Federal Court. Does use of the word “means” in cl 4(1) of Direction 110 limit the definition of “family violence” to the two types of conduct as described, namely conduct that "coerces or controls a member of the person’s family" or "causes the family member to be fearful"?
Para 4(1) of Direction 110 defined “family violence” as follows:
family violence means 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. Examples of behaviour that may constitute family violence include:
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or
c) stalking; or
d) repeated derogatory taunts; or
e) intentionally damaging or destroying property; or
f) intentionally causing death or injury to an animal; or
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; or
i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
j) unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.
Para 8.1.1(1) of Direction 110 read:
8.1.1 The nature and seriousness of the conduct
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
…
h) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
Para 8.2 of Direction 110 read:
8.2 Family violence committed by the non-citizen
(1) The government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Is the construction of the words of a particular statute binding on a court considering the same words in a different statute?
Question 2: Are the general principles relating to the interpretation of Acts of Parliament equally applicable to the interpretation of subordinate or delegated legislation, such as Direction 110?
Question 3: Does the use of the word “means” in cl 4(1) of Direction 110 limit the definition of “family violence” to the two types of conduct as described, namely conduct that "coerces or controls a member of the person’s family" or "causes the family member to be fearful"? In other words, is the definition of "family violence" exhaustive?
Question 4: Should the Court infer that the Tribunal failed to consider the question of whether the two incidents involving the applicant and his father fell within the definition of "family violence", given the absence of express consideration of this issue, and the fact that "the Tribunal expressed a view as to whether the applicant’s conduct towards his ex-partner would have caused her to be fearful (which is a plain reference to the second limb of the definition in cl 4(1))"?
Question 5: Is the fact that the applicant agreed before the Tribunal that "there were altercations between himself and his father as a result of which the police were called" sufficient to meet the definition of “family violence”, thereby qualifying as an admission?
Question 6: Can it be said that, if the Tribunal made an error in failing to consider the question of whether the two incidents involving the applicant and his father fell within the definition of "family violence", the error was material, because "whether the applicant was found to have committed acts of family violence five times, against two different people, rather than only three times against the one person, his ex-partner, could have impacted upon the weight which the Tribunal ultimately gave"?
Question 7: Although the Tribunal erred in finding that cl 8.2(2)(a) was engaged in relation to the applicant's father, was the error immaterial, as the incidents involving the applicant’s father engaged cl 8.2(2)(b) in any event, despite the lack of findings by the Tribunal on the latter provision? In other words, can it be said that what the Tribunal could have done overcomes what it in fact did?
Question 8: Are the words “re-offended” and “offending” in para 8.1.1(h) of Direction 110 not limited to the commission of a further criminal offence, following a charge and conviction, because when the Direction refers to the commission of a "criminal" offence, that is made plain by the inclusion of the word "criminal"?
Question 9: Was the Tribunal "entitled to form a view different to that of the Sentencing Magistrate based on the materials before it"?
The FCA answered those questions as follows: