ALRC submission to Senate inquiry regarding the Domestic and Family Violence Protection and Another Act Amendment Bill 2015

Committee Chair
Ms Leanne Donaldson MP
Communities, Disability Services and Domestic and Family Violence Prevention Committee
Parliament House
George Street
Brisbane Qld  4000

6 November 2015

Dear Ms Donaldson,

Domestic and Family Violence Protection and Another Act Amendment Bill  2015

The Australian Law Reform Commission (ALRC) welcomes the opportunity to make a submission to the Communities, Disability Services and Domestic and Family Violence Prevention Committee regarding the Domestic and Family Violence Protection and Another Act Amendment Bill 2015.

In recent years, the ALRC has undertaken significant work in the area of family violence at the request of the Commonwealth Attorney-General and the then Standing Committee of Attorneys General that may be of assistance to the Committee in reviewing the proposed Bill. In 2010, the ALRC released the first of its reports into family violence which it undertook with the NSW Law Reform Commission, Family Violence—A National Legal Response (ALRC Report 114) and the second report, Family Violence and Commonwealth laws—Improving Legal Frameworks (ALRC Report 117) was completed in November of 2011. These two reports received widespread support from stakeholders and contain a significant number of recommendations for changes to Commonwealth and State laws, many of which have been, or are in the process of being, implemented. The ALRC believes these law reform recommendations, if implemented, will significantly improve the legal response to family violence. Information about implementation can be found on the ALRC website. I recommend the analysis and discussion in these reports to the Committee.

In terms of the Bill which is the subject of the Committee’s inquiry, the first Report, Family Violence—A National Legal Response, will be of most relevance. It represents an 18 month long inquiry during which the Commissions conducted 236 consultations nationally and received 240 submissions from a wide range of people and agencies around the country. In particular, the recommendations that the ALRC made in Chapter 5—A Common Interpretative Framework, Chapter 9—Police and Family Violence, Chapter 11—Protection Orders and the Criminal Law and Chapter 18—Evidence of Family Violence may provide some useful information to the Committee. 

The ALRC’s recommendations can be viewed from two distinct perspectives—a systems perspective, and a participant perspective, and were focused on improving both legal frameworks and improving practice.

The ALRC submitted that the improvement of legal frameworks would be achieved through:

  • a common interpretative framework, core guiding principles and objects, and a better and shared understanding of the meaning, nature and dynamics of family violence that may permeate through the various laws involved when issues of family violence arise;
  • corresponding jurisdictions, so that those who experience family violence may obtain a reasonably full set of responses, at least on an interim basis, at whatever point in the system they enter, within the constraints of the division of power under the Australian Constitution;
  • improved quality and use of evidence; and
  • better interpretation or application of sexual assault laws.

The improvement of practice would be achieved through:

  • specialisation—bringing together, as far as possible, a wide set of jurisdictions to deal with most issues relating to family violence in one place, by specialised magistrates supported by a range of specialised legal and other services;
  • education and training;
  • the development of a national family violence bench book;
  • the development of more integrated responses;
  • information sharing and better coordination overall, so that the practice in responding to family violence will become less fragmented; and

Objective of the Bill

1. Recommendation 99

The Committee has been asked to comment on Recommendation 99: If it is aware of cross applications, a court should be required to hear the cross applications together and determine the person most in need of protection, unless it is necessary to deal with the applications separately, in the interests of the safety, protection and wellbeing of an aggrieved.

During its first inquiry, the ALRC particularly focussed on issues of definition, identification and responses to improve both the identification of family violence and the safety and well-being of victims of family violence. Recognising family violence and understanding the dynamics of violent relationships or behaviour, goes to the heart of being able to identify who is ‘the person most in need of protection’. The ALRC made a number of recommendations that went to developing a common interpretative framework, core guiding principles and objects, and a better and shared understanding of the meaning, nature and dynamics of family violence. The ALRC submits that having a common interpretive framework and definition for family violence, spelt out clearly in legislation, will enable courts to better identify who is at greatest risk.

Recommendation 5–1           State and territory family violence legislation should provide that family violence is violent or threatening behaviour, or any other form of behaviour, that coerces or controls a family member or causes that family member to be fearful. Such behaviour may include but is not limited to:

(a)     physical violence;

(b)     sexual assault and other sexually abusive behaviour;

(c)     economic abuse;

(d)     emotional or psychological abuse;

(e)     stalking;

(f)     kidnapping or deprivation of liberty;

(g)     damage to property, irrespective of whether the victim owns the property;

(h)     causing injury or death to an animal irrespective of whether the victim owns the animal; and

(i)     behaviour by the person using violence that causes a child to be exposed to the effects of behaviour referred to in (a)–(h) above.

Another recommendation goes to police training and their ability to identify who is at greatest risk and in need of protection. ALRC Recommendation 9–5 states that police should be trained to better identify persons who have used family violence and persons who need to be protected from family violence, and to distinguish one from the other. Guidance should also be included in police codes of practice and guidelines.

With regards to cross applications, the ALRC’s Chapter 18 makes several recommendations. While cross applications can be made for legitimate reasons, the concerns expressed by stakeholders to the ALRC about the misuse of cross applications suggested that some reforms were required. The Commissions considered that safeguards were necessary to prevent the misuse of cross applications for protection orders where cross applications were made for tactical reasons—for example, to pressure the original applicant into withdrawing that application, to agree to mutual protection orders, or to affect family law proceedings.

The Commissions agreed with the approach recommended by the Victorian LRC to place restrictions on making mutual protection orders by consent, requiring cross applications to be considered by a court, and that mutual protection orders be made only where the court is satisfied that there are sufficient grounds for making a protection order against each party. This approach would mean that the court considers the claims made in each application separately and on its merits, identifying and responding to the individual requests for protection.

While this recommendation does not directly address the situation where a cross application made without grounds pressures a victim of family violence to withdraw his or her application altogether, the ALRC did consider possible abuse of the legal system in relation to vexatious proceedings.

The ALRC came to a recommendation about mutual protection orders as follows:

Recommendation 18–5         State and territory family violence legislation should provide that:

(a)     mutual protection orders should not be made by consent; and

(b)     a court may only make mutual protection orders where it is satisfied that there are grounds for making a protection order against each party.

2. Recommendation 117

The Committee has asked for comments on Recommendation 117: a court should consider the imposition of an ouster condition to remove a perpetrator from the family home when making a protection order, taking into account the wishes of the aggrieved. Chapters 9 and 11 of Family Violence—A National Legal Response contain discussion and recommendations concerning exclusion orders.

Chapter 11 of the report goes into detail about protection orders and exclusion orders. Provisions empowering courts in criminal matters to make protection orders on their own initiative at any stage of a criminal proceeding are an extremely important way of alleviating the need for a victim—already involved in criminal proceedings as a witness—to apply for a protection order, and potentially to give further evidence. The Commissions came to the view that a court should be able to make such orders of its own initiative where it considers it is appropriate to do so to protect a victim. The family violence legislation of each state and territory should contain an express provision empowering courts in this way.

In empowering courts in this way, the Commissions considered that it is also important to address legitimate concerns expressed about denying justice to an accused in a criminal proceeding, based on the making of orders on ‘untried facts’ and an entitlement of an accused to a fair trial. In the Commissions’ view, such a concern is addressed in the following ways:

  • requiring any order made by a court on its own initiative prior to a plea or finding of guilt to be of an interim nature;
  • allowing both the victim and the respondent to make submissions to the court as to the appropriateness of an order;
  • clarifying in family violence legislation that the making of a protection order does not affect the criminal liability of a person in respect of conduct the subject of the order;[1] and
  • in particular, clarifying in state and territory legislation that, in the trial of an accused for an offence arising out of conduct that is the same or substantially similar to that upon which a protection order is based, references cannot be made to the making, variation or revocation of a protection order, or the refusal by a court to take any of those actions, in proceedings under family violence legislation, without the leave of the court.[2]

The overall effect of the Commissions’ approach to their recommendations about the making of protection orders in criminal proceedings, and the use of evidence about the making of such orders in the trial of an accused, is to accommodate the systemic objectives of victim protection and ensuring that an accused receives a fair trial.

It is imperative that courts retain discretion as to whether to make a protection order on their own initiative. A court should be able to decide whether an order is necessary to ensure the safety of the victim, and what conditions should be imposed to secure such safety. The attitude of the victim may be one compelling factor to consider, although it may not necessarily be determinative, for example in circumstances where the court has concerns about the victim’s safety despite the victim’s objections to the order.

The Commissions consider that an appropriate complement to their recommendation that courts be empowered to make protection orders in criminal proceedings of their own initiative is a provision empowering prosecutors to seek protection orders where a person pleads guilty or is found guilty of an offence involving family violence.

The combined effect of the Commissions’ recommendations about empowering courts to make protection orders of their own initiative,[3] empowering prosecutors to apply for such orders where a person pleads guilty or is found guilty of an offence,[4] using specialised judicial officers and specialised prosecutors in specialised family violence courts,[5] and providing training to judicial officers, prosecutors and lawyers on the dynamics and features of family violence[6] is to:

  • increase the likelihood that judicial officers and prosecutors involved in family-violence related criminal proceedings focus on the issue of victim safety and protection;
  • lessen the trauma, stress and time involved in a victim having to obtain a protection order in separate civil family violence proceedings in addition to criminal proceedings for family-violence related offences; and
  • increase the likelihood that judicial officers and lawyers will be alert to the need to consider whether to make or apply for a protection order, respectively, in those types of criminal proceedings identified by stakeholders where the broader context of family violence may not necessarily be apparent. These include criminal proceedings against an accused who has:
    • used family violence to coerce the victim into participating in criminal activities—such as providing a false alibi for the offender; or
    • committed an offence against a third person, for example, an assault, with the intention of intimidating the victim.

Recommendation 11–6         State and territory family violence legislation should provide expressly that one of the conditions that may be imposed by a court making a protection order is to prohibit the person against whom the order is made from locating or attempting to locate the victim of family violence.

Recommendation 11–7         Application forms for protection orders in each state and territory should clearly set out the types of conditions that a court may attach to a protection order, allowing for the possibility of tailored conditions. The forms should be drafted to enable applicants to indicate the types of conditions that they seek to be imposed.

Recommendation 11–8         State and territory family violence legislation should require judicial officers making protection orders to consider whether or not to make an exclusion order—that is, an order excluding a person against whom a protection order is made from premises shared with the victim, even if the person has a legal or equitable interest in such premises.

Recommendation 11–9          State and territory family violence legislation should provide that a court should only make an exclusion order when it is necessary to ensure the safety of a victim or affected child. Primary factors relevant to the paramount consideration of safety include the vulnerability of the victim and any affected child having regard to their physical, emotional and psychological needs, and any disability. Secondary factors to be considered include the accommodation needs and options available to the parties, particularly in light of any disability that they may have, and the length of time required for any party to secure alternative accommodation

Recommendation 11–10       State and territory family violence legislation should require a court to give reasons for declining to make an exclusion order where such order has been sought.

The ALRC also made the following recommendation regarding exclusion orders with regards to the police:

Recommendation 9–4                        State and territory family violence legislation should empower police officers, only for the purpose of arranging protection orders, to direct a person who has used family violence to remain at, or go to, a specified place or remain in the company of a specified officer.

3.         Recommendation 129

The Committee has asked for comments with regards to Recommendation 129: to introduce a principle that, to the extent it is appropriate and practicable, the views and wishes of people who fear or experience domestic violence should be sought before a decision is made under the Domestic and Family Violence Protection Act 2012.

During its consultations, the ALRC heard from many stakeholders about the highly charged context in which family violence matters are often brought to the attention of the police and the courts, and that there are many legitimate reasons why it is often difficult for victims of family violence to provide evidence, to speak up, and to express their wishes. Stakeholders set out a range of reasons why people who have experienced family violence may not readily disclose it. A victim of family violence may hide the abuse due to feelings of shame, low self esteem or a sense that he or she, as the victim, is responsible for the violence. A victim may feel that he or she will not be believed. A victim may hope that the violence will stop, or might believe that violence is a normal part of relationships. Because of the family violence, a victim may feel powerless and unable to trust others, or fear further violence if caught disclosing it.

Further, there may be a lack of understanding by courts, service providers and the community of what constitutes family violence. This may mean that, even if family violence is disclosed, it may not be recognised, or acted on, as family violence.

Chapter 18 of the ALRC’s Report considers two interrelated issues: the factors that may inhibit victims from disclosing family violence; and difficulties associated with giving evidence about family violence, particularly when that evidence needs to be considered or repeated in different courts. The ALRC also considers in this chapter a number of outcomes of protection order proceedings which have been identified as particularly problematic when parties are also engaged, or likely to be engaged, in parenting proceedings in federal family courts. These problems occur where protection orders are made by consent; and where a victim of family violence agrees to withdraw an application for a protection order and instead relies on undertakings given by the respondent to the court. This section also considers safeguards against vexatious litigation in protection order proceedings.

Some recommendations which may be of interest to the Committee are as follows:

Recommendation 18–1         State and territory courts should ensure that application forms for protection orders include information about the kinds of conduct that constitute family violence.

Recommendation 18–2         Application forms for protection orders under state and territory family violence legislation should require that applicants swear or affirm a statement incorporated in, or attached to, the application form, setting out the basis of the application. Where the applicant is a police officer, the application form should require the police officer to certify the form.

Recommendation 18–3         State and territory family violence legislation should prohibit the respondent in protection order proceedings from personally cross-examining any person against whom the respondent is alleged to have used family violence.

Recommendation 18–4         State and territory courts should require that undertakings by a person against whom a protection order is sought should be in writing on a standard form. The form should require each party to sign an acknowledgment that he or she understands that:

(a)     breach of an undertaking is not a criminal offence nor can it be otherwise enforced;

(b)     the court’s acceptance of an undertaking does not preclude further action by the applicant to address family violence; and

(c)     evidence of breach of an undertaking may be used in later proceedings.

Finally, the Committee has asked for comments on amendments to the Police powers and Responsibilities Act 2000 to clarify that the use of body-worn cameras by police officers acting in the performance of their duties is lawful. While the ALRC considered the role of police in investigating family violence, issuing and applying for protection orders and also the use of police powers of entry, search, seizure, arrest, direction and detention to investigate family violence and to protect victims, the specific issue of wearing body cameras was not canvassed and therefore the ALRC is not able to comment on this aspect of the Bill.

We hope this submission is of assistance to your Committee. If you require any further information, please do not hesitate to contact the ALRC.

Yours sincerely,

Professor Rosalind Croucher AM

[1]             Rec 11–1.

[2]             Rec 11–2.

[3]             Rec 11–3.

[4]             Rec 11–4.

[5]             Rec 32–3.

[6]             Rec 31–1.