Model provisions reflecting best practice

7.4 As the Terms of Reference require the Commissions to consider interaction of laws, pursuing model family violence laws as a specific task is beyond the scope of this Inquiry. It is not feasible to seek consistency on all aspects of family violence legislation—nor is consistency across the board on all issues necessarily desirable, especially if consistency were achieved by implementing provisions which represent the lowest common denominator. However, the Commissions consider that there are key areas of family violence laws which are relevant to the establishment of a common interpretative framework. Guiding principles, objects, grounds for obtaining a protection order, and persons protected are inextricably linked to the achievement of a consistent response by using a common interpretative framework, and are considered in this chapter. The effect of targeting these discrete areas is to establish an irreducible core of best practice in family violence laws.

7.5 Not all states and territories have dedicated family violence legislation—in the sense that some legislation that deals with family violence also deals with obtaining protection orders for other forms of personal violence. Where there is dedicated family violence legislation across the jurisdictions, it varies substantially in its detail and scope. For example, the Victorian and ACT legislation comprises 272 and 217 provisions respectively,[1] while the South Australian and Tasmanian legislation comprises 42 and 44 provisions respectively.[2] In addition, there is variation in family violence legislation as to:

  • the range of persons who are able to avail themselves of the protection of such orders;

  • the extent to which guiding objects and principles are set out in the legislation;[3]

  • the extent to which police are obliged by legislation to take action where family violence is suspected;

  • the grounds for making an order;[4]

  • whether or not police have the power to issue orders themselves;

  • the power to make family violence notices or protection orders in criminal proceedings;

  • the penalties that attach to a breach of an order; and

  • the types of conditions that may be included in protection orders concerning counselling and rehabilitation programs for those who use violence.[5]

7.6 In 1999, the Domestic Violence Legislation Working Group—comprising Commonwealth, state and territory officials—published the Model Domestic Violence Laws Report, which contained model laws dealing with protection orders.[6] The model laws project was not pursued, and was subject to some criticism by Professor Rosemary Hunter and Professor Julie Stubbs on the ground that it appeared to focus simply on resolving inconsistencies.[7] There is also a concern that model laws should not impose standards that are of the lowest common denominator.

7.7 By way of comparison, the United States has a Model Code on Domestic and Family Violence that was not designed to provide a uniform code that would create consistency between the states.[8] Its purpose was to provide a model that states could use and consider when contemplating reforms to their domestic and family violence laws. The Code is described as a ‘public policy statement’ and a ‘framework’ and the Code’s drafters note each chapter and section ‘can be independently assessed and accepted or modified’.[9]

[1]Family Violence Protection Act 2008 (Vic); Domestic Violence and Protection Orders Act 2008 (ACT).

[2]Intervention Orders (Prevention of Abuse) Act 2009 (SA); Family Violence Act 2004 (Tas).

[3] Objects and principles are discussed in Ch 4 and below.

[4] Grounds for obtaining an order are discussed below.

[5] See Australian Government Solicitor, Domestic Violence Laws in Australia (2009), [2.1.34], Ch 3. Police powers to issue orders are discussed in Ch 9 and the making of protection orders in criminal proceedings, and conditions attached to protection orders are discussed in Ch 11.

[6] Domestic Violence Legislation Working Group, Model Domestic Violence Laws (1999).

[7] R Hunter and J Stubbs, ‘Model Laws or Missed Opportunity?’ (1999) 24 Alternative Law Journal 12, 16.

[8] National Council of Juvenile and Family Court Judges (US), Family Violence: A Model State Code: Model Code on Domestic and Family Violence (1994).

[9] Ibid, v–vi. Many states have relied heavily upon the Code when making and amending their family violence laws—National Council of Juvenile and Family Court Judges (US), Family Violence: Legislative Update (1997); National Council of Juvenile and Family Court Judges (US), Family Violence: Legislative Update (1996). The Code has not, however, led to a significantly greater level of harmonisation of law.