Mandatory reporting

Existing mandatory reporting laws

8.66 The police have a duty to investigate family violence; whether this duty should be in legislation or police codes of practice is discussed in Chapter 9. One way that police can be alerted to family violence is through reports from neighbours, health professionals, and others. The making of such reports can be mandated; persons can be fined for not reporting violence when they should.

8.67 Such a policy has been adopted in the Northern Territory (NT), where a duty to report some types of family violence is imposed on all adults.[77] Police must take reasonable steps to ensure reports are investigated.[78] Failure to make a report is a criminal offence,[79] and can therefore result in a wide range of persons—including professionals and family members who have not themselves committed family violence—entering into the criminal justice system. As at 15 June 2010, there had been no prosecutions or formal investigations for this offence.[80] Tasmanian family violence legislation also contains a mandatory reporting provision, but the relevant section has not commenced.[81]

8.68 Section 124A of the NT family violence legislation, inserted in 2009,[82] provides that an adult commits an offence if he or she fails to report to a police officer his or her belief, based on reasonable grounds, that:

  • another person has caused, or is likely to cause, harm to someone else with whom the other person is in a domestic relationship; and/or
  • the life or safety of another person is under serious or imminent threat because domestic violence has been, is being, or is about to be committed.[83]

8.69 Harm means ‘physical harm that is serious harm’[84] and serious harm is defined in the Criminal Code (NT) to mean any harm (including the cumulative effect of more than one harm):

(a) that endangers, or is likely to endanger, a person’s life; or

(b) that is or is likely to be significant and longstanding.[85]

8.70 There are defences in the NT legislation for ‘reasonable excuse’. Reasonable excuses for not reporting the violence include that the person reasonably believed someone else had reported the violence; the person was planning for the removal of the victim and intended to make his or her report soon after the removal; or that if the person reported the violence as soon as practicable, the report would have resulted in a serious or imminent threat to the life or safety of any person.[86]

8.71 The Tasmanian provision, unlike the NT provision, only applies to ‘prescribed persons’. Prescribed persons include registered medical practitioners, nurses, dentists, psychologists, and school teachers. These persons must inform a police officer as soon as practicable if they believe, or suspect, on reasonable grounds, or know, ‘that family violence involving the use of a weapon, sexual violence or physical violence, or where a child is affected, has occurred or is likely to occur’.[87] There is a defence for those who honestly and reasonably believe that a police officer has already been informed. The offence is punishable by a fine.

8.72 There are several key points about the reporting laws that are currently operating in the NT and that are proposed for Tasmania. First, under the NT provision, the obligation to report is not limited to prescribed persons, such as health or welfare workers, but rather extends to all adults. A broader range of persons is therefore required to report this violence in the NT than is required, outside the NT, to report concerns for the safety or welfare of children under child protection laws and provisions.[88]

8.73 Secondly, the violence that must be reported in the NT is not as broad as the violence that may form the basis of obtaining a protection order under the NT family violence legislation.[89] As noted above, s 124A requires reporting only where ‘the life or safety of another person is under serious or imminent threat’ or where there is serious physical harm. The Tasmanian provision also limits the types of violence that would have to be reported.

8.74 The NT family violence legislation also provides that a person acting in good faith is not civilly or criminally liable, or in breach of any professional code of conduct, for making a report or for disclosing any information in the report.[90]

The community’s responsibility for family violence

8.75 Supporters of mandatory reporting of family violence argue that family violence is a responsibility of the entire community. Introducing the NT provision, the Attorney-General said it reflects a ‘strong commitment to tackling domestic violence’ and ‘enables a community response to a community problem’.[91] It is the responsibility of

every member of our community to help break the cycle of domestic and family violence, and protect women and children from violence. The mandatory reporting law reflects this important responsibility.[92]

8.76 Viewed in this way, mandatory reporting is ‘not about peering over your neighbour’s fence or dobbing people in to the police’, but is about

no longer ignoring violence and abuse. Mandatory reporting is sending a message to the community, to our friends and neighbours, that abuse will no longer be ignored; that we, the community, will no longer remain silent.[93]

8.77 The Tasmanian Attorney-General also stressed that mandatory reporting reflects the community’s responsibility for tackling family violence and that ‘professionals, such as doctors, psychologists and police have an ethical responsibility to report the violence’.[94]

8.78 Enabling the state to intervene in a violent relationship at the earliest possible point has, in the United States (US), been an argument used for some time by supporters of laws for mandatory reporting by medical personnel.[95]

8.79 Given the community’s responsibility for improving the safety of victims of family violence, it was argued during debate on the NT provision that the obligation to report should not be limited to ‘serious harm’. Such a limitation was particularly dangerous in the NT, and might leave victims who do not need hospitalisation in a very dangerous position:

Violence is acculturated and engendered across many communities in the Territory. It has become normalised, and children grow up learning to accept violence, and that violence is a normal and acceptable response. Within this environment, in particular, it is very dangerous to restrict mandatory reporting to serious harm and to leave other forms of violence to the discretion of individuals, family members, community members, and professionals to report. By prescribing only serious harm as the type of violence to be reported, it requires bystanders to make a judgment about the seriousness or otherwise of the violence that occurs. … [It] provides the ultimate out for perpetrators: ‘I did not hit her hard. She was not bleeding. It was not harm that caused or will cause serious harm that endangered her life and it was not significant or long-standing’.[96]

Criticisms of mandatory reporting

8.80 Mandatory reporting, however, has many critics. For example, the Australian Domestic and Family Violence Clearinghouse expressed its ‘strong’ opposition to mandatory reporting of domestic and family violence by health professionals on grounds including the following:

  • there is no evidence that it improves safety for victims;
  • a significant number of victims are opposed to it;
  • victims might be deterred or prevented from seeking medical treatment; and
  • police do not have the capacity or willingness to investigate all reported cases.[97]

8.81 In introducing the family violence mandatory reporting provision, the NT Attorney-General noted the following concerns of opponents of mandatory reporting of child abuse: that people would not seek help; that it would result in further violence; that it would be unenforceable; that there would be confidentiality issues; and that certain occupations could be professionally compromised.[98] The Tasmanian Attorney-General also acknowledged that the mandatory reporting requirements ‘had caused some disquiet within the community sector’.[99]

8.82 Another criticism of mandatory reporting laws, also commonly directed to other mandatory legal responses to family violence, is that it can undermine the autonomy of victims. Some victims of family violence may consider that their safety and welfare is best secured by not seeking a protection order and by not seeking the prosecution of a criminal act of family violence. When the law for mandatory reporting of family violence in the NT was proposed, the National President of the Australian Association of Social Workers, Professor Bob Lonne, said that the Association’s members

know that a victim of family violence doesn’t always want the police to come round, as it doesn’t always lead to a resolution and can sometimes make the problem worse. Removing the power of the victim to decide when the police are notified makes the victim even more powerless in what is already a powerless family situation.[100]

8.83 Whether—and if so, under what circumstances—the state should defer to the wishes of victims and not investigate or act upon family violence remains a topic of debate.[101] Professor Leigh Goodmark, a US scholar and advocate of ‘autonomy feminism’, has said that whether and to what extent it is appropriate for the state to substitute its judgment for that of victims is a ‘hotly debated’ issue.[102] Goodmark argues for family violence law and policy that

respect[s] the rights of individual women to choose whether and how to use the criminal and civil legal systems. Such a shift would be consistent both with anti-essentialist feminist theory and with the focus on autonomy and agency that characterized the early battered women’s movement.[103]

Agency is, among other things, Goodmark argues,

the power to see a physician to have injuries treated but choose to have that physician maintain confidentiality about the cause of those injuries.[104]

8.84 Professor Cheryl Hanna has said that it is debated in feminist legal scholarship whether ‘autonomy and the right to make one’s own decisions offer more liberation for women, or are false notions masking subordination’:

In practice, most victims want the violence in their relationship to stop and to that extent will cooperate with the state. Many women, however, will resist outcomes that involve criminal records, jail, fines, or other punitive measures.[105]

8.85 Prosecutors and judges, Hanna states, must often ‘navigate the tricky waters between a victim’s personal autonomy and concerns for public safety and justice’.[106] This debate has not been settled; and these waters must be navigated not only by prosecutors and judges, but also by all persons who encounter family violence—including family, friends, neighbours, police, and health and welfare professionals.

Submissions and consultations

8.86 Following the release of the Consultation Paper, some stakeholders raised the issue of mandatory reporting of family violence against adults, particularly with reference to the NT law. There were particular concerns expressed that the mandatory reporting of some family violence could, in fact, discourage women from accessing counselling and legal services.[107] One legal service provider said it had heard anecdotally that there had been a decline in counselling numbers, but that it was too early to tell whether the new mandatory reporting laws in the NT are having an impact.[108] Another said that mandatory reporting often does not benefit victims and, in any event, reports are not properly acted upon by police: often by the time police attend the scene, if they attend at all, the violence will have ceased.[109]

8.87 Concerns were also expressed about the effect of the law on the empowerment of women experiencing family violence and that the NT provision covers harm that has already happened, and therefore may operate even where further harm is not likely to occur in the future:

Women who are not likely to face imminent harm should be allowed to tell their friends, family, service providers of their past experiences etc without fear that it will be reported to police, if they don’t want it to be.[110]

8.88 The Commissioner for Children (Tas) also expressed opposition to the proposed Tasmanian mandatory reporting provision. The Commissioner was ‘not aware of any evidence that such a process would make the lives of family violence victims any safer’:

If police turn up at a doorstep on the report of a mandatory notifier, but not in the heat of the moment in dealing with an immediate family violence offence, there is a serious risk that a victim’s private plans to escape or end the violence will be disrupted. Further, the perpetrator who may at that time be in a calm phase of the well-documented ‘cycle of violence’, could become destabilised and work retribution on the victim as a result of the visit itself. … Adding another mandatory reporting regime could be the straw that breaks the back of the Child Protection camel.[111]

Commissions’ views

8.89 The Commissions share some of the concerns noted above about mandatory reporting of family violence committed against adults—in particular, the potential for such laws to isolate victims of family violence by acting as a disincentive for victims to seek assistance, guidance, and medical care. Such laws might disempower victims, and take from them some of the tools with which, in their judgment, they are best able to use to combat or escape from violence.

8.90 Children are generally more vulnerable and less capable of judging how to respond to, and escape from, family violence—hence, the community has a greater responsibility to report concerns for the safety or welfare of children. Furthermore, as noted in Chapter 2, under the United Nations Convention on the Rights of the Child, States Parties are required to take all appropriate measures to protect children from

all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse.[112]

8.91 One US academic has said that the ‘distinction between reporting domestic violence and reporting child abuse must be underscored’:

The latter involves minors who are, in most legal contexts, dependent on adults. While battered women may be dependent on their abusers, they should in most cases be viewed in light of the strength and agency they often exhibit.[113]

8.92 In the Commissions’ view, this distinction shows why it might be appropriate in some circumstances for certain persons to be required to report violence against children—with the threat of criminal sanction for failing to do so—but not necessarily violence committed against adult men and women.

8.93 While in many circumstances, individuals will have an ethical duty to report family violence to the police—and as discussed in the following chapter, it should be incumbent on the police to investigate such violence—the Commissions have some reservations about placing a broad legal duty upon adults, and even only upon certain professionals, to report family violence. This is of particular concern if, by reporting the violence, these persons will be required to breach professional, personal and familial confidences and trust. This can have potentially damaging consequences to relationships. Such confidences and trust may be breached, or appear to victims to have been breached, despite legislation that provides that a person is not civilly or criminally liable or in breach of any professional code of conduct for reporting violence.[114] It may be unreasonable, for example, to criminalise someone’s failure to report to the police violence committed by his or her father, mother, sibling, or even adult child. Criminalising this ‘behaviour’—a failure to report albeit serious violence—may be an overreach of the criminal law.[115] Arguing that the community should take more responsibility for family violence does not necessarily require charging individuals with a criminal offence for not taking adequate personal responsibility for reporting the violence.

8.94 It would also be unfortunate if, to prove beyond reasonable doubt a person’s failure to report violence, a prosecutor were to call upon the victim of the violence to give evidence, perhaps against the victim’s wishes, of the violence itself and/or the accused’s knowledge of the violence or threat of violence.

8.95 In Chapter 9, the Commissions recommend that police should have a duty to investigate family violence where they believe family violence has been, is being, or is likely to be committed. It could be argued that mandatory reporting of family violence is consistent with this recommendation. If police should investigate family violence, some might argue, then laws should also try to increase the number of referrals made to police of potential or actual family violence. However, in the Commissions’ view, the value of an increase in the number of referrals to police and the number of subsequent investigations would need to be weighed against the potential harm done to victims who choose not to access services or seek help for fear the violence will be reported to police.

8.96 The Commissions share the concerns discussed above about the potential negative consequences of mandatory reporting of family violence against adults, and accordingly suggest that the effect of the NT laws be monitored and evaluated.[116] The following matters, among others, might be worth consideration:

  • variations in the number of reports made to police;
  • how many of these reports are then properly investigated;
  • victims’ responses (in the short and longer-terms) to the fact that the report was made and to the subsequent police investigation; and
  • any variation in the number of persons accessing services, including family violence, medical and counselling services, that could reasonably be attributed to mandatory reporting laws.

8.97 The results of this evaluation should be carefully reviewed by Tasmania, should it consider proclaiming the commencement of its mandatory reporting provision.

[77]Domestic and Family Violence Act 2007 (NT) s 124A.

[78] Ibid s 124A (4).

[79] The maximum penalty is $22,000: Ibid s 124A(1).

[80] Northern Territory, Estimates Committee, Legislative Assembly, 22 September 2010, Question Taken on Notice 3.8.

[81]Family Violence Act 2004 (Tas) s 38 has not been proclaimed to commence since the act received Royal Assent in 2004.

[82]Domestic and Family Violence Amendment Act 2009 (NT).

[83]Domestic and Family Violence Act 2007 (NT) s 124A.

[84] Ibid s 124A.

[85]Criminal Code (NT) s 1. Physical harm is defined in s 1A to include ‘unconsciousness, pain, disfigurement, infection with a disease and any physical contact with a person that a person might reasonably object to in the circumstances, whether or not the person was aware of it at the time.’ The NT Government Department of Health and Families has published a toolkit: Mandatory Reporting of Domestic and Family Violence: A Toolkit to Help Service Providers Meet the New Reporting Obligations, September 2009, <>.

[86]Domestic and Family Violence Act 2007 (NT) s 125.

[87]Family Violence Act 2004 (Tas) s 38(2) (uncommenced).

[88] Duties to report concerns for the safety or welfare of children generally apply to people who work in organisations that provide health, welfare, education, law enforcement, child care or residential services to children. Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 23, 27; Children, Youth and Families Act 2005 (Vic) ss 162, 184; Child Protection Act 1999 (Qld); Public Health Act 2005 (Qld) ss 158, 191; Education (General Provisions) Act 2006 (Qld) ss 365–366; Children and Community Services Act 2004 (WA) ss 3, 124B; Children’s Protection Act 1993 (SA) ss 6, 10–11; Children, Young Persons and Their Families Act 1997 (Tas) ss 3–4, 14; Children and Young People Act 2008 (ACT) ss 342, 356. In the NT, there is a duty to report some types of harm to children that applies to all persons, though there is a further duty that applies to health practitioners and other prescribed persons: Care and Protection of Children Act 2007 (NT) ss 13–16, 26. See also Ch 20 for a discussion of mandatory reporting of children’s exposure to family violence.

[89] See Domestic and Family Violence Act 2007 (NT) ss 5, 18 for definition of domestic violence and for when domestic violence orders may be made.

[90] Ibid s 125.

[91] Northern Territory, Parliamentary Debates, Legislative Assembly, 26 November 2008 (C Burns—Justice and Attorney-General).

[92] Ibid.

[93] Ibid.

[94] Tasmania, Parliamentary Debates, Legislative Assembly, 18 November 2004, 97 (J Jackson—Attorney General and Minister for Justice and Industrial Relations), 102.

[95] L Mills, ‘Killing Her Softly: Intimate Partner Abuse and the Violence of State Intervention’ (1999–2000) 113 Harvard Law Review 550, 562.

[96] Northern Territory, Parliamentary Debates, Legislative Assembly, 18 February 2009 (J Carney).

[97] Australian Domestic and Family Violence Clearinghouse, Response to Northern Territory Proposal for Mandatory Reporting of Domestic Violence by Health Workers (2008) <www.austdvclearinghouse.> at 14 September 2010.

[98] Northern Territory, Parliamentary Debates, Legislative Assembly, 26 November 2008 (C Burns—Justice and Attorney-General).

[99] Tasmania, Parliamentary Debates, Legislative Assembly, 18 November 2004, 97 (J Jackson—Attorney General and Minister for Justice and Industrial Relations), 102.

[100] Australian Association of Social Workers, ‘Mandatory Reporting of Family Violence in the NT Won’t Always Help Victims’ (Press Release, 7 October 2008).

[101] Parallel arguments are made in the context of allegations of sexual assault. See Ch 26.

[102] L Goodmark, ‘Law is the Answer? Do We Know That For Sure?: Questioning the Efficacy of Legal Interventions for Battered Women’ (2004) 23 St Louis Univ Publ Law Rev 7, 31.

[103] L Goodmark, ‘Autonomy Feminism: An Anti-Essentialist Critique of Mandatory Interventions In Domestic Violence Cases’ (2009) 37 Florida State University Law Review 1, 45.

[104] Ibid, 48.

[105] C Hanna, ‘The Paradox of Hope: The Crime and Punishment of Domestic Violence’ (1997–1998) 39 William and Mary Law Review 1505, 1556.

[106] Ibid, 1556.

[107] Confidential, Consultation, Darwin, 27 May 2010; Confidential, Consultation, Darwin, 26 May 2010.

[108] Confidential, Consultation, Darwin, 27 May 2010.

[109] Confidential, Consultation, Darwin, 26 May 2010.

[110] Confidential, Consultation, Darwin, 27 May 2010.

[111] Commissioner for Children (Tas), Submission FV 62, 1 June 2010.

[112]Convention on the Rights of the Child, 20 November 1989, [1991] ATS 4, (entered into force generally on 2 September 1990), art 19(1).

[113] L Mills, ‘Killing Her Softly: Intimate Partner Abuse and the Violence of State Intervention’ (1999–2000) 113 Harvard Law Review 550, 572, fn 101.

[114] See Domestic and Family Violence Act 2007 (NT) s 125.

[115] The purposes of the criminal law are discussed in Ch 4.

[116] The Commissions understand from consultations conducted in the NT that the mandatory reporting laws are being evaluated. See, eg, Confidential, Consultation, Darwin, 27 May 2010.