Civil and criminal proceedings

8.30 Conduct constituting family violence may form the basis of a protection order as well as grounds for a criminal prosecution. In these cases, civil family violence laws can interact with criminal law. Physical and sexual assault are clear examples; they are family violence—for the purpose of obtaining a protection order—and they are crimes in all jurisdictions. Not all family violence under state and territory family violence legislation is criminal,[30] but as discussed in Chapter 9, criminal law procedures—such as police powers of arrest and detention—can also interact with civil law protection orders.

8.31 There are some key differences in the civil and criminal responses to family violence. Some of these are summarised in the following table:

  Civil protection order Criminal proceedings

Purpose (see discussion in Chapter 4)

Protect victim from future violence. Punish offender for past criminal conduct. Other sentencing purposes include: deterrence, rehabilitation, incapacitation, denunciation and restoration.
Standard of proof Balance of probabilities. Beyond reasonable doubt.
Who initiates Victim, authorised person, police, and possibly—but less frequently—the DPP. In certain cases and in some jurisdictions, courts can also initiate making of protection order. Police lay charges and prosecute less serious offences. State/territory DPPs prosecute more serious offences.
Outcome Conditions or restrictions placed on person against whom order is made (eg, not to harass, be of good behaviour, not to approach victim). On finding of guilt or conviction, offender is sentenced.

Choice of proceedings

8.32 There may be legitimate reasons that police and prosecutors, when they encounter family violence, might seek a protection order for the victim, but not pursue criminal charges. Some family violence will not amount to a criminal offence; protection orders generally offer a speedier response to violence and therefore speedier protection; and there is a lower standard of proof in civil protection order proceedings. But are decision makers sometimes wrongly choosing to pursue one remedy at the expense of the other?

8.33 As noted by Amnesty International, the United Nations Special Rapporteur on Violence against Women, its Causes and Consequences, has raised concerns about the use of protection orders under family violence legislation in Australia instead of, rather than as well as, a criminal response.[31] Amnesty International has stated:

Civil protection orders are an essential part of the state’s responsibility to protect survivors of violence, but should complement, not replace, a criminal response.[32]

8.34 Commentators have noted, however, that where there is an overlap between criminal and civil responses, the balance

is a delicate one, between providing a legal mechanism for protecting people who experience domestic violence, but not downplaying its significance by applying what is essentially a private law remedy.[33]

8.35 In 1990, Dr Jocelynne Scutt argued that family violence laws effectively ‘decriminalise’ family violence:[34]

The emphasis is on treating assault not as criminal, but to be dealt with by a civil law ‘solution’. The man is not penalised for assaulting his wife; he is penalised if at all, for breaking an order of the court.[35]

8.36 In 2008, Dr Heather Douglas wrote that in Queensland, family violence continues to be dealt with mainly through protection orders, rather than the criminal law:

The development of protection order legislation grew, to some extent, out of frustration with the failure of the criminal justice system. Some of the key obstacles in criminal prosecution and conviction of domestic violence offences are the high standard of proof of ‘beyond reasonable doubt’ and the fact that many of the standard criminal offences fail to encapsulate certain violent behaviours … These protection order schemes have been embraced by both women and by police. As one magistrate has noted, we have seen a ‘rise and rise’ in the use of protection orders.[36]

8.37 The Magistrates Court of Queensland reported that, in the year 2007–08, it made a total of 32,081 protection orders and dismissed 5,376 applications for such orders.[37] New South Wales Criminal Courts statistics also indicate high usage of the protection order system. Statistics for 2008 reveal that 22,684 protection orders were granted in proceedings under NSW family violence legislation—excluding interim orders.[38]

8.38 The 2008 review of the family violence legislation of Western Australia (WA) notes a concern that, despite police policy stating that protection orders ‘are to be seen as an additional safeguard and are not regarded as an alternative to the laying of charges’, the introduction of police-issued protection orders has become, in some instances, an alternative to a criminal justice response.[39] The WA review stated that:

The question is whether police are issuing police orders, not only in appropriate circumstances, but also in circumstances where they should be preferring charges …

Responses from the policy survey indicate that, in some instances, issuing a police order may be preferred to laying charges because issuing a police order requires less police time.[40]

8.39 The WA review expressed concern that some police were potentially trivialising what, to a victim, was a serious offence.[41]

8.40 In contrast, the Commissions heard anecdotally in one consultation with magistrates in Adelaide that, in that jurisdiction, police prefer laying a charge to taking out a protection order because the latter involves preparing an affidavit and is more time-consuming.[42]

8.41 While one concern is that civil redress downplays the significance of family violence, concerns have also been raised that applying the criminal law to family violence may inflict further harm to women.[43] Douglas has stated that:

It is argued by some that involving the criminal justice system in domestic violence matters may create distress, disadvantages and disillusionment for women that override any hope or protection and safety gained through the criminal justice process. … In Australia, there is research available that shows that indigenous women in some communities may be reluctant to call on police to protect them from violence where arrest and prosecution focused strategies are in place.[44]

8.42 Since the 1970s, some commentators emphasised that there are important reasons for treating family violence as criminal and not civil or private. Douglas suggested that this has encouraged public condemnation of the violence and police accountability for the protection of women.[45] However, Scutt argued that criminal assault in a family violence context

is effectively decriminalised by the failure of police and courts to treat it as criminal, the ‘solution’ is seen as passing legislation to grant women a right to an … ‘intervention order’.[46]

8.43 Whether a civil and/or a criminal response is pursued may also depend in practice on the victims’ wishes. Whether victims choose to pursue a civil remedy or assist in a criminal prosecution may be influenced by a number of factors, including their experiences of the legal system; their access to support services; and the nature of their relationship with the persons who have been violent to them. As Douglas has noted:

Both individual judges and research have also recognised that the cyclical and complicated nature of family violence relationships often leads victims to seek to withdraw charges or understate the harm of particular conduct during periods of calm in their relationship.[47]

8.44 In cases of family violence involving allegations of sexual assault, there are parallel levels of attrition at various stages of the criminal process, which are considered in Part G of this report.

Submissions and consultations

8.45 In the Consultation Paper, the Commissions asked whether police or other participants in the legal system were treating the obtaining of protection orders under family violence legislation and a criminal justice response to family violence as alternatives rather than potentially co-existing avenues of redress. In other words, were they choosing one remedy over the other, when perhaps they should have sought both? If they were, the Commissions asked, what are the practices or trends and how can this best be addressed?[48]

8.46 Stakeholders submitted that the research on this question was limited[49] and that practices vary between jurisdictions.[50]

8.47 While noting that it was to their credit that Queensland Police have taken strong and positive action to counter family violence, the Queensland Law Society submitted that the

most typical reaction by police in attending domestic situations is to take action and if necessary apply for a protection order and if necessary remove the perpetrator from the scene, taking him or her into custody for a number of hours, but not to charge the perpetrator with any offence.[51]

8.48 The Victorian Government stated that Victoria Police does not use one response over the other, and that since the introduction of the Code of Practice in August 2004, there have been substantial increases in both the number of intervention orders applied for by police and the number of charges laid arising from family violence incidents.[52]

8.49 However, some Victorian Magistrates have said that ‘Victoria Police do treat the obtaining of a protection order as an alternative to proceeding with criminal process. Others disagree’.[53] National Legal Aid submitted that:

In Victoria both intervention orders and criminal charges are used. Since the introduction of Family Violence Safety Notices allowing the police to remove alleged perpetrators from the home, criminal charges seem to be used only for the most serious cases. Family Violence Safety Notices should be used to ensure the safety of the victim and not as an alternative to criminal charges in appropriate circumstances.[54]

8.50 National Legal Aid submitted that in NSW local courts, ‘protection orders and criminal charges are often treated as co-existing avenues of redress’.[55] However, Women’s Legal Services NSW stated:

For many of our clients it is common for police not to charge offenders when charges would have been indicated as appropriate by police policy and the legislation … In some cases where the victim and perpetrator are in a relationship, the police do not charge with criminal offences until there have been a number of incidents.[56]

8.51 Police in WA, it was submitted, in some cases tell victims to get a protection order rather than investigate and prosecute a crime.[57]

8.52 Tasmania’s Safe at Home program encouraged police to bring both criminal and protection order proceedings, National Legal Aid submitted, and this is ‘embedded in police and there are appropriate reviews to ensure that it happens consistently’.[58]

8.53 In the ACT, National Legal Aid, submitted:

it is not the police who apply for domestic violence orders, except very rarely in emergency telephone order situations. There is a Family Violence Intervention Program which involves [lawyers], police, magistrates and services. All criminal matters that involve family violence are marked ‘Family Violence’—they go into the ‘Family Violence List’—this takes them before a magistrate who is on the Intervention Program committee. It is still treated the same way in terms of criminal law but by a judicial officer who has an awareness of the significance of family violence. There is no option for police bail if a person is arrested for a family violence offence. Protection orders are applied for by individuals.[59]

Reasons for not prosecuting

8.54 Various explanations were given for why police might choose to obtain a protection order, rather than prosecute a crime, when they could do both. The Queensland Law Society submitted that police claim it can be very difficult to prosecute these offences because:

(a) The victim often recants and therefore police are reluctant to commence the prosecution; and (b) It can be hard to prove matters beyond reasonable doubt. Furthermore, Queensland Police in their operational police manual … have their attention drawn to obtaining protection orders but not necessarily to also charging perpetrators of violence with offences arising out of the same conduct.[60]

8.55 Sometimes individuals are not charged, it is said, because prosecuting a crime means more work, and police might not have the time and resources to investigate these more difficult matters.[61] One legal centre also suggested ‘an attitude problem, especially towards Aboriginal women’, stating that ‘we often find that police are indifferent to Aboriginal women because there is a perception that Aboriginal women are unreliable’.[62]

8.56 Some victims of family violence reportedly do not want the offender to be charged with a criminal offence—they just want the violence to stop.[63] This might partly be out of fear of retribution,[64] but for some Indigenous victims of family violence, ‘by putting in place a DVO [a protection order] but not pressing aggravated assault charges, the police are in fact respecting the wishes of these women’.[65] Professor Julie Stubbs submitted that victims may choose to use different options at different times in response to their changing needs, concerns and capacities; an effective response to family violence should not preclude some capacity for victim choice.[66]

8.57 The idea of choice was also noted by the Commissioner for Victims’ Rights (South Australia), who cautioned against ‘a blanket approach that requires the police to always apply for a protection order and charge the substantive criminal offence’, because ‘it is important that victims know the choices, the implications and are engaged in the decision-making’.[67]

8.58 Stakeholders suggested that police need ongoing and comprehensive training, including about family violence and its complexities, especially in the context of Aboriginal communities, and about Aboriginal culture.[68] Police also need a ‘clear and cohesive framework’.[69] Standard operating procedures should guide police in deciding when to lay criminal charges.[70] Stakeholders also submitted that police responses to family violence should be monitored, scrutinised, and tracked.[71]

8.59 One Victorian community service and advocacy organisation noted that criminal charges rely on a police assessment of the strength of the evidence. Accordingly, it submitted, police should be encouraged to collect evidence and to work with family violence service providers to encourage women to make statements.[72]

There also needs to be support for specialist children’s support services, both to address the impact of violence and enable children to make statements to SOCA [Sexual Offences and Child Abuse police units]. Whole of service system support for victims is needed to encourage them to pursue criminal proceedings.[73]

8.60 While most submissions approached these questions by addressing whether police are not prosecuting family violence criminal offences when they should, one stakeholder addressed the question of whether protection orders were appropriately being put in place during or after criminal proceedings.[74]

Commissions’ views

8.61 In the Commissions’ view, police and prosecutors should only choose not to prosecute crimes committed in a family violence context with good reason. Civil and criminal responses to family violence can serve common purposes, such as the protection of a victim of family violence—but, as discussed more fully in Chapter 4, they can also serve different purposes. It is important that neither remedy is inappropriately neglected.

8.62 The question of whether to prosecute criminal family violence more actively inevitably raises the difficult matter of whether the state should prosecute despite the contrary wishes of the victim. This chapter does not explore this debate in detail, but notes that pro-arrest, pro-prosecution and other mandatory policies have their critics, some of whom maintain that the policies not only disempower victims, robbing them of their autonomy, but that they can even compromise victim safety.[75]

8.63 In practice, the reasons police do not prosecute crimes committed in a family context sometimes seem to be inappropriate, and sometimes do not clearly relate to the wishes or safety of victims. Not prosecuting because the task is difficult, or takes too much time, or because an officer thinks violence against a family member is less serious than other crimes are poor reasons not to prosecute a crime. As with decisions about whether to prosecute federal offences committed in a family violence context, discussed above, decisions about whether to prosecute other criminal offences committed in a family violence context should be made in accordance with prosecution policies. These policies consider such matters as the strength of the evidence and whether prosecuting is in the public interest. Determining this public interest will no doubt include carefully considering the needs and safety of victims.

8.64 Police should be trained and equipped to decide properly when to pursue civil and criminal responses to family violence—and when to pursue both.[76] In jurisdictions in which police now rarely play a role in issuing or applying for protection orders, it should be clear who is responsible and accountable for deciding whether to do so. The decisions police make in relation to when they issue or apply for a protection order and when they choose to prosecute a criminal offence should be monitored by senior police officers.

8.65 Failures to prosecute criminal family violence do not necessarily need to be addressed through mandatory-arrest or mandatory-prosecution policies. These are arguably blunt instruments. But a duty to investigate family violence, and to record when and why further action was not taken, should go some way to ensuring that police are alert to the importance of their role in combating family violence and treating it seriously. The Commissions discuss this duty to investigate in the following chapter. Chapter 11 also addresses the question of when it is appropriate for a court to issue a protection order during criminal proceedings—thereby accommodating a dual civil and criminal response to family violence.

[30] As discussed in Ch 5. Whether all family violence should be criminalised is discussed in Ch 13.

[31] Amnesty International, Setting the Standard: International Good Practice to Inform an Australian National Plan of Action to Eliminate Violence Against Women (2008), 45.

[32] Ibid, 45 (citation omitted).

[33] B Fehlberg and J Behrens, Australian Family Law: The Contemporary Context (2008), 200.

[34] J Scutt, Women and The Law (1990), 451, 457.

[35] Ibid, 459. Issues that arise on breach of a protection order are discussed in Ch 12.

[36] H Douglas, ‘The Criminal Law’s Response to Domestic Violence: What’s Going On?’ (2008) 30 Sydney Law Review 439, 444. However, in some cases, if civil redress were not available, a victim would be left without any protection.

[37] Magistrates Court of Queensland, Annual Report 2007–08, Appendix 11, Table 9. The figure of 32,081 includes final and interim protection orders, as well as variation and revocation of protection orders. The total number of final protection orders made in the same reporting period was 15,632.

[38] NSW Bureau of Crime Statistics and Research, New South Wales Criminal Courts Statistics 2008, 6, Table 1.14.

[39] Department of the Attorney General (WA), A Review of Part 2 Division 3A of the Restraining Orders Act 1997 (2008), 22.

[40] Ibid, 22–23.

[41] Ibid, 22.

[42] Family Violence Magistrates, Consultation, Adelaide, 25 September 2009.

[43] H Douglas, ‘The Criminal Law’s Response to Domestic Violence: What’s Going On?’ (2008) 30 Sydney Law Review 439, 439. The purposes of family violence legislation and the criminal law are discussed in Ch 4.

[44] Ibid, 442–443 (citations omitted).

[45] Ibid, 443 (citations omitted).

[46] J Scutt, Women and The Law (1990), 451.

[47] H Douglas, ‘The Criminal Law’s Response to Domestic Violence: What’s Going On?’ (2008) 30 Sydney Law Review 439, 454 (citation omitted).

[48] Consultation Paper, Question 5–4.

[49] J Stubbs, Submission FV 186, 25 June 2010.

[50] Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Australian Domestic and Family Violence Clearinghouse, Submission FV 216, 30 June 2010.

[51] Queensland Law Society, Submission FV 178, 25 June 2010.

[52] Victorian Government, Submission FV 120, 15 June 2010.

[53] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[54] National Legal Aid, Submission FV 232, 15 July 2010.

[55] Ibid.

[56] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[57] National Legal Aid, Submission FV 232, 15 July 2010.

[58] Ibid.

[59] Ibid.

[60] Queensland Law Society, Submission FV 178, 25 June 2010.

[61] Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010. See also J Stubbs, Submission FV 186, 25 June 2010.

[62] Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010.

[63] Confidential, Submission FV 164, 25 June 2010.

[64] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[65] Confidential, Submission FV 164, 25 June 2010.

[66] J Stubbs, Submission FV 186, 25 June 2010.

[67] Commissioner for Victims’ Rights (South Australia), Submission FV 111, 9 June 2010.

[68] Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010.

[69] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[70] Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010.

[71] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[72] Berry Street Inc, Submission FV 163, 25 June 2010.

[73] Ibid. Integrated responses and specialisation are discussed further in Chs 29 and 32 respectively.

[74] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010. The making of protection orders in criminal proceedings is discussed in Ch 11. The interaction between protection orders and bail conditions is discussed in Ch 10.

[75] For example, L Goodmark, ‘Autonomy Feminism: An Anti-Essentialist Critique of Mandatory Interventions In Domestic Violence Cases’ (2009) 37 Florida State University Law Review 1. This debate is discussed further below.

[76] The Commissions make recommendations about police training and education in family violence in Ch 31, and about the use of specialised police in Ch 32.