10.11.2010
10.63 Victims of family violence have an obvious interest in knowing when a person who has used family violence against them is released on bail, and in understanding the conditions of bail and how those conditions might interact with any relevant protection order.
10.64 This interest has been recognised as a right in most state and territory victim-focused legislation, though the obligation to provide information only arises if the victim requests the information.
10.65 The charter of rights for victims of crime in section 6 of the Victims Rights Act 1996 (NSW) provides:
A victim should be informed about any special bail conditions imposed on the accused that are designed to protect the victim or the victim’s family.
10.66 Under the Victims of Crime Assistance Act 2009 (Qld), if asked by a victim, an investigatory agency must, so far as is reasonably practicable, advise the victim of the outcome of an application for bail and—if the charged person is released on bail or otherwise before the proceeding on the charge is finished—the arrangements made for the release, including any condition and any application for variation of the condition that may affect the victim’s safety or welfare.[84]
10.67 The Victims’ Charter Act 2006 (Vic) provides that a prosecuting agency, on request by a victim, is to ensure that the victim is informed of bail decisions and, if bail is granted, any conditions imposed to protect the victim or family members of the victim.[85]
10.68 The ‘Guidelines as to how victims should be treated’ in the Victims of Crime Act 1994 (WA) provides that a ‘victim who has so requested should be kept informed about’ among other things, ‘any bail application made by the offender’.[86]
10.69 The Victims of Crime Act 2001 (SA) provides that victims should be informed, on request, about the outcome of a bail application made by the alleged offender.[87] Also, if a police officer or a person representing the Crown in bail proceedings is made aware that the victim feels a need for protection from the alleged offender, ‘reasonable efforts must be made to notify the victim of the outcome of the bail proceedings and, in particular, any condition imposed to protect the victim from the alleged offender (unless the victim indicates that he or she does not wish to be so informed)’.[88]
10.70 The Northern Territory Charter for Victims of Crime provides that at the victim’s request, the police and/or the Office of the Director of Public Prosecutions ‘can’ tell the victim about, among other things, ‘whether or not bail has been granted and any bail conditions relating to protecting [the victim] from the accused’.[89]
10.71 Tasmania does not appear to have a charter of victims rights. There is a Victims Register—‘an automated database that enables Victims Support Services to provide information to victims of crime about the offender’—but it is not clear whether information is provided about bail decisions and variations to bail conditions.[90]
10.72 Although the Victims of Crime Act 1994 (ACT) does not specifically mention bail, it provides that one of the principles that should govern the treatment of victims is that ‘a victim who is known to have expressed concern about the need for protection from an offender should be told about the offender’s impending release from custody’.[91] The Bail Act 1992 (ACT), however, provides specifically for victims of domestic violence. If bail is granted to someone accused of a domestic violence offence, ‘the officer must take reasonable steps to tell each protected person, as soon as practicable, about the decision and, if the accused person is granted bail subject to a bail condition, about the condition’. Protected persons must also be told about decisions not to grant bail.[92]
10.73 A participant in the ALRC’s Family Violence Online Forum expressed concerns that bail decisions were not, in practice, always communicated.
In [the ACT] the police are not involved in the application for a protection order so the victim is conducting that proceeding herself. Often she is not aware of the status of the bail conditions and whether, for example, they are different, even contradictory, to the provisions of the protection order. It is often up to the victim to contact the police to find out what is happening with the criminal proceedings. She may not be aware that bail conditions have been changed, for example, or have any information about the timeline of the criminal matter.[93]
10.74 In Victoria, in addition to the obligation imposed by the Victims’ Charter Act 2006, where the respondent to an application for a family violence intervention order is arrested under a warrant (as a person may be in some circumstances if a magistrate or registrar believes it is necessary), the affected family members must be advised of the outcome of the application for bail and, if bail is granted, of any conditions imposed that are intended to protect the family member.[94] The family member must also be given a copy of the undertaking of bail.[95] But this does not apply to victims of crimes that occurred in a family violence context where the offender is not a respondent to an application for a family violence intervention order.
Submissions and consultations
10.75 In the Consultation Paper, the Commissions asked how often victims of family violence involved in protection order proceedings were not informed about a decision to release the offender on bail and the conditions of release.[96]
10.76 Stakeholder responses to this question varied, perhaps because, as some submitted, practices vary—they vary ‘among police and between courts’[97] and ‘from state to state’.[98] Some said victims were often or commonly not told;[99] another stakeholder said uninformed victims were ‘a significant group’.[100] One agency submitted that victims were ‘quite often’ not informed and the whole protection order process was ‘quite shambolic’.[101] Integrated systems, such as that in Tasmania, another stakeholder said, address this problem more effectively.[102]
10.77 It was submitted that in NSW victims were informed ‘more often than not’[103] and that only a ‘minority’ were not informed.[104] Women’s Legal Service NSW noted, however, that most victims know the offender has been released, but do not understand the conditions.[105] It was also submitted that victims commonly do not have a copy of the bail conditions, and so find it difficult to get police to act on breaches of bail.[106]
10.78 The Victorian Government suggested that its legislation covered this proposal and was supported by police operational procedures and codes of practice. It noted, however, that bail notification, and communication between criminal justice agencies about bail outcomes and conditions, could be enhanced.[107] The Aboriginal Family Violence Prevention and Legal Service Victoria also submitted that police communication with victims is generally poor and women complain they cannot reach particular police officers.[108] It is also often difficult for offenders to find out about the progress of their applications for a protection order.[109]
10.79 The Magistrates’ Court and Children’s Court of Victoria also suggested that perhaps police or courts should be required to notify victims of family violence and sexual assault of every bail decision that affects their personal safety—whether arising from criminal charges, the contravention of protection orders, or from family violence protection application warrants—rather than only in the circumstances set out in s 52 of the Victorian family violence legislation.[110]
10.80 One NT solicitor was told she could not have a copy of the bail conditions for her client, but she could have them read to her over the phone.[111] Another person submitted that ‘Corrections have privacy regulations whereby they cannot even inform the solicitor for the protected person about the release of the prisoner’.[112]
10.81 The Office of the Director of Public Prosecutions NSW (NSW ODPP) submitted that its officers are instructed to inform victims about bail conditions as soon as practicable after the bail application,[113] but their efforts are often frustrated by practical impediments, such as
not having the contact details of the victim and being unable to contact the police informant to contact the victim, little or no prior notice about the bail application and having one prosecutor in court who is unable to leave the bar table to make a phone call.[114]
10.82 Courts should therefore allow sufficient time for the prosecution to make contact with the victim, the NSW ODPP submitted.[115] Women’s Legal Services Australia pointed out another practical impediment:
Whilst there are various victim registries that seek to inform victims about details such as parole board hearings and offender release dates, often there are certain requirements and/or forms that need to be completed.[116]
10.83 In the Consultation Paper, the Commissions also proposed the following:
State and territory legislation, to the extent that it does not already do so, should impose an obligation on the police and prosecution to inform the victim of a family violence offence of: (a) decisions to grant or refuse bail to the offender; and (b) where bail is granted, the conditions of release. The Bail Act 1992 (ACT) provides an instructive model in this regard. Police codes of practice or operating procedures and prosecutorial guidelines or policies as well as appropriate education and training programs should also address the obligation to inform victims of family violence of bail decisions.[117]
10.84 This proposal was widely supported: legislation should provide that victims are informed[118] and this should be supported in police and prosecutorial codes and policies, guidelines, education and training.[119] Victims should also be told when bail conditions are varied.[120]
10.85 The importance of informing victims of family violence of bail decisions was widely recognised.[121] As the Victorian Government noted, ‘when a victim of family violence is confronted by a perpetrator she believes to be in jail, this can be a traumatic and dangerous experience’.[122] Victims need to know about bail decisions as soon as possible so they can plan to secure their safety and the safety of their children.[123] When they do not know, ‘they feel there is no reason to be vigilant’.[124]
10.86 The Commissioner for Victims’ Rights (South Australia) submitted that ‘copies of the bail agreement should be readily and freely available to the victim, school staff and so on. This should be an exception from any human rights or privacy provision’.[125]
10.87 Some stakeholders considered how victims might be informed. One stakeholder submitted that domestic violence liaison officers who have developed a rapport with the victims should contact the victim directly.[126] An Indigenous women’s domestic and family violence service noted that some victims ‘are very mobile and often do not have access to phones’ and therefore:
Any arrangements should allow that where the victim is a client of an organisation, such as NPY Women’s Council, that service should be informed so that they can pass the information onto the client.[127]
10.88 This service also submitted that police in some jurisdictions will provide them with relevant bail conditions under memorandums of understanding, but often the caseworker will need to know the accused has applied for bail.[128]
Commissions’ views
10.89 Victims of family violence must be informed of decisions about bail. Knowing about and understanding bail decisions might be vital to their safety and peace of mind. The Commissions recommend that this legislative obligation to notify victims be extended to Tasmania and the NT.
10.90 As noted above, there is a legislative obligation to notify victims of crime—which would include victims of family violence crimes—about bail decisions in most state and territory victims of crime legislation. The Commissions recognise the importance of informing all victims of crime about bail decisions, if they choose to be informed, and the Commissions see no reason to distinguish between victims here. Crimes that do not occur in a family violence context are outside the terms of reference for this report, but the Commissions note that one way of implementing this recommendation would be for Tasmania and the NT to adopt victims of crime legislation that contains a duty to inform all victims about bail decisions. But the Commissions do not wish to be prescriptive, and these jurisdictions might prefer to place this obligation elsewhere, such as in family violence legislation.
10.91 Victims of crime legislation usually gives victims the right to information about bail decisions only when they ask for the information. This assumes victims will know to ask—and they might not, particularly victims from marginalised groups. In the Commissions’ view, therefore, state and territory legislation should provide that victims of family violence must be notified promptly—or at least asked whether they wish to be notified—about bail decisions concerning persons who have used family violence against them.
10.92 The Commissions also recommend that the legislation be clarified to make it clear that victims should be told promptly about the conditions attached to bail—including when the conditions are varied or revoked. This should be implied by a broad obligation to inform victims about bail decisions, but the matter could be made explicit, to avoid any doubt.
10.93 Victims should also be given or sent a copy of the bail conditions. Victims might keep their copy of the bail conditions for future reference. A copy should also be sent to any service provider, such as a domestic violence advocacy or legal service, with whom the victim is known to have regular contact.
10.94 Any such statutory obligation to inform victims of bail decisions will need to be implemented. Police codes of conduct or operating procedures and prosecutorial guidelines or policies should reflect this obligation, as should police training and education. Where there are both bail conditions and a protection order, the obligation should extend to explaining how they interact.
Recommendation 10–3 State and territory legislation should impose an obligation on police and prosecutors to inform victims of family violence promptly of:
- decisions to grant or refuse bail; and
- the conditions of release, where bail is granted.
Victims should also be given or sent a copy of the bail conditions. Where there are bail conditions and a protection order, police and prosecutors should explain how they interact.
Police codes of practice or operating procedures, prosecutorial guidelines or policies, and education and training programs should reflect these obligations. These should also note when it would be appropriate to send bail conditions to family violence legal and service providers with whom a victim is known to have regular contact.
[84]Victims of Crime Assistance Act 2009 (Qld) s 11.
[85]Victims’ Charter Act 2006 (Vic) s 10.
[86]Victims of Crime Act 1994 (WA) sch 1.
[87]Victims of Crime Act 2001 (SA) s 8.
[88] Ibid s 7.
[89] Northern Territory Office of the Director of Public Prosecutions, Charter for Victims of Crime for the Northern Territory, Government Printer of the Northern Territory.
[90] Department of Justice (Tas), Victims Support Services, <www.justice.tas.gov.au/victims> at 15 September 2010.
[91]Victims of Crime Act 1994 (WA) s 4.
[92]Bail Act 1992 (ACT) ss 16(5), (6). See also s 47A.
[93]Comment on ALRC Family Violence Online Forum: Women’s Legal Service Providers.
[94]Family Violence Protection Act 2008 (Vic) ss 50, 52.
[95] Ibid s 52(2).
[96] Consultation Paper, Question 5–14.
[97] J Stubbs, Submission FV 186, 25 June 2010.
[98] Australian Domestic and Family Violence Clearinghouse, Submission FV 216, 30 June 2010.
[99] Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010. See also Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.
[100] Women’s Legal Services Australia, Submission FV 225, 6 July 2010.
[101] Justice for Children, Submission FV 148, 24 June 2010. See also Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council Domestic and Family Violence Service, Submission FV 117, 15 June 2010.
[102] Australian Domestic and Family Violence Clearinghouse, Submission FV 216, 30 June 2010.
[103] Legal Aid NSW, Submission FV 219, 1 July 2010.
[104] Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.
[105] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.
[106] J Stubbs, Submission FV 186, 25 June 2010. See also Confidential, Submission FV 164, 25 June 2010.
[107] Victorian Government, Submission FV 120, 15 June 2010.
[108] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010. See also Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.
[109] Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.
[110] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.
[111] Confidential, Submission FV 164, 25 June 2010.
[112] Confidential, Submission FV 198, 25 June 2010.
[113] Office of the Director of Public Prosecutions NSW, Submission FV 158, 25 June 2010.
[114] Ibid.
[115] Ibid.
[116] Women’s Legal Services Australia, Submission FV 225, 6 July 2010.
[117] Consultation Paper, Proposal 5–7.
[118] For example, National Legal Aid, Submission FV 232, 15 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.
[119] For example, Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; Domestic Violence Prevention Council (ACT), Submission FV 124, 18 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.
[120] Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010.
[121] National Legal Aid, Submission FV 232, 15 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.
[122] Victorian Government, Submission FV 120, 15 June 2010.
[123] Domestic Violence Prevention Council (ACT), Submission FV 124, 18 June 2010.
[124] Confidential, Submission FV 78, 2 June 2010.
[125] Commissioner for Victims’ Rights (South Australia), Submission FV 111, 9 June 2010.
[126] Confidential, Submission FV 183, 25 June 2010.
[127] Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council Domestic and Family Violence Service, Submission FV 117, 15 June 2010.
[128] Ibid.