13.1 This and the following chapter consider whether there should be an expanded role for the criminal law in recognising family violence. This chapter considers the recognition of family violence in criminal offences and sentencing. Chapter 14 considers the recognition of family violence in defences to homicide where a victim of family violence kills the person who was violent towards him or her. It also considers the recognition of categories of family relationships for the purposes of criminal laws[1]—for example where a family relationship between the offender and the victim is prescribed as an element of a criminal offence or defence, or as a sentencing factor.

13.2 The underlying issue in Chapters 13 and 14 is the way in which the criminal law accounts for the nature and dynamics of family violence. Criminal laws are traditionally perceived as ‘incident-based’, in that they are focused upon discrete acts forming the basis of individual offences.[2] As identified in Chapter 5, family violence is characterised by patterns of controlling, coercive or dominating behaviour and may include both physical and non-physical violence.

13.3 The Commissions consider these issues in light of the direction in the Terms of Reference to consider what, if any, improvements can be made to the current criminal law framework to protect victims of family violence, and in particular, women and children. This Inquiry presents the Commissions with a unique opportunity to explore ways in which legal frameworks can be improved in order to better protect victims of family violence—even where no issues arise from the practical interaction of family violence laws with the criminal law. In the Commissions’ view, a broad interpretation of the Terms of Reference calls for an assessment of how well the criminal justice system deals with family violence. A key consideration in undertaking this assessment is the Commissions’ guiding principle of fairness. That is, ensuring that legal responses to family violence are fair and just—holding those who use family violence accountable for their actions, providing protection to victims and ensuring that accused persons are treated in accordance with Australia’s human rights obligations.[3]

13.4 Criminal law responses are not, however, a stand-alone solution to family violence. The Commissions acknowledge that there is a more general issue about whether escalating a penal response to family violence is the best or only way for society to mark its condemnation of what is clearly abhorrent behaviour. The Commissions have heard that, in some cases, a blunt penal response can escalate violent behaviour and fail to address its causes. Such an approach can also have particularly adverse impacts upon Indigenous peoples.[4] Consistent with the Commissions’ guiding principle of seamlessness, the measures considered in this chapter and Chapter 14 are intended to form part of an integrated response to family violence, which focuses on prevention as well as punishment.

13.5 The Commissions recognise that several state and territory governments have given considerable attention to some of the issues addressed in this and the following chapter. Some matters have been the subject of dedicated reviews and consequent legislative reforms.[5] In some cases, jurisdictions have taken divergent approaches to certain issues. Some differences appear to reflect jurisdiction-specific policy positions on matters extending beyond family violence. In acknowledging these matters, the Commissions have approached this chapter and Chapter 14 from the perspective of facilitating the continuous improvement of criminal law responses to family violence.

[1] Chapter 7 considers the categories of family relationships recognised for the purposes of identifying persons in need of protection under state and territory family violence legislation.

[2] However, as noted below, there is precedent in some offence provisions for the recognition of courses of conduct in respect of certain criminal behaviour.

[3] See, eg, International Covenant on Civil and Political Rights, 16 December 1966, [1980] ATS 23, (entered into force generally on 23 March 1976), arts 14 and 26. See further Ch 2.

[4] See, eg, Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [29.40]–[29.73].

[5] For example, numerous reports and reviews in the last few decades have considered the issue of defences to homicide in cases involving family violence. These are considered in Ch 14.