Protection order conditions and the criminal law

Types of conditions

The types of conditions that are authorised by family violence legislation to be imposed typically include any that the court considers necessary: to protect the victim and any child from family violence;^[3] or to encourage the person to accept responsibility for the violence committed against the victim, or to change his or her behaviour.^[4]

Directions not to breach the criminal law may be attached as conditions to a protection order. For example, conditions which provide that a person is not to threaten, assault or stalk another person, or damage another person’s property, essentially articulate what is, in any event, conduct typically prohibited by the criminal law. A condition to be of good behaviour is also essentially a condition to abide by the law. Other conditions, however, prohibit conduct which, but for the prohibition in the protection order, would not infringe the law. For example, persons are usually free to contact, communicate with, approach and locate family members, and free to enter and live in their own residence—conduct which can be proscribed by a protection order that includes an exclusion order.

Professor Rosemary Hunter’s study of the handling of family violence protection order proceedings in magistrates courts in Victoria found that the median hearing time for protection order applications, other than contested final orders, was three minutes.^[5] She observed that the speed with which protection order applications were dealt with resulted in judicial officers not giving particularised attention to the conditions attached to a protection order. She concluded that conditions were not tailored to the particular allegations of each case.^[6] The Commissions are interested in hearing whether this experience is common to other jurisdictions and, in particular, the extent to which protection order conditions are tailored to the circumstances of particular cases across the jurisdictions.

The application forms for protection orders in most jurisdictions set out the conditions that may be attached to the making of a protection order, with an option for applicants to tick the conditions which they seek. However, the application form for a protection order in Western Australia does not set out the conditions which may be imposed on the making of a protection order.

The Commissions consider that in making protection orders it is particularly important that judicial officers are able to impose conditions that proscribe conduct that is not otherwise criminal. All citizens are, in any event, under an obligation not to breach the criminal law. There are, of course, benefits in attaching conditions to protection orders that are, in essence, directions not to breach the criminal law. A breach of a protection order is a criminal offence, and as discussed later in this chapter, it may be easier to prove a breach than to prove the underlying offence to the requisite degree of proof.

In considering the conditions which courts can impose to proscribe conduct which is otherwise not criminal, the Commissions note that only the family violence legislation of Queensland includes express reference to a prohibition on locating or attempting to locate the victim. The Commissions consider that such a condition is of particular importance in the context of victims fleeing family violence and attempting to sever ties with those who have used violence against them. In the Commissions’ preliminary view, all state and territory family violence legislation should include a condition to this effect—and such a condition should be specified on all state and territory application forms for protection orders, thereby allowing victims the option of electing conditions to be considered by the court.

As a practical matter, it is important that applications for protection orders clearly set out the full range of conditions that a court may attach to a protection order. This acts as a checklist for the court and the victim applying for the order. The forms should be drafted in such a way as to enable victims to indicate the types of conditions they seek. For example, the application for a protection order in Western Australia should be amended to set out the range of conditions that a court may impose in making a protection order.

Exclusion orders

Family violence legislation makes provision for protection order conditions which allow a court to prohibit a person who has used violence from entering and remaining in a residence shared with the victim including, in some cases, the power to terminate an existing tenancy agreement and replace it with one for the benefit of the victim. In other words, a court can impose a condition requiring the person against whom the protection order is made to vacate the premises, notwithstanding any ownership rights in relation to such premises.

In some jurisdictions, including Victoria, Queensland, and NSW, courts are directed to consider specific requirements before making an exclusion order. These requirements are in addition to those considered in making a protection order. In other jurisdictions, the factors a court is to consider in making a protection order are the same regardless of whether the protection order includes an exclusion order. The Commissions consider that state and territory family violence legislation should address separately the factors which courts are required to take into consideration in making or declining to make an exclusion order—over and above the factors that are to be considered in making a protection order generally.

The combined effect of these two options for reform is to require courts to actively consider whether to make an exclusion order and may increase the likelihood of judicial officers making exclusion orders in appropriate circumstances. Judicial officers should be required to give reasons for not making an exclusion order where such an order has been sought. The family violence legislation of NSW provides an instructive model in this regard.

Making exclusion orders can impose severe hardship—a person who is excluded from the home may become homeless. Equally, not making an exclusion order in appropriate cases can cause severe hardship—women and children subjected to severe violence may need to flee the home. Escaping family violence has been identified as a leading cause of homelessness for women and children. The Commissions therefore consider that judicial officers should explicitly be required to consider the effect that making or declining to make such an order will have on the accommodation needs of all the parties to the proceedings and on any children. This approach is consistent with that recommended by the ALRC in its 1986 Report, Domestic Violence.^[7] The Commissions are interested in hearing views about whether police who make exclusion orders should also be required to take reasonable steps to secure temporary accommodation for the excluded person, as is the case in Victoria.

Only the Northern Territory family violence legislation contains an express presumption that where a victim, a person who has used family violence against the victim, and a child reside together, the protection of the victim and the child are best achieved by their living in the home. The presumption does not act to prevent a protection order including a condition allowing the person against whom the protection order is made from visiting the child at the home.^[8] Such a presumption acts to implement a central objective of the legislation referred to in the Second Reading Speech of the Domestic and Family Violence Bill 2007 (NT), namely ‘to ensure minimal disruption to the lives of families affected by violence’.^[9] Significantly, the presumption only operates where there is a child involved. It has no application in the case of family violence between partners living in the same residence without a child.

The Commissions are interested to hear:

• how the presumption in the Northern Territory family violence legislation is working in practice;
• whether the family violence legislation of other states and territories should include a similar presumption.

Rehabilitation and counselling conditions in protection orders

Five jurisdictions address the power of courts to attach conditions to protection orders involving either rehabilitation or counselling. Key differences between the jurisdictions include: whether such orders are mandatory or voluntary; whether they are available only on sentencing; and their effects.

The Commissions tend to the view that it is important for family violence legislation to expressly allow for courts making protection orders to impose conditions requiring persons to attend rehabilitation or counselling programs, where such persons are suitable and eligible to participate in such programs. A common purpose of family violence legislation should be to ensure that persons who use family violence accept responsibility or are made accountable for their conduct. One important way of achieving this objective is to endeavour to rehabilitate the offender and stop the cycle of violence. Rehabilitation programs are an essential measure for treating the causes rather than the symptoms of family violence.

Application forms for protection orders, in those jurisdictions where there are legislative provisions concerning the imposition of conditions relating to rehabilitation or counselling, do not generally set out conditions relating to rehabilitation or counselling. One exception is the application form for a protection order in Victoria which allows an applicant to indicate that she or he would like the court to encourage the person against whom the order is sought to contact the Men’s Referral Service.^[10] The Commissions also tend to the view that there may be some benefit in application forms for protection orders specifying conditions relating to rehabilitation or counselling—or that at least allow a victim to indicate whether she or he wishes the court to encourage the person who used family violence to contact an appropriate referral service. The Commissions are interested in hearing stakeholder views in this regard.

The Commissions are also interested in hearing whether, in practice, judicial officers in those jurisdictions whose family violence legislation does not specify expressly the imposition of rehabilitation or counselling programs as potential conditions attaching to a protection order—such as NSW and Queensland—in fact, impose such conditions as part of their general power to impose any orders that they consider to be necessary or desirable.

In certain jurisdictions, rehabilitation orders may be made as part of the criminal process in the pre-sentencing phase or on sentencing where offenders have committed family-violence related offences. The Commissions are interested in hearing whether, in practice, there are overlapping or conflicting obligations placed on persons as a result of conditions imposed by protection orders requiring attendance at rehabilitation or counselling programs and any orders to attend such programs as part of the sentencing process.

Other interactions between protection orders and sentencing

Taking protection order conditions into account in sentencing

The Commissions are interested in hearing whether, in practice, courts sentencing offenders for family-violence related offences are made aware of and take into account any existing protection order conditions to which the offender to be sentenced is or has been subject.

In the Commissions’ view it is appropriate for courts to consider any protection order conditions to which an offender is subject, where those conditions arise out of the same or substantially the same conduct giving rise to the prosecution for the offence. It is particularly relevant for courts to take into account those conditions which may have caused significant hardship—such as exclusion orders.

To avoid making overlapping orders concerning rehabilitation or counselling programs a court sentencing an offender must know whether the person has or is attending such a program pursuant to a protection order condition. It is also relevant, in this regard, for the court sentencing an offender for a family-violence related offence to take into account the duration of any protection order to which the offender is subject.

The Commissions note, however, that concern has been expressed about relying on attendance at rehabilitation programs as a mitigating factor in sentencing, and are interested in hearing other stakeholder views in this regard, as well as any suggestions about possible options for reform.

Place restriction orders

In Tasmania, a court may make an ‘area restriction order’ if it finds a person guilty of an offence. An ‘area restriction order’ is an order that the offender must not loiter in an area or class of area specified in the order at any time or during such periods as specified in the order. In NSW, place restriction orders are only available on sentencing for offences punishable by imprisonment for six months or more. A place restriction order prohibits the offender from frequenting or visiting a specified place or district for a specified term and can be made by the court if it is satisfied that it is reasonably necessary to make such an order to ensure that the offender does not commit any further offences.^[11]

Place restriction or area restriction orders imposed on sentencing for a family-violence related offence can overlap with or conflict with conditions attached to a protection order prohibiting or restricting a person’s access to certain premises. The Commissions are interested in hearing whether such interactions have arisen in practice.