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The relationship between Human Service Practice, Law and Ethics is both inextricable and multifaceted, yet this symbiosis is critical for the provision of ethical, competent and compliant services by the Human Service Agency (‘the Organisation’) and the Human Service Worker (‘the Worker’) to its service users (‘the client’).
The legal framework relevant to a Domestic Violence Support Worker (DVSW), the Organisation and the client in human service provision will be explored, using an exemplar of providing direct human services to a female client of Aboriginal descent from Rockhampton, Queensland (Qld) who is experiencing domestic and family violence (DFV) and has two young children.
Applicable civil, criminal and administrative laws in the case management of DFV matters in Qld will be identified and described, with predominant legislative references sourced from the current Domestic and Family Violence Protection Act 2012 (Qld) and Child Protection Act 1999 (Qld); also described is the interface of the Domestic and Family Violence Protection Act 2012 with The Family Law Act 1975 (Cth) and Family Law Amendment Act 2011 (Cth).
Despite Australia’s purported ‘progressive’ political and social landscape, laws relating to domestic violence were only examined with a view to criminalisation in the 1980’s following activism by women’s groups including Women’s Liberation; up to that point, domestic violence was not considered to be a significant issue, and was contained predominantly within civil jurisdictions.
In Qld, the first sign of real change was manifested in the commissioning of a taskforce and subsequent report entitled ‘Beyond these Walls’ (1989) into Domestic and Family Violence in 1988.
In a watershed period for Queensland, the Domestic Violence (Family Protection) Act 1989 (Qld)took effect from 21 August 1989, and subsequent amendments adopted changes within the Family Law Act(Cth)and 2011 Amendment Act (Cth) which requires courts to consider the impact of current or future risks of domestic and family violence on children when determining what is in the best interests of the child, and the recognition of de-facto and same sex relationships; this is contained within the current Domestic and Family Violence Protection Act (Qld).
To ensure compliance with AASW Code of Ethics requirement to provide Culturally competent, safe and sensitive practice (5.1.2), and to model principles that promote client’s autonomy and dignity (AASW Code of Ethics, section A.3) the DVSW is to offer the client and her children a culturally appropriate support person (eg: Aboriginal Elder or Kin), counsellor or another person of the client’s choosing; this is especially important in Communities with a higher proportion of Aboriginal and Torres Strait Islander people such as Rockhampton, as being Indigenous is not necessarily a reflection of harmonious race relations between Kin or Tribes.
As a way to demonstrate culturally safe practice, the Organisation should have a list of the National Native Title Tribunal’s Queensland Native Title Determination Areas (2017) to avoid unwitting racial tensions when considering referrals for Aboriginal and Torres Strait Islander clients.
This principle of Contract Law is increasingly applied to Organisations within Human Services within the context of client service delivery, as the sector becomes increasingly businesslike (Fitzgerald et al.2014 p.513). Many Organisations have contractual arrangements with Local, State and Commonwealth Governments, and funding is tied to service outcomes or key performance indicators (KPI’s) are met; inherent within these contracts is an expectation that the Organisation and Worker will uphold the policies, procedures and legal requirements of the contract.
Within this requirement, informed written consent must be given by the client for the Organisation to proceed with provision of services afterthe client has been made aware of their rights relating to management of their personal information, especially the release of sensitive client information.
In accordance with the Australian Privacy Principles (APPs) detailed in Schedule 1 of the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) the Organisation and Worker must comply with legal, ethical and procedural requirements regarding the collection (APPs 3,4,5,10,12 and 13), storage (APP 11), recording (APP 10) and release (APP 5,6,7,8,9) of client information, including legally mandated access (eg: court processes) which does not require client authorisation (APP 6), and the mandatory requirement under the Child Protection Act 1999 (Qld) for the DVSW to report reasonable suspicion of significant harm due to physical or sexual abuse.
Section 5 (d) the Domestic Violence and Protection Act (Qld) highlights that Aboriginal and Torres Strait Islanders may be particularly vulnerable to domestic violence, and the response to the domestic violence should take this into account. Additionally, the ‘Not Now, Not Ever’ Domestic and Family Violence Taskforce Report (2015) correlates with the Act, and goes further by listing children as being at ‘significantly higher risk from the incidences and impacts of domestic and family violence’.
With this in mind, and to assist in the facilitation of a more expeditious response to DFV for vulnerable people, s8 (4) of the Act states ‘to remove any doubt, it is declared that, for behaviour mentioned in subsection (2) that may constitute a criminal offence, a court may make an order under this Act on the basis that the behaviour is domestic violence even if the behaviour is not proven beyond a reasonable doubt’.
The role of the DVSW serves as a critical nexus between the client, the Queensland Police Service (QPS) and the Legal system in cases of DFV, as there are provisions within the Act for orders to be made to prevent domestic violence (s23) and which includes a temporary protection order (s23)(3), which serves to provide immediate protection for the victim (s24)(1) (‘the aggrieved’), and, of particular significance with Aboriginal and Torres Strait Islanders whereby Kinship Care is more common, is an order made under s24 (1)(a,b,c) to provide a temporary protection order for (a) a child of the aggrieved, (b) a child who usually lives with the aggrieved, (c) a relative of the aggrieved and (d) an associate of the aggrieved.
In some instances QPS apply for an urgent temporary protection order, grounds for which are within s129 of the Domestic and Family Violence Prevention Act (Qld) and includes (1)(b) the police officer reasonably believes that the application for the protection order will not be decided sufficiently quickly by a court to protect the aggrieved from domestic violence and (1)(c) the police officer reasonably believes that a temporary protection order is necessary or desirable to protect the aggrieved from domestic violence.
As highlighted within the ‘Not Now, Not Ever’ Taskforce Report (2015) despite there being about 180 incidences of DFV reported every day in Qld, the Taskforce heard many stories where the ‘workings of the law and justice system (police and courts) only served to further victimise or marginalise
victims’, before going on to implore ‘training and specialised practice materials must be developed and made available to police and judicial officers, as well as frontline service delivery providers.’
The aforementioned observations regarding police training should extend to having a thorough working knowledge of key components of s25 ‘who can apply for a protection order’ and Part 4 of the Domestic and Family Violence Protection Act (Qld) ‘Police functions and powers’ as failure by QPS to investigate reasonable suspicion of DFV as per s100 (1) or failure to issue a protection notice to the respondent under s102 (1) which requires ‘before issuing a police protection notice, the police officer must obtain the approval of a supervising police officer’ may result in the matter being dismissed in court on a basic legal technicality, or if not investigated under s100 the DFV may be perceived as not being ‘serious enough’ to warrant granting a protection order.
The DVSW is not expected to know civil and criminal law provisions with specificity, however it is important to make the client aware of what to expect when legal processes are commenced; an important way for the Organisation and Worker to maintain ethical and legal compliance is to arrange urgent referral for the client to Rockhampton’s Aboriginal and Torres Strait Islander Legal Service. In preparation, the DVSW can provide support by checking and collating identification documents, sourcing an Income Statement if in receipt of Centrelink benefits, and completing the application for Legal Aid with the client.
In the immediate period following DFV, the role of the DVSW is critical in sourcing suitable emergency housing for the client and her children, as is a working knowledge of applicable sections of the Residential Tenancies and Rooming Act 2008 (Qld).
In the case of providing assistance to the client experiencing DFV, Chapter 5, ‘Ending of residential tenancy agreements’ specifies grounds on which residential tenancies can be ended: s277 (5)(a) if a tribunal makes an order terminating the agreement and s308 Notice of intention to leave without ground (1) which states ‘The tenant may give notice of intention to leave the premises to the lessor without stating a ground for the notice.’
In this situation, the DVSW can provide assistance to the client to expedite a ‘Notice of intention to leave’ (Form 13) on the grounds of Non-liveability, which allows for the client to vacate the premises on the same day the Form 13 is submitted. Similarly, the DVSW can advocate for the client should a Form 13 be challenged by the lessor in the Queensland Civil and Administrative Tribunal (QCAT).
Additionally, to streamline processes for victims of DFV, s139 and s140 of the Domestic and Family Violence Protection Act (Qld) provide for Magistrates to hear and make orders pursuant to the Residential Tenancies and Rooming Act (Qld) which relate to the commencement and cessation of tenancies, thus assisting the need for the client to be confronted with simultaneous arbitration.
In most cases, the client and children will need to return to their domiciled location to retrieve personal belongings; in recognition of this as another form of psychological safety for victims, s59 of the Domestic and Family Violence Protection Act (Qld) provides for courts to (1)(b) allow the aggrieved access to stated personal property.
In situations such as this, whereby there may be some risk to client safety should they return home, the Organisation must consider its Primary Duty of Care obligations to the Worker under s19 (2) the Work, Health and Safety Act Qld (2011), which requires that ‘a person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the business or undertaking.’
Another example of harm minimisation for victims of DFV is noted in s42 of the Domestic and Family Violence Protection Act (Qld) whereby if the respondent (civil court) is convicted of a domestic violence offence (criminal court), s42(2) provides that the court may, on its own initiative, make a protection order against the offender if the court is satisfied that, under section 37, a protection order could be made against the offender.
Similarly, to reduce the impact of DFV and subsequent proceedings on children in considering the best interests of the child as per s61DA of the Family Law Act 1975 (Cth), there is provision in s43 (2) of the Domestic and Family Violence Protection Act (Qld)for the Children’s Court to make a protection order against a parent of a child for whom an order is sought in the child protection proceeding if (b) the person who would be named as the aggrieved in the protection order is also a parent of a child for whom an order is sought in the child protection proceeding.’
The Child Protection Act 1999 (Qld) is of paramount consideration in matters relating to Protection Orders, as the court, in considering the best interest of the child, must determine if the child is in need of protection; this is determined by assessing if the child ‘has suffered, is suffering, or is at unacceptable risk of suffering significant harm’.
The jurisdictional relationship between domestic violence orders (civil) and family law orders (civil) provides greater protection for children who may be subject to family law orders (eg: parenting orders). s78 (1)(a)(b) of the Domestic and Family Violence Protection Act (Qld) requires the court to have regard to any family law order of which the court has been informed and if the family law order allows contact between a respondent and a child that may be restricted under the proposed domestic violence order…to revive, vary, discharge or suspend the family law order’.
Whilst significant progress has been made in Qld and Australia to identify, destigmatise and reduce the likelihood and rate of DFV through increased legislative powers across a multitude of interfaces, there is still much work to be done to ensure that the ‘Not Now, Not Ever’ DFV Taskforce Report and its 140 recommendations are not just widely adopted and noted in Qld Parliament, but are implemented, upheld and reviewed to keep the DFV Taskforce’s objective to ‘Put an end to Domestic and Family Violence in Qld’ an aspirational yet achievable goal.
- AASW Code of Ethics (2010)
- Beyond these Walls (1989) Queensland. Domestic Violence Task Force & Matchett, Ruth & Queensland. Department of Family Services 1988, Beyond these walls : report of the Queensland Domestic Violence Task Force to the Honourable Peter McKechnie … Minister for Family Services and Welfare Housing, Dept. of Family Services, Brisbane
- Child Protection Act 1999 (Qld)
- Domestic and Family Violence Protection Act 2012 (Qld)
- Family Law Act 1975 (Cth)
- Family Law (Amendment Act) 2011 (Cth)
- Kennedy, Richards, Leiman (2016), Integrating Human Service Law, Ethics and Practice,4th Ed. Oxford University Press, Melbourne, VIC
- Not Now, Not Ever (2015) Putting an end to Domestic and Family Violence in Queensland,
- https://www.csyw.qld.gov.au/resources/campaign/end-violence/about/special-taskforce/dfv-report-vol-one.pdf; accessed 13 October 2019
- Privacy Amendment (Enhancing Privacy Protection) Act 2012
- Residential Tenancies and Rooming Act 2008 (Qld)
- Work, Health and Safety Act 2011 (Qld)
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