In our coverage of the upcoming Coercive Control laws in Queensland we have looked at the new offence generally and taken something of a sweep through the potential aspects of domestic violence (as defined only for the purposes of this particular offence).

One area the legislation is designed to deal with is the idea of economic abuse in a domestic relationship.

Of course, nobody would disagree that abusive financial control is a real and serious issue.

The question we want to ask though, is whether the proposed definitions for “economic abuse” in the context of the Coercive Control offence are appropriately targeted.

So let’s take a look.

A Quick Primer on Coercive Control

Just in case you haven’t read our earlier articles (though we recommend it):

1. Queensland is introducing a new offence called “coercive control” designed to capture incidents of domestic violence that were not necessarily falling neatly into any part of the existing criminal laws.
2. A person commits an offence of “coercive control” if, in a domestic relationship, they engage in a course of conduct against the other person that is “domestic violence” on more than 1 occasion, intend the conduct to coerce or control that person, and would in all the circumstances be reasonably likely to cause harm.
3. There are many things that could be “domestic violence”, one of which is “economic abuse”.

So what is “economic abuse” in these laws?

Economic Abuse within the Coercive Control Laws

For something as important as this, you’d think we would have a definition for “Economic abuse” – and you’d be right. Here it is:

Economic abuse means behaviour by a person … that is coercive, deceptive or unreasonably controls another person…:

• in a way that denies the second person the economic or financial autonomy the second person would have had but for that behaviour; or
• by withholding or threatening to withhold the financial support necessary for meeting the reasonable living expenses of the second person or a child.

The act goes on to provide some unhelpful examples:

Why are these examples unhelpful? It’s because nearly all of them simply label something as “unreasonable” or “coercing” without describing what, exactly, is the unreasonable or coercive part of the example. So the truth is that the examples don’t provide us with any real meat on the bones of the definition itself.

Beyond that, some of the examples are inaccurate. For example, “preventing a person from seeking or keeping employment” is stated as being economic abuse, without any explanation of what the “prevention” entailed and how it met the threshold requirements (below).

Similarly, “unreasonably disposing of property” is said to be economic abuse but does not offer an explanation of the threshold behaviour either. It seems to confuse the “unreasonably controlling” requirement with just a general test of unreasonableness.

The Ambiguous Threshold

The threshold question for “economic abuse” is whether the behaviour in question is:

1. Coercive;
2. Deceptive; or
3. Unreasonably controlling.

None of these things are defined (“coerce” is defined elsewhere, but not for the purposes of this particular issue).

However, to establish that economic abuse has occurred, the behaviour in question must be one of these things.

Deceptive

Deceptive, at least, is moderately easy to identify. If you lie to someone or trick them into doing something based on false pretences, that will be deceptive.

Coercive

But what about coercive? Where is the threshold between coercion and the normal amount of pressure to please your domestic partner? If a wife cries because her husband won’t guarantee her credit card application, and he then relents and does it – has he been coerced?

Various online dictionaries offer some form of definition for “coerce” as something like this:

To persuade someone forcefully to do something that they are unwilling to do

The key elements are:

1. Unwilling; and
2. Force.

However, while there is no actual definition for us, the laws do define “coerce” elsewhere, which gives us an idea what the parliament thought coerce should mean. That definition introduces a new concept: to compel. So it says that to coerce is “compel or force a person to do, or refrain from doing, something”.

It eliminates the “unwilling” component of the dictionary definition, and broadens the nature of the coercion beyond “force” and into “compel”.

Contextually, then, it’s possible that:

1. You can coerce someone using a variety of methods including simple persuasion; and
2. Someone can have been willing to do something, but still have been coerced anyway.

This offers a potential problem that historical events can be re-created as “coercion” even though the allegedly offending party believed they were in a cooperative and voluntary situation.

Unreasonably Controlling

If a wife and husband agree that he will manage the finances and provide her with an “allowance” for normal spending, is that “unreasonably controlling”? Is the test of unreasonableness for this definition one based on society’s views or based on the relationship itself?

That is not made particularly clear when looking at economic abuse.

It’s true that later we are offered this defence: “It is a defence for the person to prove that the course of conduct for the coercive control offence was reasonable in the context of the relationship between the person and the other person as a whole”.

However there are two issues with this:

1. It doesn’t affect the definition of “unreasonably controlling” so isn’t immediately helpful for understanding what is meant by that term; and
2. By the time you’re talking about the topic of defences, one person has already been accused of an offence.

What is, or is not, “unreasonably controlling” is unclear.

Denying Economic Autonomy

If we can get past the threshold test above, then the next question is about the outcome of the alleged behaviour. There are two options.

The first is where the behaviour denies the other person financial or economic autonomy that they otherwise would have had, but for the behaviour.

The target here is to prevent situations where a person ends up unable to access their own money, provide for their own needs without “permission” or otherwise becomes completely financially beholden to their partner, leaving them vulnerable in several ways.

And clearly the text achieves that goal.

However, the potential problem is with the use of the undefined word “autonomy”. It could mean a few things:

1. The right of self-determination;
2. Independence;
3. Freedom from external control or influence.

This begs the question: does any person in a domestic relationship enjoy true autonomy?

Most normal domestic relationships involve a significant interaction of finances. Each of the participants provides for an relies on the others, making both independent and joint decisions about financial matters. Their “autonomy” will ebb and flow over time, depending on their situation and that of their partner, children and others within their circle.

With that in mind, it could be that the test of a behaviour denying “financial autonomy” might be too easily met, depending how the Court ultimately interprets the meaning of the phrase.

Removing Support

The second option for economic abuse is made out if the behaviour in question involves withholding (or threatening to) financial support necessary for meeting the “reasonable living expenses” of the other person or a child.

Here, the target behaviour is about the controlling spouse who uses the provision of basic needs and requirements as a tool to require certain behaviours: “You’ll ensure that the house is clean when I get home or I’m not paying for your petrol for a month”.

The question mark over this requirement will probably be about what is, or is not, a “reasonable living expense”.

This, most likely, seems like it is going to be a subjective question based on the living standards of the people in question. What to some is a “reasonable living expense” might be a total extravagance to another.

So… Is it Economic Abuse?

Economic abuse in relationships is a genuine issue that should be addressed.

While the addition of economic abuse as part of the coercive control laws will probably capture the intended behaviours and issues, there is a concern that it goes beyond what is necessary to achieve that goal and could be used in unintended situations that are not genuine cases of domestic violence.

How some of these unclear concepts are ultimately interpreted and used by both Police and the Courts will hopefully offer some clarity.