The Commissions have been asked to consider the interaction between family violence laws and federal criminal law. One area where interaction may occur is where conduct which might give rise to a protection order also constitutes an offence under federal criminal law. For example, conduct such as threatening behaviour or harassment that can form the basis for a protection order under family violence legislation can also fall within the ambit of the following federal offences:
- using a carriage service to make a threat;
- using a carriage service to menace, harass or cause offence;
- using a postal or similar service to make a threat; or
- using a postal or similar service to menace, harass or cause offence.
Another area where overlap between family violence laws and federal criminal law may occur is in relation to conduct constituting economic abuse. For example, coercing a family member to claim a social security payment is recognised as economic abuse amounting to family violence in some jurisdictions. Such behaviour, could also constitute offences under:
- social security legislation; and
- the Criminal Code Act 1995 (Cth) relating to fraudulent conduct—such as obtaining a financial advantage by deception or making false or misleading statements in applications.
The Commissions are interested in ascertaining the frequency with which family violence laws intersect with offences in federal criminal law. The Commissions consider that one possible area where this could arise is in relation to sexual servitude offences under the Criminal Code (Cth), where the person committing the offence is in a defined family relationship with the victim.
The Commissions are also interested in hearing how, in practice, matters are dealt with that involve:
- an overlap between family violence legislation and federal criminal law; and
- a joint prosecution of state or territory and federal offences arising in a family violence context.
- The Commissions understand that the CDPP has little involvement in this regard, and that state and territory prosecutors will typically have carriage of such matters.
- an overlap between state or territory family violence legislation and federal criminal law; and
- a joint prosecution of state or territory and federal offences arising in a family violence context?
In particular, do state and territory prosecutors seek the consent of the Commonwealth Director of Public Prosecutions to prosecute federal offences arising in a family violence context, and inform it of the outcomes of any such prosecutions
The Commissions consider that it is important for the definition of family violence in family violence legislation to be broad enough to capture conduct the subject of potentially relevant federal offences that could form the basis for obtaining a protection order. One area where this could arise, for example, is in relation to the federal offence of sexual servitude.
Education and statistics
In the Commissions’ preliminary view, it is essential to establish a central database capturing the frequency of prosecutions of federal offences in the family violence context. The CDPP is the appropriate entity to establish and manage such a database, either by itself or in conjunction with other relevant bodies. For example, the Commissions note that the federal sentencing database was jointly established by the National Judicial College of Australia, the Judicial Commission of New South Wales and the CDPP. The maintenance of such a database would require the cooperation and collaboration of state and territory prosecutors involved in the prosecution of federal offences—including police and DPPs—for the purposes of data collection.
The maintenance of proper statistics would enable principled policy to be developed in this area. For example, interrogation of statistics on the prosecution of federal offences in the family violence context could reveal jurisdictional differences in the extent of prosecutions of certain offences, such as the telecommunications offences relating to making threats. This could highlight a need to investigate whether specific education and training programs need to be delivered to lawyers in certain jurisdictions or areas to educate them about federal laws of potential relevance to family violence.
- in addition to proceedings for the obtaining of a protection order under state or territory family violence legislation;
- jointly with a state or territory offence in a family violence context; and
- in the absence of any other criminal or civil proceeding.
- federal offences in a family violence context which they prosecute, including the outcomes of any such prosecutions;
- the prosecution of any federal offence in a family violence context conducted jointly with a prosecution of any state or territory family-violence related offence; and
- whether the prosecution of the federal offence is in addition to any protection order proceedings under state or territory family violence legislation.