry abuse, and migration law and dowry abuse.

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