Current definitions in family violence legislation

5.13 Table A provides a snapshot of variations in the definitions of family violence across the states and territories. The following discussion addresses various aspects of the state and territory definitions. Key differences include the extent to which definitions:

• are linked to criminal offences;
• capture non-physical violence;
• turn on the impact on the victim or the intent of the person committing family violence;^[8] and
• capture abuse experienced by certain groups in the community—such as those from a culturally and linguistically diverse background,^[9] the aged, persons with a disability and persons in same-sex relationships.

Linkage of definitions of family violence to criminal law

Linkage to state and territory criminal law

5.14 A key difference between definitions of family violence in family violence legislation is the extent to which those definitions are directly linked to specific criminal law offences. When family violence is defined by reference to criminal offences, the behaviour that constitutes family violence can form the basis for a protection order as well as a prosecution for a criminal offence, although the latter will require proof beyond reasonable doubt, instead of on the balance of probabilities.^[10]

5.15 NSW family violence legislation does not define family violence. Rather it defines ‘domestic violence offence’ by referring specifically to 55 ‘personal violence’ offences in the Crimes Act 1900 (NSW) where those offences are committed by persons in defined domestic relationships against other persons.^[11] The offences include, for example, murder, manslaughter, wounding or causing grievous bodily harm with intent, assault, sexual assault, kidnapping, child abduction and destroying or damaging property. The list also includes narrower offences such as discharging a firearm with intent, causing bodily injury by gunpowder, not providing a wife with food, and setting traps.

5.16 Some of the ‘personal violence’ offences included in the definition of ‘domestic violence offence’ in the NSW family violence legislation have been repealed.^[12] These historical offences are retained in the definition because such offences can be recorded on a person’s criminal record as ‘domestic violence offences’^[13] and this has a number of important consequences.^[14]

5.17 The NSW family violence legislation also provides that stalking, intimidation with intent to cause fear of physical or mental harm, and attempts to commit any specified offence can amount to ‘domestic violence’.^[15]

5.18 The ACT family violence legislation sets out a general definition of ‘domestic violence’ which covers, for example, any conduct that causes physical or personal injury to a relevant person, or is harassing or offensive. The definition also provides that a ‘domestic violence offence’ is an offence against scheduled legislative provisions.^[16] The scheduled offences cover a broad range of conduct. They include offences traditionally recognised as including forms of family violence, such as assault and wounding, as well as offences that are less obviously related to family violence—such as causing bushfires, arson, trespass on government premises, and refusing or neglecting to leave government premises when directed.^[17] Some of the scheduled offences recognised in the ACT as constituting family violence are not recognised as family violence offences in NSW.^[18]

5.19 Other state and territory definitions of family violence pick up selected definitions of criminal law offences. For example, the Victorian family violence legislation provides that the definition of ‘assault’ is the same as the definition of assault in s 31 of the Crimes Act 1958 (Vic).^[19] Similarly, the Western Australian family violence legislation provides that various definitions, including those of ‘assault’, ‘intimidate’, ‘kidnapping or depriving the person of his or her liberty’ and ‘pursue’ are the same as the equivalent definitions in the Criminal Code (WA).^[20]

5.20 In contrast to the approach of the NSW family violence legislation, other state and territory definitions largely describe conduct that constitutes family violence without linking that conduct to specific criminal offences or, where that conduct could constitute an offence, without defining the conduct or attempting to align the definitions with those used in the criminal law. While in these cases there may be an overlap between conduct constituting family violence for the purpose of obtaining a protection order and the conduct forming the basis for a criminal prosecution, the scope of the definition for the purposes of the protection order may be somewhat unclear. Specific examples of non-alignment of definitions or terminology across family violence legislation and the criminal law are discussed in Chapter 6.

5.21 In other cases, the conduct described as falling within the definition of family violence may not amount to a criminal offence—for example, emotional abuse—but may provide grounds for the making of a civil family violence protection order.^[21] The Victorian legislation, for example, explicitly provides that ‘to remove doubt it is declared that behaviour may constitute family violence even if behaviour would not constitute a criminal offence’.^[22]

Linkage to federal criminal law

5.22 To the extent that family violence legislation links the definition of family violence to specific state or territory criminal offences—in the absence of a broader definition of family violence, as is the case in NSW—it leaves no scope for the definition to capture conduct potentially falling within the ambit of federal offences.

5.23 There are, however, a number of federal offences which could potentially fall within the ambit of family violence and give rise to a protection order. For example, conduct such as threatening behaviour or harassment that can form the basis for a protection order can also fall within the ambit of the following federal offences:

• using a carriage service to make a threat;^[23]
• using a carriage service to menace, harass or cause offence;^[24]
• using a postal or similar service to make a threat;^[25] and
• using a postal or similar service to menace, harass or cause offence.^[26]

5.24 The Local Court of NSW has stated that state and federal laws probably most frequently overlap where a protection order is sought in respect of conduct that amounts to the abovementioned federal offences of using a carriage service to make a threat, or to menace, harass or cause offence.^[27]

5.25 Another area of potential overlap is in relation to conduct constituting economic abuse. For example, coercing a family member to claim a social security payment is recognised as economic abuse amounting to family violence in some jurisdictions.^[28] Such behaviour could also constitute offences under social security legislation as well as the Criminal Code Act 1995 (Cth) relating to fraudulent conduct—such as obtaining a financial advantage by deception or making false or misleading statements in applications. In a submission to this Inquiry, National Legal Aid noted that:

Anecdotally, it is common for victims of family violence to disclose that they have been encouraged by the perpetrator to defraud Centrelink, and that, having done so, the perpetrator subsequently uses the fact of the offence to control them. In other cases, the financial abuse that is suffered by the victim causes them to commit offences of this kind to obtain money to feed the family.^[29]

5.26 A less likely but nonetheless potentially relevant area where a federal offence could occur in a family violence context is sexual servitude, where the person committing the offence is in a defined family relationship with the victim.^[30]

Types of conduct recognised as family violence

5.27 The discussion below gives a snapshot of the various types of conduct that may comprise family violence across the state and territory jurisdictions.^[31]

Sexual assault

5.28 Significantly, not every jurisdiction expressly refers to sexual assault in the definition of family violence—nor did the 1999 Model Domestic Violence Laws.^[32] The Victorian Law Reform Commission (VLRC) recommended that the definition of family violence should include specific references to sexual forms of family violence.^[33] The National Council to Reduce Violence Against Women and their Children also stated that ‘it is important that legislation explicitly acknowledges sexual offences as constituting domestic and family violence’.^[34]

5.29 Where the definition of family violence recognises sexual assault as a form of family violence, the prominence it is given in the definition varies. For example, the general definition of ‘domestic violence’ in s 13 of the Domestic Violence and Protection Orders Act 2008 (ACT) does not refer to sexual assault, although various sexual assault offences are included in sch 1, which lists all ‘domestic violence offences’. In the Northern Territory, sexual assault is cited in the definition as an example of conduct causing harm,^[35] whereas in Tasmania it is cited as a category of conduct in its own right.^[36] In Victoria behaviour that is sexually abusive is captured by the definition of family violence^[37] and, in Queensland, the definition of family violence captures ‘indecent behaviour to the other person without consent’.^[38]

5.30 Part G of this Report deals with sexual assault, and the ‘invisibility’ of sexual assault in family violence cases is discussed in Chapter 24.

Economic abuse

5.31 Only some jurisdictions include ‘economic abuse’ in their definition of family violence—namely Victoria, South Australia, Tasmania and the Northern Territory.

5.32 There are some differences in the precise formulations of economic abuse. It may include, for example:

• unreasonable controlling behaviour without consent that denies a person financial autonomy;
• withholding financial support reasonably necessary for the maintenance of a partner;
• coercing a partner to relinquish control over assets;
• unreasonably preventing a person from taking part in decisions over household expenditure or the disposition of joint property;
• coercing the person to claim social security payments; and
• preventing the person from seeking or keeping employment.^[39]

5.33 There are differences in the extent to which the provisions require a particular intention on the part of the person engaging in economic abuse. Only the Tasmanian provision criminalises economic abuse, requiring that the person committing it has the intention unreasonably to control or intimidate his or her spouse or partner or cause mental harm, apprehension or fear in committing certain acts of economic abuse.^[40]

5.34 Economic abuse is a particular form of violence that has been identified as used against older women. The Australian Domestic and Family Violence Clearinghouse has highlighted the problem of abuse of older women being ‘lost in the cracks’ between the family violence and elder abuse services systems.^[41] It notes the serious under-reporting of violence against older women, noting a greater reluctance of older women to disclose personal matters.^[42] Older women living alone may be more vulnerable to economic abuse by an adult child following the death of a partner.^[43]

Emotional or psychological abuse

5.35 Only some state legislation expressly refers to emotional or psychological abuse as a form of family violence. There are differences in the way these terms are defined—if they are defined at all.^[44] More significantly, only the Tasmanian legislation makes emotional abuse (and intimidation) a criminal offence.^[45] Professors Belinda Fehlberg and Juliet Behrens state that the Tasmanian provisions:

bring criminal law in line with the civil definition by creating new offences that fill the gap between the legal definitions of criminal conduct constituting offences such as assault and the non-physical, control based types of violence. This creation of special domestic violence offences is unique in Australia and was not, for example, proposed in the Model Domestic Violence Laws, nor by the Victorian Law Reform Commission, which focused instead on the grounds for obtaining a civil protection order.^[46]

5.36 A 2008 review of the Tasmanian family violence legislation noted that, as at that time, no charge had been brought for emotional abuse and intimidation but that the ground had been used in support of applications for protection orders.^[47]

5.37 Both the Victorian and South Australian family violence legislation defines emotional or psychological abuse as well as giving examples of such abuse. The Victorian family violence legislation defines emotional or psychological abuse as behaviour that ‘torments, intimidates, harasses or is offensive’.^[48] Examples of such behaviour include racial taunts, threatening to disclose a person’s sexual orientation or to commit suicide, preventing a person from keeping family and cultural connections, and threatening to withhold a person’s medication.^[49] The South Australian family violence legislation defines emotional or psychological harm as including mental illness, nervous shock, and distress, anxiety or fear that is more than trivial.^[50] Examples of such conduct include threatening to institutionalise the person and threatening to withdraw care on which the person is dependent.^[51]

5.38 In contrast, Western Australian family violence legislation includes ‘emotionally abusive conduct’, but neither defines nor gives examples of such conduct.^[52]

5.39 Emotional abuse or intimidation under the Tasmanian legislation is defined as the pursuit of ‘a course of conduct that he or she knows, or ought to know, is likely to have the effect of unreasonably controlling or intimidating, or causing mental harm, apprehension or fear, in his or her spouse’.^[53]

5.40 Other legislation refers to conduct that is intimidating,^[54] harassing^[55] or offensive.^[56] Intimidation is defined variously to include conduct that: causes reasonable apprehension or fear;^[57] a reasonable apprehension of injury^[58] or violence to the person or the person’s property;^[59] has the effect of unreasonably controlling the person or causing mental harm;^[60] causes physical harm;^[61] prevents the person from doing any act that the person is lawfully entitled to do or compels the person to do an act that the person is legally entitled to abstain from;^[62] and conduct that amounts to harassment or molestation.^[63] Intimidation is usually included either as a subcategory of emotional abuse or as a ground of family violence in its own right. Similarly, in some cases harassment and offensive behaviour are treated as subcategories of emotional abuse or of intimidation, while in other cases they form an aspect of family violence in their own right.

Kidnapping or deprivation of liberty

5.41 Most jurisdictions expressly include kidnapping or deprivation of liberty as a form of family violence.^[64] The South Australian family violence legislation includes it as an example of abuse that results in emotional or psychological damage.^[65]

5.42 The family violence legislation of Queensland and the Northern Territory does not include kidnapping or deprivation of liberty in their definitions of family violence. The Australian Government Solicitor (AGS) has expressed the view that kidnapping could constitute intimidation under those legislative schemes.^[66]

Damage to property

5.43 All of the states and territories, except Tasmania, specify damage to property as constituting family violence. The 2008 review of the Tasmanian family violence legislation stated:

Stakeholders did note the absence of property damage within s 7(a) [the definition of family violence]; which was reported to be a common feature of family violence incidents, and at present cannot be pursued under this Act.^[67]

5.44 The Queensland family violence legislation provides that the damage to property must be ‘wilful’.^[68] The Domestic Violence Legislation Working Group remarked that the inclusion of the element of ‘wilfulness’ in the Queensland provision ‘is more appropriate to criminal behaviour and unnecessarily complicates what is required to be proved’.^[69]

Injury to animals

5.45 Most jurisdictions provide that injuring or killing an animal constitutes family violence. In Queensland, Western Australia and the Northern Territory, harm to an animal is included as a type of property damage.^[70] The ACT legislation separates damage to property from conduct directed to a pet, and makes the latter family violence where it constitutes a defined animal violence offence.^[71] The Victorian legislation, however, includes conduct that threatens or causes the death or injury of an animal, irrespective of whether the animal belongs to the relevant family member, where such conduct is aimed at dominating or coercing the family member.^[72]

5.46 The other jurisdictions are silent on whether harm to animals constitutes family violence. Harm to animals may fall within the broader category of damage to property, but the Tasmanian legislation does not include damage to property in its definition of family violence. Harm to an animal may in some cases be covered by more general provisions such as emotional abuse.^[73]

Stalking

5.47 Four jurisdictions expressly include stalking as conduct that constitutes family violence,^[74] with three of those jurisdictions linking the conduct to the criminal offence of stalking.^[75] The situation in the Northern Territory warrants special mention because of the disjunction between the civil and criminal definitions of stalking. This is discussed in Chapter 6.

5.48 Other jurisdictions do not expressly refer to stalking as conduct that may constitute family violence, but their definitions, to varying degrees, may encompass conduct that includes certain stalking behaviour.^[76]

Exposure of children to violence

5.49 Victoria is the only Australian jurisdiction where causing a child to witness or otherwise be exposed to the effects of family violence itself constitutes family violence.^[77] The legislation in Western Australia, South Australia and the Northern Territory does not treat exposure of a child to family violence as constituting family violence but expressly allows for the making of protection orders to protect children from such exposure.^[78]

5.50 The legislation in NSW provides that a child must be included in a protection order if the child is in a domestic relationship with the person subject to the order.^[79]

5.51 Where jurisdictions have definitions that include emotional or psychological abuse, these may encompass the exposure of a child to family violence.^[80]

Threats to commit acts of family violence

5.52 In most jurisdictions the threat to commit certain acts of family violence also constitutes family violence.^[81] In some jurisdictions threats to commit assault, cause physical injury, or damage property are included, but threats to intimidate or be emotionally abusive or engage in conduct amounting to stalking are not.^[82] In other jurisdictions, however, threatening to commit non-physical violence—such as intimidation, stalking and economic abuse—are specifically included.^[83]

Breach of protection orders

5.53 In NSW, Tasmania and the ACT a breach of a protection order is included in the definition of family violence.^[84]