Domestic violence

The ALRC received Terms of Reference for this inquiry on 29 May 1984. The final report (ALRC Report 30, tabled March 1986) examined the issue of domestic violence within the Australian Capital Territory, focusing exclusively on incidents involving adult people who were married or living in a de facto relationship.

Legal institutions’ responses to instances of domestic violence had been criticised on two grounds. First, police were seen as taking a dismissive attitude towards complaints. Second, the sanctions imposed by the courts were seen as ineffective. There was also considerable uncertainty concerning the extent of powers available to law enforcement officers, and the circumstances in which they should be exercised.

However, a legal response to the issue, consisting largely of imposing sanctions on perpetrators, was not sufficient in itself. Consequently, the terms of reference directed the ALRC to investigate domestic violence in its social context.

A draft Bill is included in the report.

Key recommendations

For the purposes of the ALRC’s recommendations, ‘domestic violence’ was defined as violence, whether actual or threatened, committed in the context of a marriage or de facto relationship. Such acts included murder, manslaughter and a number of other offences contained in the Crimes Act 1900 (NSW: ACT).

• A system of orders for victims of domestic violence should be implemented protecting the applicant’s immediate well-being and assets. Criminal sanctions should follow a failure to comply with these orders.
• Where an applicant applying for a firearms licence has been the subject of a domestic violence complaint, the licensing authority should not grant that licence.
• In addition, police officers should be more adequately equipped when responding to domestic violence through a clarification and expansion of police powers in this area.
• Appropriate facilities and training programs should also be introduced enabling police to recognise and address the needs of victims more effectively. 

Implementation

The Domestic Violence Act 1986 (ACT) gave substantial effect to the ALRC’s recommendations. Under section 9 of the Act, the court may make an order restraining the respondent’s conduct or movements, where those actions may harass or intimidate the applicant. In 1990, the Act was amended, extending the operation of the scheme of protection orders beyond that of spouse and de facto spouse.

In 1988, the Domestic Violence Crisis Service was established. This body visits and provides support services to those involved in a domestic violence incident.

In 2002 the Domestic Violence Act 1986 was renamed the Domestic Violence Agencies Act 1986 (ACT).

A number of Australian Capital Territory instruments now specify that where a protection order has been made against a person, that person cannot hold a firearms license.

Continuing Issues

A number of further initiatives consistent with ALRC recommendations were implemented in the 1990s following a reconsideration of domestic violence issues in the Australian Capital Territory Law Reform Committee’s 1995 report Domestic Violence: Criminal Issues Report (No 9). The initiatives included establishment of the Domestic Violence Prevention Council in 1997, the establishment of a successful pilot program in 2000 to train ACT police in responding to domestic violence incidents, improved coordination of ACT services for victims, and the ability for police to arrest perpetrators without summons.

‘Battered Woman Syndrome’ is now debated as a legitimate defence in the sentencing of homicide offenders whose victims are alleged perpetrators of domestic violence. The High Court decision Osland v The Queen (1998) provides the most recent account of Australian law in this matter. It was also considered by the Model Criminal Code Officers’ Committee in its 1998 discussion paper on fatal offences against the person.

On 24 July 2009, the ALRC received Terms of Reference from the Attorney-General of Australia for an Inquiry to address issues concerning violence against women and their children.