Criminal law

6.4 Chapter 5 discusses the extent of linkage between current definitions of family violence in family violence laws and the criminal law. The following discussion addresses interaction issues between the definitions or terminology in family violence laws and criminal laws:

• in the limited circumstances where criminal laws define ‘family violence’; and

• where each law defines a particulartype of conduct that may constitute family violence, such as stalking or assault.

Interaction of definitions: family violence laws and criminal laws

6.5 There are limited examples of definitions of ‘family violence’ or ‘domestic violence’ in the criminal laws of Australia. One area where the criminal law has defined ‘family violence’ is in the context of defences to homicide.^[1] This is the case under the Crimes Act 1958 (Vic) and the Criminal Code (Qld).^[2] A consideration of this legislation raises the broader question of how family violence should be defined where it is referred to expressly in criminal law provisions.

Victorian criminal legislation

6.6 Section 9AH of the Crimes Act 1958 (Vic) confirms the potential relevance of evidence of family violence to cases of murder,^[3] defensive homicide^[4] and manslaughter.^[5] It does not operate as a separate defence in itself, but provides that evidence of family violence may be relevant in the context of homicide defences—including self-defence and duress.^[6] The section provides guidance about particular facts in issue to which evidence of family violence may be relevant, and the types of evidence that may be relevant.^[7]

6.7 ‘Violence’ is defined more narrowly in s 9AH of the Crimes Act 1958 than it is under the family violence legislation. In the Crimes Act, it is defined to include physical abuse, sexual abuse, psychological abuse—including intimidation, harassment, damage to property, and certain threats—and causing a child to see or hear certain types of abuse, or putting a child at real risk of seeing or hearing that abuse. It is narrower than the definition of violence in the family violence legislation, as it does not include economic abuse or the more general category of behaviour that in any other way controls or dominates the person and causes the person to feel fear for his or her or a family member’s safety or wellbeing.^[8]

6.8 The definition of family violence adopted in the Crimes Act 1958 in 2005is the same as that in New Zealand. It was introduced in response to a recommendation made by the Victorian Law Reform Commission (VLRC) in its report on defences to homicide in 2004.^[9] In a later report in 2006, the VLRC recommended that the definition should include economic abuse.^[10] This led to the inclusion of a broad definition of family violence in the Family Violence Protection Act 2008 (Vic), following amendments to the Crimes Act 1958. Therefore, while the definition in the Crimes Act is narrower, this is a result of timing rather than a deliberate intention to introduce a definition of family violence that is more limited than that in Victoria’s family violence legislation.^[11]

Queensland criminal legislation

6.9 During the course of this Inquiry, Queensland introduced the Criminal Code (Abusive Domestic Relationship Defence and Another Matter) Amendment Act 2010 (Qld), which commenced on 16 February 2010. The Act amends the Criminal Code (Qld) to insert a new partial defence to murder—‘killing in an abusive domestic relationship’.^[12]

6.10 The provision is discussed in detail in Chapter 14. For present purposes, it is sufficient to note that the defence applies where the deceased had committed ‘serious acts of domestic violence’ against the accused person in the course of an ‘abusive domestic relationship’. As the term ‘domestic violence’ is defined by reference to the Domestic and Family Violence Protection Act 1989 (Qld),^[13] the term has the same meaning under civil and criminal legislation.^[14]

6.11 The distinguishing factor in the criminal legislation is the requirement for the relevant acts of ‘domestic violence’ to be ‘serious’ in order for the defence to apply. The Queensland Attorney-General, the Hon Cameron Dick, stated in the Second Reading Speech that the term ‘serious’ has been left deliberately undefined as a matter for the jury to determine in the circumstances of individual cases.^[15]

Submissions and consultations

6.12 In the Consultation Paper, the Commissions proposed that the definitions of family violence in state or territory family violence and criminal legislation—in the context of defences to homicide—should align, irrespective of whether the criminal legislation limits the availability of defences to homicide in a family violence context to cases involving ‘serious’ family violence.^[16]

6.13 The Commissions made a second proposal in respect of definitional alignment between the Victorian criminal and family violence legislation: that the definition of family violence in s 9AH of the Crimes Act 1958 (Vic) should be replaced with the definition of family violence in s 5 of the Family Violence Protection Act 2008 (Vic). In the alternative, the Commissions proposed that the definition of family violence in s 9AH of the Crimes Act 1958 (Vic) should be amended to include economic abuse.^[17]

6.14 Overall, stakeholders strongly supported alignment of the definitions of family violence in civil and criminal legislation, in respect of defences to homicide. In the Victorian context, most stakeholders who commented on the form of alignment favoured the uniform application of the definition of family violence in s 5 of the Family Violence Protection Act 2008 (Vic) to both civil and criminal laws.

The principle of definitional alignment

6.15 The majority of stakeholders who considered the proposal supported alignment of the definitions of family violence in civil and criminal legislation, in the context of homicide defences.^[18] Most did not advance reasons for their positions. However, several broad themes emerged from those submissions providing reasons. These stakeholders submitted that definitional alignment between civil and criminal legislation within individual states and territories would:

• facilitate a consistent understanding of the nature and dynamics of family violence between civil and criminal jurisdictions and, consequently, promote a consistent legal response;^[19]

• avoid confusion where there are overlapping civil and criminal processes arising from the same conduct;^[20] and

• facilitate a nationally consistent approach to defining family violence across criminal and civil jurisdictions in all states and territories.^[21]

6.16 The Australian Domestic and Family Violence Clearinghouse, however, opposed the principle of definitional alignment, on the basis that civil and criminal laws perform different functions and are underpinned by different policy objectives which ought to be reflected in separate definitions of family violence.^[22] Two other stakeholders opposed the principle of definitional alignment without explanation.^[23]

6.17 In responding to the Commissions’ proposal for alignment of the definitions of family violence in civil and criminal legislation in the context of homicide defences—irrespective of whether the latter limits the availability of relevant homicide defences to cases involving ‘serious’ family violence—some stakeholders commented on the interpretation of the term ‘serious’. Several stakeholders emphasised that an assessment of the severity of family violence requires a thorough understanding of the dynamics of family violence and, in particular, patterns of abuse comprising both criminal and non‑criminal conduct.^[24]

Definitional alignment in Victorian legislation

6.18 The majority of stakeholders commenting on the issue of definitional alignment in the Victorian context supported alignment of the definitions of family violence in the criminal and family violence legislation.^[25] However, most submissions did not comment expressly on the preferable form of alignment—that is, whether the definition of family violence in s 9AH of the Crimes Act 1958 (Vic) should be replaced by the definition in s 5 of the Family Violence Protection Act 2008 (Vic), or whether the existing definition in the criminal legislation should be amended to incorporate economic abuse.

6.19 Of those submissions commenting on the form of alignment, the majority supported the replacement of the definition in the criminal legislation with that of the family violence legislation.^[26] In a joint submission, Domestic Violence Victoria and others commented that adding economic abuse to the Crimes Act definition would not address other inconsistencies between the definitions, including the broader definition of ‘family member’ in the family violence legislation.^[27] The Magistrates’ Court and Children’s Court of Victoria commented that the definition in the family violence legislation provides ‘a comprehensive and workable model’.^[28]

Commissions’ views

Homicide defences—definitional consistency ‘in-principle’

6.20 The Commissions consider that there are two key reforms to be achieved in relation to the definition of family violence for the purposes of homicide defences. First, the Commissions consider that there is considerable merit in a jurisdiction’s family violence legislation and criminal legislation adopting a core definition of family violence, together with a shared understanding of particular conduct that may comprise family violence.^[29] The Commissions consider that such an approach would promote a consistent understanding of the nature and dynamics of family violence between civil and criminal jurisdictions and, in turn, a consistent legal response.

6.21 Secondly, the Commissions maintain their view expressed in the Consultation Paper that, where state or territory criminal legislation recognises family violence as relevant to a defence to homicide, family violence should be defined in the same way that it is defined in family violence legislation.^[30] Taken together, these reforms achieve alignment of a revised definition of family violence in civil and criminal contexts within a jurisdiction. These matters are the subject of Recommendation 6–1 below.

6.22 The Commissions acknowledge the preference of some stakeholders for a nationally consistent approach to defining family violence across criminal and civil jurisdictions in all states and territories. As mentioned in Chapter 5, the Commissions have emphasised the need for a consistent core definition together with a shared understanding of what constitutes family violence across civil and criminal jurisdictions in all states and territories, rather than national uniformity of definitions.^[31] The Commissions consider, however, that there is a stronger case for uniformity of the definition of family violence across an individual state or territory’s family violence and criminal laws, than is the case across all states and territories. That is, criminal and family violence legislation should adopt—in the same terms—the core definition and common understanding of conduct that may constitute family violence outlined in Recommendation 5–1. One particular advantage of such definitional uniformity within an individual state or territory is that it would clearly convey a legislative intention for a consistent interpretation of family violence across criminal and civil jurisdictions.

6.23 In arriving at this view, the Commissions have considered whether the differing policy objectives of protection order regimes in civil laws and homicide defences in criminal laws warrant a more restrictive definition of family violence in the context of homicide defences. On balance, the Commissions consider that the different policy objectives of the relevant laws are not compromised by the adoption of a common understanding of family violence. Rather, the different policy objectives of the relevant laws may be addressed by placing emphasis, where necessary, on the seriousness of family violence in individual cases, rather than excluding categorically certain types of violence.

6.24 In the Commissions’ view, it is appropriate that the degree of severity of family violence capable of being relied upon as a defence to homicide is higher than that which may be required to obtain a protection order. For example, the partial defence of killing in an abusive domestic relationship in the Criminal Code (Qld) s 304B makes express provision for this approach in limiting the availability of the defence to cases involving ‘serious’ family violence. Similarly, where evidence of family violence is relevant to a defence of general application, the issue of severity of violence will most likely be a matter for the trier of fact to assess in individual cases. For instance, in the context of self‑defence, the issue of severity will be one of the factors considered by the jury in determining whether the accused had reasonable grounds for believing that his or her conduct was necessary for self-preservation.

6.25 In this respect, the Commissions acknowledge stakeholder comments on the interpretation of the severity of family violence in individual cases. The Commissions agree that an assessment of the severity of family violence in the context of homicide defences requires an appreciation of the nature and dynamics of family violence on the part of judicial officers, juries and legal representatives. This matter is considered further in Chapter 14 on homicide defences, and in Chapter 31 on education and training.

Homicide defences—definitional consistency in Victoria

6.26 In the Commissions’ view, the Victorian family violence and criminal legislation would benefit from a consistent definitional approach to family violence—in accordance with the core definition of family violence and the inclusive list of behaviours in Recommendation 5–1. The fact that the Victorian criminal legislation has a narrower definition in its family violence legislation appears a matter of the timing of particular legislative amendments and not a deliberate policy choice for a narrower definition in the criminal law.

6.27 The Commissions consider that definitional consistency would enhance the effectiveness of the legislative guidance about the potential relevance of family-violence related evidence in s 9AH of the Crimes Act. In particular, it would expressly draw attention to the wider range of behaviours recognised in contemporary understandings of family violence. Accordingly, the Commissions consider that the definition of family violence in s 9AH of the Crimes Act should be replaced with the consistent core definition and the inclusive list of behaviours in Recommendation 5–1. That is, family violence should be defined as 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, the list of behaviours contained in Recommendation 5–1(a)–(i). This matter is addressed in Recommendation 6–1 below. The combined effect of Recommendations 5–1 and 6–1 is, therefore, that s 5 of the Family Violence Protection Act should be amended to incorporate the definitional approach outlined in Recommendation 5–1, and that s 9AH of the Crimes Act should be amended to mirror s 5 of the Family Violence Protection Act as amended.

6.28 Given that the core definition of family violence in Recommendation 5–1 emphasises the context in which family violence should be defined—and the Victorian family violence legislation does not currently do so—the Commissions consider that adding ‘economic abuse’ to the current definition of s 9AH of the Crimes Act^[32] would not achieve the desired outcome. The Commissions also acknowledge stakeholder comments that adding ‘economic abuse’ to the current definition of family violence in s 9AH of the Crimes Act may not resolve inconsistencies between the definitions of ‘family member’ in family violence and criminal legislation. The Commissions address this matter separately in Chapter 14.

Definitional consistency between family violence and criminal legislation beyond the context of homicide defences?

6.29 Homicide defences are one instance in which existing criminal laws have made express reference to family violence. The Commissions acknowledge that states and territories may, in future, enact family‑violence specific provisions in their criminal legislation—for example, new offences or sentencing factors that refer expressly to family violence.

6.30 The Commissions consider the policy underlying the potential creation of new family-violence specific offences and sentencing factors in Chapter 13. In light of the Commissions’ views on the substantive policy issues articulated in that chapter, no recommendations are made in respect of future definitional consistency issues beyond the context of homicide defences. The Commissions consider that offences and sentencing may raise distinct issues about the boundaries of criminal law that may require consideration in further detail, should jurisdictions choose to pursue these options. For example, in creating a sentencing factor in respect of the commission of an offence as part of a broader course of family-violence related conduct, it would be necessary to consider whether the definition of family violence should encompass uncharged or non-criminal conduct in addition to other charged conduct. These matters are discussed further in Chapter 13.

Definitions of specific acts that may constitute family violence

6.31 As mentioned in Chapter 5, some state and territory family violence legislation incorporates certain criminal offences in their definitions of family violence. For example, the Victorian legislation provides that the definition of ‘assault’ for the purposes of family violence is the same as the definition of assault in s 31 of the Crimes Act 1958 (Vic).^[33] Similarly, the Western Australian 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).^[34]

6.32 In some instances, acts constituting family violence are defined differently in family violence and criminal legislation. In some cases, differences in definitions are attributable to the particular objectives of the civil protection order regime and the criminal law. In other cases, however, the justification for differences in definitions is not immediately apparent. In these instances, such differences may produce anomalous outcomes or cause confusion to family violence victims or their legal representatives. Some specific examples are outlined below, as are the Commissions’ recommendations to address such anomalies and improve clarity.

‘Domestic violence’—Queensland

‘Wilful injury’

6.33 The definition of ‘domestic violence’ in s 11 of the Domestic and Family Violence Protection Act 1989 (Qld) includes ‘wilful injury’.^[35] This raises issues of the interaction of this provision with that of common assault in s 245 of the Criminal Code (Qld). The definition in the latter provision includes striking, touching, moving or otherwise applying force of any kind to another person. It does not specifically require an injury. Accordingly, the civil law definition of ‘wilful injury’ appears to be more restrictive than the criminal law definition of assault.

Indecent behaviour without consent

6.34 The definition of ‘domestic violence’ in s 11 of the Domestic and Family Violence Protection Act 1989 (Qld) also includes ‘indecent behaviour to the other person without consent’. However, there are some sexual offences in the Criminal Code (Qld) to which consent is not a defence—for example, sexual offences against children or other persons who lack legal capacity to consent to sexual conduct. The scope of the definition of ‘domestic violence’ in the family violence legislation means that a person may not be able to obtain a protection order—for example, on behalf of a child—in circumstances where criminal redress may be available. However, one Queensland stakeholder disagreed with this analysis and suggested that:

Magistrates in Queensland are well aware that those under 16 (or 18 in respect of anal sex) are not, as a matter of law, able to consent, so that consent is not an issue in dealing with sexual offences against children in domestic violence proceedings.^[36]

Stalking—Northern Territory

6.35 ‘Stalking’ is defined differently—and in some respects more narrowly—under the Domestic and Family Violence Act 2007 (NT) than it is for the purpose of delineating conduct constituting a criminal offence under the Criminal Code (NT). As mentioned in Chapter 5, the Domestic and Family Violence Act 2007 (NT) defines stalking as engaging in any of the following forms of conduct on a least two separate occasions with the intention of causing harm to the person, or causing him or her to fear harm:

• intentionally following the person; or

• intentionally watching, or loitering in the vicinity of, or intentionally approaching, the place where the person lives, works or regularly goes for a social or leisure activity.^[37]

6.36 Under the s 189 of the Criminal Code (NT), relevant stalking behaviour extends to a broader range of conduct—for example, telephoning or sending electronic messages to the victim, interfering with property in the victim’s possession and giving offensive material to the victim. As these behaviours are not included in the definition of stalking in the Domestic and Family Violence Act 2007 (NT), a victim seeking a protection order to restrain such conduct must rely upon the operation of a number of different sections of the Act which identify and define conduct constituting ‘domestic violence’.^[38]

6.37 For example, ‘intimidation’ is listed as a type of conduct constituting ‘domestic violence’ in s 5 of the Domestic and Family Violence Act 2007 (NT). It is defined in s 6 as ‘harassment’, or any conduct that causes a reasonable apprehension of violence to the person or damage to his or her property, or any conduct that has the effect of unreasonably controlling the person or causes him or her mental harm. ‘Harassment’ is not a defined term, however examples provided in s 6 include the regular and unwanted contacting of the person—including by mail, phone, text messages, fax, the internet or another form of electronic communication. Section 6 further provides that a relevant consideration in determining whether a person’s conduct amounts to intimidation is the existence of a pattern of conduct, especially domestic violence.

6.38 A further difference in the civil and criminal definitions of ‘stalking’ is that the Criminal Code (NT) allows for a combination of behaviours to constitute stalking, in addition to repeated instances of the same conduct. Under the Domestic and Family Violence Act 2007 (NT), a victim would have to identify other forms of domestic violence in s 5 in order to achieve recognition of a combination of abusive behaviours.

6.39 These differences mean that, in the Northern Territory, to obtain a protection order in respect of conduct that is, or is capable of being, the subject of a criminal prosecution for stalking, such conduct must be capable of falling within other—and potentially multiple—forms of conduct recognised as ‘domestic violence’ under the Domestic and Family Violence Act 2007 (NT).

Emotional or psychological harm, mental harm—South Australia

6.40 In the Intervention Orders (Prevention of Abuse) Act 2009 (SA) one of the categories of abuse is that which causes, or is intended to cause, ‘emotional or psychological harm’. Such harm is defined as including:

• mental illness;

• nervous shock; and

• distress, anxiety or fear, that is more than trivial.^[39]

6.41 However, the distinction between emotional and psychological harm is not readily apparent on the face of the family violence legislation. The inclusive list of ‘emotional or psychological harm’ in s 8 does not distinguish between the two types of harm, nor does the provision expressly refer to, or adopt, any corresponding criminal law concepts, which are discussed below.

6.42 The Criminal Law Consolidation Act 1935 (SA) uses the term ‘mental harm’ for the purposes of offences relating to causing harm^[40] or serious harm,^[41] or creating a risk thereof.^[42] It defines ‘harm’ as meaning ‘physical or mental harm (whether temporary or permanent)’.^[43] ‘Mental harm’ is, in turn, defined as ‘psychological harm and does not include emotional reactions such as distress, grief, fear or anger unless they result in psychological harm’.^[44] The term ‘psychological harm’ is undefined.

6.43 Notwithstanding that the family violence legislation is silent on issues of consistency of terminology with the criminal legislation, it appears that ‘emotional harm’ is intended to include harm that falls short of ‘psychological harm’ for the purposes of the criminal legislation.^[45] However, in conflating psychological and emotional harm in the illustrative lists in s 8, the family violence legislation does not provide practical guidance on distinguishing between the two forms of harm.

6.44 For example, it is unclear whether proof of ‘mental illness’ or ‘nervous shock’—for the purposes of obtaining a protection order—would qualify as proof of ‘mental harm’ for the purposes of a criminal prosecution for an offence in the nature of causing harm—assuming that proof is established beyond reasonable doubt. Similarly, it is open to argument as to whether ‘distress, anxiety or fear that is more than trivial’ under the family violence legislation could result in ‘psychological harm’ and thus fall within the definition of ‘mental harm’ under criminal legislation. The absence of a statutory definition of ‘psychological harm’ in the criminal legislation means that—even if an intention to align terminology or concepts between family violence and criminal legislation may be inferred from the family violence legislation—the criminal law terminology does not offer a straightforward means of distinguishing between forms of harm.

6.45 As the Intervention Orders (Prevention of Abuse) Act 2009 (SA) had not commenced at the time of writing, it remains to be seen whether the interaction between definitions proves to be problematic in practice for victims and their legal representatives involved in both civil family violence and criminal proceedings.

Consultation Paper

6.46 In the Consultation Paper, the Commissions proposed that state and territory governments should review their family violence and criminal legislation to ensure that the interaction of terminology would not prevent a person obtaining a protection order in circumstances where a criminal prosecution could be pursued.^[46]

6.47 The Commissions also made specific proposals for the review or amendment of aspects of the family violence and criminal legislation of Queensland, South Australia and the Northern Territory, namely that:

• the definition of stalking in the Domestic and Family Violence Act 2007 (NT) s 7 should be amended to include all stalking behaviour referred to in the Criminal Code (NT) s 189;^[47]

• the Queensland government should review the inclusion of the concepts of ‘wilful injury’ and ‘indecent behaviour without consent’ in the definition of ‘domestic violence’ in s 11 of the Domestic and Family Violence Protection Act 1989 (Qld) in light of how these concepts might interact with the Criminal Code (Qld);^[48] and

• the South Australian government should review whether the interaction of the definition of ‘emotional or psychological harm’ in the definition of ‘abuse’ in s 8 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) and ‘mental harm’ in s 21 of the Criminal Law Consolidation Act 1935 (SA) is likely to confuse victims and their legal representatives involved in both civil family violence and criminal proceedings.^[49]

Submissions and consultations

6.48 Most stakeholders supported the general principle that a victim of family violence should not be precluded from obtaining a protection order in circumstances where a criminal prosecution is open, without commenting as to detail.^[50] As outlined below, however, there was a divergence of views about the operation of specific provisions in the Queensland, Northern Territory and South Australian criminal and family violence legislation.

‘Domestic violence’—Queensland

6.49 There was general consensus among stakeholders that the references in the Queensland family violence legislation to ‘wilful injury’ and ‘indecent behaviour … without consent’ are or may be problematic.^[51] The Queensland Commission for Children and Young People and Child Guardian commented that the term ‘wilful injury’ is ‘too restrictive’ in that it does not capture the broader types of behaviours under the definition of common assault in the Criminal Code (Qld). The Commission submitted that ‘wilful injury’ should be replaced with a term consistent with common assault in the Criminal Code (Qld).^[52]

6.50 Similarly, the Queensland Government commented on the importance of ensuring that

current definitions do not lend themselves to a restrictive interpretation of behaviours which would otherwise be regarded as acts constituting domestic violence. In particular, the requirement to demonstrate wilfulness or lack of consent may in some cases place a heavy burden on victims.^[53]

6.51 The Queensland Government stated that it would consider the approaches taken in the family violence legislation of other jurisdictions—together with input from consultations undertaken as part of its current review of the Domestic and Family Violence Prevention Act 1989 (Qld)—‘with a view to capturing all of the behaviours that are considered to reflect the current understanding of domestic and family violence’.^[54]

6.52 However, as noted above, the Queensland Law Society submitted that the reference to ‘indecent behaviour … without consent’ may not necessarily require amendment, on the basis that consent is not an issue when dealing with persons who, as a matter of law, are unable to give consent.^[55]

Stalking—Northern Territory

6.53 Stakeholders who addressed the issue unanimously supported the Commissions’ proposal that the definition of stalking in the Domestic and Family Violence Act 2007 (NT)should be amended to include all stalking behaviour referred to in the Criminal Code (NT).^[56] Two stakeholders observed that—while the family violence legislation is capable of recognising stalking behaviour through the operation of several different sections—the proposed amendments would improve clarity.^[57]

Emotional or psychological harm, mental harm—South Australia

6.54 Two South Australian stakeholders considered that the interaction of the definition of ‘emotional or psychological harm’ in the Intervention Orders (Prevention of Abuse) Act 2009 (SA) and ‘mental harm’ in s 21 of the Criminal Law Consolidation Act 1935 (SA) would be unlikely to confuse victims and their legal representatives involved in both civil family violence and criminal proceedings.^[58] In addition, the Government of South Australia submitted that:

As a matter of policy it is appropriate that the civil intervention order provisions cover a wider ambit of conduct—ie, causing ‘emotional harm’—and that the criminal provisions are more confined—to effects that can be more objectively proven with medical/psychiatric evidence. Whilst the interaction between the definitions may prove to be problematic in practice, it appears clear that the civil legislation encompasses emotional harm that does not amount to psychological harm, while the criminal legislation specifically excludes it.^[59]

Commissions’ views

Interaction of terminology between family violence and criminal legislation

6.55 In terms of policy, it is not justifiable to have a definition of family violence in family violence legislation that may preclude or potentially make it more difficult for a victim to obtain a protection order than for a prosecution to be commenced, in circumstances which warrant prosecution.^[60] Family-violence related conduct that is sufficiently serious as to warrant a criminal law response should be recognised under civil protection order schemes in clear and straightforward terms.

6.56 In the Commissions’ view, the best way of ensuring such recognition is the express alignment of corresponding terminology or concepts across family violence and criminal legislation. In particular, where the definition of family violence in a state or territory’s family violence legislation includes concepts recognised in that jurisdiction’s criminal legislation—such as stalking or kidnapping—the family violence legislation should expressly adopt the criminal law definitions of those concepts.^[61]

6.57 For example, a preferable approach to recognising stalking behaviours in the Northern Territory family violence legislation may be to define the term ‘stalking’ in s 7 by reference to, or consistently with, the definition of stalking in the Criminal Code. This approach would obviate the need to characterise stalking-related behaviours under multiple provisions in the family violence legislation. In addition, it would simplify the application process for self-represented victims.

6.58 Similarly, in Queensland, those aspects of the definition of ‘domestic violence’ in the Domestic and Family Violence Prevention Act 1989 (Qld) referring to ‘wilful injury’ and ‘indecent behaviour without consent’ should be amended to reflect the broader behaviours captured by the criminal law definition of assault, and relevant criminal offences in respect of indecent behaviours that do not involve an element of consent. The Commissions note the intention of the Queensland Government to consider this issue as part of its current review of the family violence legislation.

6.59 The Commissions acknowledge, however, that there may be occasion for family violence legislation to recognise broader categories of conduct than those recognised at criminal law, given the different objectives of the criminal laws and the civil protection order regimes. For example, it is appropriate—as a matter of policy—for definitions of family violence in family violence legislation to recognise ‘emotional harm’ as conduct falling short of the criminal law concept of ‘psychological harm’.

6.60 However, this approach should be made clear in family violence legislation. In particular, where family violence legislation refers to ‘emotional and psychological harm’ as a form of family violence,^[62] it should expressly identify that ‘psychological harm’ takes its criminal law meaning, and that ‘emotional harm’ captures conduct that is less than ‘psychological harm’.