Police duties to investigate and to apply for orders

9.49 In some jurisdictions police play an active role in applying to judicial officers for protection orders on behalf of victims. In most jurisdictions, police are empowered to apply for a protection order,[76] or to help a victim make an application.[77]

9.50 There are, however, significant differences across family violence legislation in respect of the obligations placed on police to take action where family violence is suspected.[78] In NSW, Queensland, and WA, family violence legislation places express obligations on police to investigate family violence. New South Wales and WA have the strongest legislative directions in relation to ‘pro-protection policing’.

9.51 In NSW, a police officer investigating a family violence matter is obliged to make an application for a protection order under family violence legislation if he or she suspects that a family violence offence or child-abuse related offence has been, is being, or is likely to be committed, against the person for whose protection the order would be made.[79] The legislation sets out the circumstances in which a police officer need not apply for an order, including where the victim intends to make the application. In such cases, a police officer must make a written record of his or her reasons for not making an application.[80]

9.52 Similarly, in WA a police officer is required to investigate whether an act of family violence is being, has been, or is likely to be committed if the police officer reasonably suspects that the act is a criminal offence or has put the safety of a person at risk.[81] After such investigation a police officer is required to make an application for a protection order, or a police order, or a written record of why neither of those actions was taken.[82]

9.53 In Queensland, if a police officer reasonably suspects that a person is one for whose protection a protection order under family violence legislation could be made, he or she is required to investigate, or cause to be investigated, the complaint or circumstance on which the reasonable suspicion is based until the officer is satisfied the suspicion is unfounded.[83] Following the investigation, a police officer is empowered, but not obliged, to apply for a protection order or take other action if the officer reasonably believes that the person needs protection and there is sufficient reason for the officer to take action.[84] The obligation to respond to domestic violence is also set out in the Queensland Police Operational Procedures Manual.[85]

9.54 In Victoria, the Code of Practice for the Investigation of Family Violence, issued by Victoria Police, requires police to apply for a protection order wherever the safety, welfare or property of a family member appears to be endangered by another, or a criminal offence is involved.[86]

9.55 In contrast, for example, in the ACT, police are not obliged to investigate on the basis of reasonable suspicion or to apply for protection orders.[87] ACT police are empowered to apply for emergency orders,[88] and are required in certain circumstances to make a written record of reasons for not applying for emergency orders.[89] ACT Policing has advised that it makes little use of emergency orders, but that this is not necessarily a negative position if there is a charge to proceed with. ACT Policing’s pro-arrest policy may mean that there is less reason for an emergency order to be made.[90] Other reasons are noted:

[Emergency orders] can also be difficult to obtain because the risk has to be imminent. There is narrow scope allowing for the application for an [emergency order]. While the use of [such orders] is low, it may be the fact that the situations in which police attend [do] not fit the criteria for an [emergency order].[91]

9.56 The Model Domestic Violence Laws contain a provision that requires a police officer to investigate whether an act of family violence has been, is being, or is likely to be, committed where that police officer believes or suspects such circumstances exist. The provision does not require a police officer to apply for a protection order following such investigation but requires a written record of the reasons for not doing so.[92] The proposal attracted criticism—from Karen Wilcox, for example:

Although tightening of police … responsibilities … was canvassed during the Model Laws development stage … states and territories have been slow to adopt provisions which require ‘pro-protection’ action on the part of police … Given the current emphasis on violence prevention in national and state/territory domestic violence public policy, this oversight is anomalous.[93]

Submissions and consultations

9.57 The Consultation Paper considered both police duties to investigate family violence and police duties to apply for protection orders. The duties are related: a duty to apply for an order will often presuppose some investigation; and the outcome of an investigation can be that police will apply for a protection order.

Duty to investigate

9.58 In the Consultation Paper, the Commissions proposed that state and territory family violence legislation should:

(a) impose a duty on police to investigate family violence where they have reason to suspect or believe that family violence has been, is being, or is likely to be committed; and

(b) require police to make a record of their reasons for not taking any action—such as applying for a protection order—if after investigating they decide not to take action.[94]

9.59 This was broadly endorsed by almost all submissions that addressed the proposal. Many submitted that police should be obliged to investigate family violence.[95] National Legal Aid said that placing a duty on police takes the onus off victims to apply for orders. Western Australia adopted a similar proposal in 2004, it said, and this ‘has played a significant role in improving police response to family violence’.[96]

9.60 The Domestic Violence Prevention Council (ACT) was concerned about police having a duty to investigate where family violence was simply ‘likely’ to be committed—that this might be too broad. Instead, police should have an obligation to investigate ‘where they suspect or believe that a family violence offence is being committed’.[97]

9.61 Some stakeholders emphasised that police must receive family violence and cultural awareness training.[98] They need to ‘understand the dynamics of the relationships and difficulties for women to take action against their partner without close support’.[99]

9.62 There was also support for the proposal that police be required to record their reasons for not taking further action.[100] It was submitted that this would increase police accountability.[101] The records could also be used in future investigations or applications for protection orders,[102] and they would provide useful data for reporting and trend analysis.[103] The Domestic Violence Prevention Council (ACT) submitted that the record

should extend to documentation of reasons as to why an arrest wasn’t made (if appropriate) and why criminal charges were not pursued. This may include noting whether there are concerns for the safety and welfare of the person reporting an incident and how safety and welfare concerns have been addressed.[104]

9.63 One submission supported the proposal because it would make it more onerous for police not to take action;[105] another—a partner violence counsellor—disagreed, and thought it was important that officers not think that taking further action is the easier or safer option.[106]

9.64 This counsellor also suggested that if a perceived victim does not want the police to take any further action, they could be asked to sign a document to that effect, away from any potential controlling influence.[107] Another stakeholder submitted that, to the contrary, the victim’s refusal to take further action should not be an acceptable reason not to take action.[108]

9.65 There were some concerns about whether police had adequate resources to always investigate family violence properly,[109] and some said it was important to minimise any administrative burden on police.[110]

Duty to apply for a protection order

9.66 In the Consultation Paper, the Commissions asked in what circumstances police should be required to apply for protection orders on behalf of victims.[111]

9.67 Police applying for protection orders was said to be a ‘useful strategy’.[112] National Legal Aid submitted that it could help to shift the responsibility away from the victim and to a target less subject to pressure, while sending a message to the community that family violence will not be tolerated and victims will be supported.[113] Others suggested that the duty should be supported by education, training and resources,[114] and that there should be a ‘comprehensive and proactive system of supervision’.[115] Monitoring was said to be important because sometimes police still fail to take action.[116]

9.68 A number of different circumstances were suggested for when police should be required to apply for an order. Some identified the types of victims for whom police should apply for orders:

  • children—either in direct danger or at risk of exposure to violence;[117]
  • people with an intellectual disability or ‘complex needs such as drug and alcohol or mental illness’;[118]
  • older persons;[119] and
  • people ‘traumatised or psychologically damaged by exposure to abuse, especially victims of repeat assaults’.[120]

9.69 Other submissions identified various circumstances in which police should apply for orders:

  • when necessary to protect the safety of the victim;[121]
  • to preserve the victim’s property;[122]
  • where a domestic violence offence has occurred;[123]
  • where a person expresses reasonable fear of another person;[124]
  • where it is likely that the violence will occur in the future;[125]
  • where the victim is fearful of applying for the order themselves;[126]
  • where the victim ‘appears unable to do so for him or herself because, for example, he or she is under the influence of alcohol or other drugs or obvious mental disorder;’[127] and
  • where someone appears to be ‘menacingly coercing or otherwise influencing the victim to not make a complaint’.[128]

9.70 The Queensland Law Society thought the ‘statutory balance’ under the Queensland Act was appropriate.[129] The Wirringa Baiya Aboriginal Women’s Legal Centre supported the NSW model.[130]

9.71 Differing views were expressed in relation to victim consent—some saying consent was necessary, others that it was not. There were concerns about issuing protection orders for people who say they do not need protection. Courts ‘should be informed if the protected person does not agree’, one stakeholder submitted.[131] Others went further, and submitted that police must have the consent of the victim to institute any proceedings, because

to pursue such an order without the victim’s consent will be futile and will once again place the victim under the control of another rather than giving them the power to make their own decisions.[132]

9.72 One stakeholder, who identified herself as a survivor of family violence, did not support this proposal because ‘at times the victim knows instinctively that the serving of a protection order would be like ‘a red rag to a bull’’.[133]

9.73 One stakeholder suggested the police should have to apply for an order ‘with the consent of the victim, and without the consent of the victim where the victim’s life or safety is at risk’.[134]

9.74 Some submitted that police must have some discretion; there should be some room to manoeuvre.[135] Others emphasised the importance of victims being able to apply to the court directly for an order, without involving the police.[136] As noted below, this might be particularly important for Indigenous women:

In business hours where women prefer to access an [Aboriginal and Torres Strait Islander] or mainstream legal service for assistance, and where this assistance is available, the women should be able to exercise this option.[137]

Location of duties

9.75 In the Consultation Paper, the Commissions proposed that a duty to investigate family violence should be set out in state and territory family violence legislation. Those who supported the proposal presumably agreed that it should be in legislation. Women’s Legal Services (NSW) specifically submitted that the duty to investigate should be set out in legislation, rather than just in policy.[138]

9.76 The Victorian Government, however, submitted that a duty for police to investigate belongs in codes of practice, rather than in legislation.[139] Victoria Police submitted that a legal duty to investigate family violence would be ‘inconsistent with the overall response to investigate all other offences where a legal duty is not imposed’.[140]

9.77 The Commissions also asked whether a requirement to apply for protection orders on behalf of victims should be imposed by state and territory family violence legislation or by police codes of practice.[141] Some stakeholders said the requirement should have a legislative basis;[142] codes of practice are ‘difficult to monitor and enforce—legislation is preferable’;[143] and not all police consistently follow codes of practices.[144] One legal service provider said the requirement should be in legislation for the sake of ‘transparency, enforceability, clarity and consistency’.[145] Another emphasized that, by putting the duty in legislation and making it law,

police are more likely to actively pursue their obligation and take notice of the requirement … Having statutory force could also reassure the police that they will not be subject to adverse consequences.[146]

9.78 Most stakeholders who said the requirement should be in legislation, said it should also be in codes of practice. ‘It may be preferable to include broad principles in legislation with a requirement for a code of practice to support the application of those principles that is subject to regular review’.[147]

9.79 The Victorian Government, on the other hand, did not support the introduction in legislation of a set of circumstances in which police should apply for an order, as this was the role of codes of practice, police training and policy:[148]

The Victoria Police Code of Practice for the Investigation of Family Violence outlines the circumstances in which police are required to apply for a family violence intervention order on behalf of victims, which is based on a comprehensive family violence risk assessment.[149]

Commissions’ views

Duty to investigate

9.80 Police should be required to investigate family violence where they have reason to believe or suspect family violence has been, is being, or is likely to be committed, as suggested in the Model Domestic Violence Laws. This duty should be imposed either in family violence legislation or in police codes of practice and should be supported by training and education.

9.81 A duty to investigate relieves victims of some of the pressure of dealing with family violence; they are no longer solely responsible for securing their protection and the protection of their children. A duty to investigate accomplishes this without taking from victims all control over their situation, and allows police to consider properly the needs and wishes of victims before taking further action.

9.82 The Commissions maintain that the duty should include a duty to investigate where family violence is even simply ‘likely’ to be committed, as well as where it has been or is being committed. According to the most frequently cited exposition of the word, ‘likely’ can, in some contexts,

mean ‘probably’ … that is to say, more likely than not or more than a 50 per cent chance. It can also, in an appropriate context, refer to a real or not remote chance or possibility, regardless of whether it is less or more than 50 per cent.[150]

9.83 The lower standard seems appropriate where police assess a risk of family violence—particularly if the family violence includes physical or sexual assault or danger to children. If a police officer believes there is a real or not remote chance or possibility of family violence, the officer should investigate. This duty only becomes clearer and more pressing if the officer believes there is a greater than 50% chance of family violence. It is important for police to try to prevent family violence, not simply respond after it has happened.

9.84 However, if the definition of family violence were expanded, and more relationships were captured by the definition of family,[151] there might be more incidents of family violence to investigate. Another consequence of a duty to investigate wherever police suspect any family violence—that is, behaviour that causes fear, or that coerces or controls a family member, including economic and emotional abuse—is likely to occur, might be an increase in the potential number of investigations. For police to accommodate such responsibilities, a significant increase in resources is desirable. However, police codes of practice and training should also equip police to assess efficiently and responsibly a person’s need for protection, and to respond accordingly.

9.85 If police choose not to take action when they find family violence, or a likelihood of family violence, they should record their reasons for not taking action—for example, their reasons for not issuing or applying for a protection order and for not charging or arresting a person who has committed a family violence crime. This is the approach advocated in the Model Domestic Violence Laws and that has been adopted by a small number of jurisdictions. Such records might be valuable in future investigations; they could be used by more senior officers to assess whether police are making appropriate decisions about when to take further action; and the records might also be a good source of data for higher-level analysis. To ensure police officers may perform their duties efficiently, the process for recording reasons should not be made administratively burdensome.

Duty to apply for a protection order

9.86 The Commissions also suggest that, in appropriate circumstances, police have a duty to apply to a court or a judicial officer for a protection order. Many of the advantages of police being required to investigate family violence, as identified by stakeholders, were also cited as advantages of police being required to apply for protection orders in some circumstances. When a police officer applies for an order, it relieves a victim of the need to do so. It might also mean the aggressor will be more likely to (wrongly) blame the police for the order, rather than (wrongly) blame the victim.

9.87 Submissions did not reveal a clear picture of precisely when the police should be required to apply for a protection order. There may be some circumstances in which it is quite clear that they should: the most straightforward are where the victim asks the police to apply for an order or where the victim is in clear and imminent danger of physical or sexual assault.

9.88 The need for protection will also be more pressing where the violence is criminal. The Commissions recommend in Chapter 11 that judicial officers should be able to issue a protection order at any stage of a criminal proceeding that relates to family violence—including prior to a plea or finding of guilt. To some extent, this recommendation may alleviate the need to require police always to apply for a protection order for victims of criminal family violence.

9.89 However, the Commissions are not convinced that there should be a very broad, fixed set of circumstances in which police must always apply for a protection order. It does not seem appropriate to require police to apply routinely for an order whenever there has been an incident of family violence or whenever there is some likelihood of future family violence—particularly if the victim, without apparent coercion or intimidation, has made it clear that he or she does not need protection in this way. The Commissions therefore do not prescribe a list of particularly vulnerable victims for whom police must always apply for an order. Similarly, the Commissions do not prescribe a set of circumstances in which police must always apply for an order. However, police codes of practice, education and training should give police guidance on this matter.

9.90 This is not to say police should not investigate the matter. The circumstances in which police have a duty to investigate family violence are broader than those in which they should apply for a protection order. Investigations of family violence—during which officers pay close attention to the victim; listen to his or her needs; assess danger—will often best reveal whether the police should apply for a protection order or take any other action.

Recommendation 9–2 State and territory family violence legislation and/or police codes of practice should impose a duty on police to:

  1. investigate family violence where they believe family violence has been, is being, or is likely to be committed; and
  2. record when they decide not to take further action and their reasons for not taking further action.

Indigenous-specific support for protection order applications

9.91 Arguments for and against a more active police role in applying for protection orders were canvassed by the Victorian Law Reform Commission (VLRC) in its report, Review of Family Violence Laws.[152] One disadvantage identified in a submission to that review is that Indigenous peoples may be reluctant to seek assistance for family violence if most applications are brought by police.[153]

9.92 The VLRC expressed the view that ‘if the system is going to be flexible and responsive to victims’ needs, it is essential that victims can apply for a [protection order] without involving the police’.[154] In particular, it recommended increased Indigenous-specific support services in court to enable Indigenous people to apply for a protection order without police involvement.[155]

Submissions and consultations

9.93 In the Consultation Paper, the Commissions asked whether all state and territory governments should ensure that there are Indigenous-specific support services in courts to enable Indigenous people to apply for protection orders without police involvement.[156] In response, nearly all submissions answered the question in the affirmative,[157] with one saying that Indigenous people should be consulted about what is needed.[158] A range of views was evident in submissions.

9.94 Some said that Indigenous women were often reluctant to engage with police[159] and ‘to avail themselves of protection orders’.[160] They need ‘a great deal of support around applying for a protection order’.[161] It was submitted that this might be due to:

  • the ‘historical relationship between police and Aboriginal people’;
  • a ‘distrust of police’;
  • fear of authorities;
  • ‘fear of community reprisals’; and
  • fear of children being removed from their families.[162]

9.95 One Indigenous legal service said that applying for protection orders is time-consuming and complicated and therefore restricts access to justice.[163] Some of the barriers to reporting sexual assault, discussed in Chapter 26, might also partly explain why some Indigenous women may be reluctant to approach the police.

9.96 Not all submissions agreed that Indigenous women were reluctant to engage with the police. Stubbs supported the proposal, but said it should not be used as an excuse to neglect Indigenous victims. Indigenous people have criticised police, Stubbs said, for too often ‘being unresponsive to the needs of Indigenous victims’.[164]

9.97 Most of the Indigenous women that speak to the Wirringa Baiya Aboriginal Women’s Legal Centre want the police to be involved, the Centre submitted. The women want to be relieved of the responsibility for making a decision about the order—and of the pressure exerted by ‘the offender, his family or community’. But the police response ‘must be appropriate, responsive, respectful and culturally sensitive’.[165]

9.98 The Victorian Government submitted that it supports initiatives that provide additional assistance to groups over-represented in the justice system. It referred to the Koori Family Violence Court Support Project, a pilot project now under development that aims to improve the capacity of the Magistrates’ Court to

provide a culturally appropriate response for family violence cases in the Koori community by developing partnerships with local Indigenous services, providing access to support for both Indigenous victims and offenders of family violence, and implementing training in Koori-specific family violence issues in the courts.[166]

9.99 The Queensland Government said it would consider the issues raised by this question in the context of the Queensland Government Strategy and recommendations made by Professor Chris Cunneen.[167] It also said that it ‘currently funds a number of services which provide court support to women affected by domestic and family violence’:

Some of these services are able to provide assistance to applicants in completing applications for domestic violence orders. The Australian Government funds Family Violence Prevention Centres which offer assistance to Aboriginal and Torres Strait Islander victims of domestic and family violence in regional and remote areas in Central, North and Far North Queensland. Legal advice and assistance is also provided by Legal Aid Queensland, the Aboriginal and Torres Strait Islander Legal Service and Community Legal Centres.[168]

9.100 Though Indigenous specific support services should be available, it was submitted, Indigenous persons should not have to use them if they do not want to—victims might be related to Indigenous court workers or they might be concerned about confidentiality, particularly in remote areas.[169]

Aboriginal women want to be able to access mainstream services that are sensitive to their needs and culturally appropriate as well as have the option of using Indigenous specific services. The choice should be the women’s choice.[170]

9.101 Many submissions stressed that Indigenous victims of family violence need more than Indigenous-specific court services to help them apply for protection orders. They also need support well before they go to court.[171] Indigenous women may not access the Aboriginal Legal Service, it was submitted, because the service is seen to act for perpetrators.[172] Hence, various services need to be established, expanded or given more funding—particularly in areas of greatest need.[173] These services include:

  • advocacy and court services for Indigenous victims of family violence, such as the Women’s Domestic Violence Court Advocacy Services;[174]
  • Indigenous women’s programs;[175]
  • Aboriginal and Torres Strait Islander family violence prevention legal centres;[176]
  • Aboriginal and Torres Strait Islander women’s legal services;[177]
  • outreach support services for remote courts;[178]
  • Aboriginal and Torres Strait Islander court liaison officers in local courts;[179] and
  • Indigenous support services in police stations.[180]

Commissions’ views

9.102 All victims of family violence should be able to apply for protection orders without necessarily involving the police. Victims who fear, distrust or simply dislike the police—with or without good reason, and even for fear of being arrested themselves—should still be able to obtain a family violence protection order. The process should be as simple and straightforward as possible; services should be put in place to help victims apply for orders. There is a particular need for Indigenous-specific support services in courts. Some victims from particular cultural and linguistic backgrounds might also need extra assistance to apply to a court for an order themselves. As Dr Heather Douglas notes, in a related context:

women from non-English speaking backgrounds may experience linguistic and cultural issues in their dealings with police. Uncertain immigration status may also impact on a victim’s willingness to involve police.[181]

9.103 The Commissions agree, however, that victims should not be automatically referred to culturally-specific services. They may feel they do not need extra help, or they may simply prefer to use ‘mainstream’ services for other reasons. However, special services should be available and should be offered to those who might need them.

9.104 As stakeholders have pointed out in other contexts, the power of a protection order often depends on the willingness of police to enforce its conditions; victims who will not call police to have their orders enforced might therefore compromise their own safety. But some victims who prefer not to ask police to apply for an order may nevertheless be prepared to call upon the police to enforce the order. In any event, a protection order can protect victims even if police are not called upon to enforce it. Victims may threaten to call the police if the order is breached. The subject of the order might obey it anyway. Further, as outlined above, there are many benefits of victims and aggressors attending court for an order: for example, parties can have their say; aggressors can be censured; and parties can be referred to services and counselling programs.

9.105 If relations between police and Indigenous people are poor in some areas—as submissions suggest they are—then concerted efforts should be made by police and Indigenous communities to repair those relations and build trust. But even where relations are strong and positive, particular victims of family violence might prefer to apply for a protection order without involving police. This choice should be respected and fostered with practical assistance.

Recommendation 9–3 State and territory governments should ensure that support services are in place to assist persons in need of protection to apply for a protection order without involving police. These should include services specifically for:

  1. Indigenous persons; and
  2. persons from culturally and linguistically diverse backgrounds.

[76] See, eg, Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 20(1)(a); Family Violence Act 2004 (Tas) s 15(2)(a); Domestic Violence and Protection Orders Act 2008 (ACT) s 18(2); Domestic and Family Violence Act 2007 (NT) s 28(1)(c).

[77]Domestic Violence and Protection Orders Act 2008 (ACT) s 18(2).

[78] Australian Government Solicitor, Domestic Violence Laws in Australia (2009), 29.

[79]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 49.

[80] Ibid.

[81]Restraining Orders Act 1997 (WA) s 62A.

[82] Ibid s 62C.

[83]Domestic and Family Violence Protection Act 1989 (Qld) s 67(1).

[84] Ibid s 67(2).

[85] Queensland Government, Submission FV 229, 14 July 2010.

[86] Victoria Police, Code of Practice for the Investigation of Family Violence (2005), [5.3.2]. The Code has led to a significant increase in police applications for protection orders: Victorian Law Reform Commission, Review of Family Violence Laws: Report (2006) 145 (citations omitted). The VLRC has expressed the view that with effective implementation of the Code, the addition of a legislative obligation is not yet appropriate: Victorian Law Reform Commission, Review of Family Violence Laws: Report (2006), 149.

[87] Australian Government Solicitor, Domestic Violence Laws in Australia (2009), 30.

[88]Domestic Violence and Protection Orders Act 2008 (ACT) s 68.

[89] Ibid s 83.

[90] ACT Policing, Correspondence, 15 March 2010.

[91] Ibid. The ACT police’s role in the ACT’s Family Violence Intervention Program—a coordinated criminal justice response to family violence—is discussed in Ch 29.

[92] Domestic Violence Legislation Working Group, Model Domestic Violence Laws (1999), s 8.

[93] K Wilcox, Recent Innovations in Australian Protection Order Law: A Comparative Discussion (2010), prepared for the Australian Domestic and Family Violence Clearinghouse, 12.

[94] Consultation Paper, Proposal 5–5.

[95] National Legal Aid, Submission FV 232, 15 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Australian Domestic and Family Violence Clearinghouse, Submission FV 216, 30 June 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; T McLean, Submission FV 204, 28 June 2010; Confidential, Submission FV 198, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 171, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Confidential, Submission FV 162, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 125, 20 June 2010; Domestic Violence Prevention Council (ACT), Submission FV 124, 18 June 2010; Victorian Government, Submission FV 120, 15 June 2010; Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council Domestic and Family Violence Service, Submission FV 117, 15 June 2010; K Johnstone, Submission FV 107, 7 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 81, 2 June 2010 Confidential, Submission FV 78, 2 June 2010; Confidential, Submission FV 77, 2 June 2010; Confidential, Submission FV 71, 1 June 2010; C Pragnell, Submission FV 70, 2 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010; M Condon, Submission FV 45, 18 May 2010.

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

[97] Domestic Violence Prevention Council (ACT), Submission FV 124, 18 June 2010.

[98] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[99] Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council Domestic and Family Violence Service, Submission FV 117, 15 June 2010.

[100] National Legal Aid, Submission FV 232, 15 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Australian Domestic and Family Violence Clearinghouse, Submission FV 216, 30 June 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; Confidential, Submission FV 198, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 171, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Confidential, Submission FV 162, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 125, 20 June 2010; Domestic Violence Prevention Council (ACT), Submission FV 124, 18 June 2010; Victorian Government, Submission FV 120, 15 June 2010; Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council Domestic and Family Violence Service, Submission FV 117, 15 June 2010; K Johnstone, Submission FV 107, 7 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 81, 2 June 2010; Confidential, Submission FV 77, 2 June 2010; Confidential, Submission FV 71, 1 June 2010; C Pragnell, Submission FV 70, 2 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010; M Condon, Submission FV 45, 18 May 2010.

[101] Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010.

[102] National Legal Aid, Submission FV 232, 15 July 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.

[103] Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010; T Searle, Submission FV 108, 2 June 2010.

[104] Domestic Violence Prevention Council (ACT), Submission FV 124, 18 June 2010.

[105] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[106] T McLean, Submission FV 204, 28 June 2010.

[107] Ibid.

[108] C Pragnell, Submission FV 70, 2 June 2010.

[109] Confidential, Submission FV 128, 22 June 2010; K Johnstone, Submission FV 107, 7 June 2010.

[110] T McLean, Submission FV 204, 28 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010.

[111] Consultation Paper, Question 5–7.

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

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

[114] Ibid; J Stubbs, Submission FV 186, 25 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[115] Women’s Legal Services Australia, Submission FV 225, 6 July 2010.

[116] Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.

[117] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Australian Domestic and Family Violence Clearinghouse, Submission FV 216, 30 June 2010; T McLean, Submission FV 204, 28 June 2010; N Ross, Submission FV 129, 21 June 2010; K Johnstone, Submission FV 107, 7 June 2010.

[118] Australian Domestic and Family Violence Clearinghouse, Submission FV 216, 30 June 2010.

[119] Ibid.

[120] Ibid.

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

[122] Ibid.

[123] Legal Aid NSW, Submission FV 219, 1 July 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[124] Legal Aid NSW, Submission FV 219, 1 July 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[125] Legal Aid NSW, Submission FV 219, 1 July 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[126] K Johnstone, Submission FV 107, 7 June 2010.

[127] T McLean, Submission FV 204, 28 June 2010.

[128] Ibid.

[129] Queensland Law Society, Submission FV 178, 25 June 2010. The Queensland test is described above.

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

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

[132] Gosnells Community Legal Centre Inc, Submission FV 56, 31 May 2010.

[133] M Condon, Submission FV 45, 18 May 2010. See also Confidential, Submission FV 89, 3 June 2010.

[134] The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010.

[135] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010.

[136] Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010.

[137] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

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

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

[140] Ibid.

[141] Consultation Paper, Question 5–7.

[142] National Legal Aid, Submission FV 232, 15 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Australian Domestic and Family Violence Clearinghouse, Submission FV 216, 30 June 2010.

[143] Australian Domestic and Family Violence Clearinghouse, Submission FV 216, 30 June 2010.

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

[145] Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.

[146] Gosnells Community Legal Centre Inc, Submission FV 56, 31 May 2010.

[147] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010. See also Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; N Ross, Submission FV 129, 21 June 2010.

[148] Victorian Government, Submission FV 120, 15 June 2010. See also Confidential, Submission FV 184, 25 June 2010.

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

[150] Deane J in Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367.

[151] See Chs 5, 7.

[152] See Victorian Law Reform Commission, Review of Family Violence Laws: Report (2006), [5.80]–[5.93].

[153] Ibid, [5.89] (citation omitted).

[154] Ibid, [5.91].

[155] Ibid, [5.92].

[156] Consultation Paper, Question 5–8.

[157] For example, Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Australian Domestic and Family Violence Clearinghouse, Submission FV 216, 30 June 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010.

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

[159] Legal Aid NSW, Submission FV 219, 1 July 2010; Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

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

[161] Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010.

[162] Women’s Legal Services NSW, Submission FV 182, 25 June 2010 quoting NSW Police Force, Code of Practice for the NSW Police Force Response to Domestic and Family Violence (2009) <http://www.police.nsw.gov.au/__data/assets/pdf_file/0016/165202/code_of_practice_nswpf_response
_domestic_family_violence.pdf> at 15 September 2010, 39.

[163] Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010.

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

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

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

[167] Queensland Government, Submission FV 229, 14 July 2010. See also C Cunneen, Alternative and Improved Responses to Domestic and Family Violence in Queensland Indigenous Communities (2009).

[168] Queensland Government, Submission FV 229, 14 July 2010.

[169] Australian Domestic and Family Violence Clearinghouse, Submission FV 216, 30 June 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; K Johnstone, Submission FV 107, 7 June 2010.

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

[171] Legal Aid NSW, Submission FV 219, 1 July 2010.

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

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

[174] Legal Aid NSW, Submission FV 219, 1 July 2010.

[175] Women’s Legal Services Australia, Submission FV 225, 6 July 2010.

[176] Ibid; Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010.

[177] Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010.

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

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

[180] Ibid.

[181] H Douglas, ‘The Criminal Law’s Response to Domestic Violence: What’s Going On?’ (2008) 30 Sydney Law Review 439, 453 (citations omitted).