Domestic Violence Declaration

New tenancy reforms designed to make it easier for tenants to escape domestic violence came into effect Thursday 28 February 2019. As a result of these changes, medical practitioners could be asked to complete a new form from patients that would allow a tenant to end their tenancy immediately and without penalty if they or their dependent child are in circumstances of domestic violence.

While AMA (NSW) has some reservations about the form, we support its intent and are confident medical professionals will continue to assist people experiencing domestic violence to the best of their ability.

To end their tenancy, the tenant will need to give their landlord or agent a domestic violence termination notice and attach one of the acceptable forms of evidence:

• Certificate of conviction
• Family law injunction
• Provisional, interim or final Domestic Violence Order
• Declaration made by a medical practitioner in the prescribed form

AMA (NSW) acknowledges that medical practitioners are trusted professionals who are in a position to identify and support people experiencing domestic violence.

However, we believe that the list of professionals deemed competent to make a declaration in the prescribed form should not have been limited to medical professionals.

Our concern is that the completion of this certificate by a doctor could unnecessarily complicate providing care and support to a victim of domestic violence.To fill in the form, the medical practitioner will need to assess if, in your professional opinion, the tenant is a victim of domestic violence that occurred during the tenant’s current tenancy.

You are not required to prove that an incident of domestic violence has taken place, nor is it necessary for your patient to have reported alleged abuse to the police.

During consultation with the NSW Fair Trading, AMA (NSW) expressed concerns with the declaration form, which states: “Knowingly providing false or misleading information in connection with this declaration may be an offence under section 105H of the Residential Tenancies Act 2010, for which a maximum penalty of 2 years imprisonment or 100 penalty units, or both, applies.”

NSW Fair Trading responded to our concerns by adding the statement: It is not an offence to make a declaration based on information that you believed to be true at the time of making the declaration.

While we would like a broader protection for declarations made in good faith, we were able to amend the legislation to ensure that proceedings against a person for an offence against section 105H can only be instituted with the approval of the Director of Public Prosecutions (section 202(1A)).

The certificate also requires the naming of the perpetrator. We understand that some members may have concerns about naming a perpetrator, including that disclosing the name of the alleged perpetrator could breach privacy collection provisions and not fall within the exemption for doing so.

NSW Fair Trading have listened to our concerns and are committed to working through these issues. They have sought clarification with the Office of the Australian Information Commissioner and the NSW Information Privacy Commissioner.

Upon further consultation with Fair Trading NSW, the government agency suggests there is an understanding that the right to privacy is not absolute, and that both Federal and NSW privacy laws recognise this and include provisions that allow entities to collect, use and disclose personal information (including health information), without consent if circumstances warrant it.

Whilst Fair Trading NSW cannot provide legal advice, it suggests there are grounds for medical practitioners to collect and disclose a perpetrator’s name (without their consent) in order to complete the declaration form.