Prosecuting federal offences in a family violence context

8.8 The Commissions have been asked to consider the interaction of federal criminal laws with state and territory family violence laws. In Chapter 4, the Commissions consider federal offences committed in a family violence context, and the importance of capturing these offences in definitions of family violence. One point at which federal criminal laws and state and territory family violence laws interact is where federal offences committed in a family context are prosecuted—perhaps after or alongside the obtaining of a civil protection order or with state and territory offences also committed in a family violence context. Federal offences committed in a family violence context may be prosecuted by the Commonwealth Director of Public Prosecutions (CDPP), or by state and territory prosecutors—with or without the consent of the CDPP. Later in this chapter, the Commissions consider more broadly how decision makers decide whether to prosecute family violence crimes.

Submissions and consultations

8.9 In the Consultation Paper, the Commissions asked how matters were dealt with in practice that involve:

  1. an overlap between state or territory family violence legislation and federal criminal law; and
  2. a joint prosecution of state or territory and federal offences arising in a family violence context.

The Commissions also asked whether state and territory prosecutors sought the consent of the CDPP to prosecute federal offences arising in a family violence context, and whether they informed the CDPP of the outcome of any such prosecutions.[1]

8.10 Only a few submissions addressed this question. Persons are charged with federal offences relating to the use of carriage and postal services to, among other things, make threats and harass.[2] For example, a person may be charged with a carriage service offence for sending abusive text messages.[3]

8.11 State and territory prosecutors typically have carriage of these matters, and it seems the CDPP is not involved or notified of the outcome.[4]

Regularly such charges are withdrawn on a plea to substantive charges under state law. Part of the reason for this is the complexity of imposing a state sentence and a Commonwealth sentence in the same case.[5]

8.12 South Australian state prosecutors do not appear to consider breaches of Commonwealth legislation.[6] The Queensland Law Society submitted that any prosecutions for the improper use of mail, which appear to be rare, are undertaken by the Australian Federal Police and prosecutions for carriage service offences are undertaken by Queensland Police.[7] In New South Wales (NSW) such federal offences are sometimes prosecuted in tandem with protection order proceedings.[8] The CDPP advised that arrangements for joint trials involving state or territory and federal offences arising in a family violence context are working well in practice.[9]

Research and education about federal offences

8.13 In the absence of centralised statistics, it is not clear how often federal offences are committed or prosecuted in a family violence context. Such offences could be prosecuted on their own or in conjunction with state or territory offences. The prosecution of the federal offences could also stem from, or prompt, family violence protection order proceedings.

8.14 In a 2010 brief on ‘Factors which influence the sentencing of domestic violence offences’, the NSW Bureau of Crime Statistics and Research looked at domestic violence related offences finalised in NSW Local and District Courts between January 2008 and June 2009. The only federal offence identified was using a carriage service to menace, harass or offend,[10] of which it found 127 cases.[11]

Submissions and consultations

8.15 In the Consultation Paper, the Commissions proposed that the CDPP—either by itself or in conjunction with other relevant bodies—establish and maintain a centralised database of statistics that records federal offences prosecuted in a family violence context.[12] The Commissions also proposed that state and territory prosecutors provide the CDPP with specified information to facilitate the establishment and maintenance of this database.[13]

8.16 These proposals were generally supported.[14] However, the Australian Government Attorney-General’s Department submitted that the Consultation Paper had not identified a practical need for the database and had not sufficiently justified the significant resources the database would demand.[15] Similarly, National Legal Aid suggested that ‘limited resources would be best directed elsewhere’, even though it submitted that ‘Commonwealth provisions in relation to using carriage services to make threats, menace, harass or cause offence are not prosecuted as frequently as they occur’.[16]

8.17 The CDPP said it had a database that recorded the prosecutions it conducted, but that this database does not delineate ‘the small number of offences committed in a family violence context’ and would not be suitable. The CDPP suggested the Australian Institute of Criminology or the Australian Institute of Family Studies might be better suited to maintaining any new database of federal offences prosecuted in a family violence context.[17]

8.18 In the Consultation Paper, the Commissions also asked whether there was a need for lawyers involved in family violence matters to receive education and training about the potential role of federal offences in protection order proceedings and how this could best be achieved.[18]

8.19 Most submissions supported this proposal.[19] Some of those who supported the proposal said training on all matters of family violence and its dynamics was important.[20] Two stakeholders submitted that police and directors of public prosecution (DPPs) should also be trained to actively prosecute these offences;[21] another said the magistracy and judiciary should also be trained.[22]

8.20 A number of submissions suggested how this training might be delivered: ‘through the usual Community Legal Education channels, in particular the Family Law Section of the Law Council of Australia,’[23] for example, or through state law societies,[24] or it could be included in a program of accreditation for family violence and sexual assault specialists that some are now considering.[25]

8.21 One submission, however, said training was not necessary because ‘it happens in a relatively small minority of cases’.[26]

Commissions’ views

8.22 The Time for Action report stressed the importance of collecting reliable data about family violence—of ‘building the evidence base’:

Data relating to violence against women and their children in Australia is poor. Data on services sought by, and provided to, victims are not readily available, and the way in which information is reported is generally inconsistent and does not allow for a comprehensive understanding of violence against women.[27]

8.23 In the Commissions’ view, it is also important to capture data about the prosecution of federal offences committed in a family violence context. Without adequate statistics and research, it is difficult to assess how often these offences are committed in the context of family violence, and how often they are prosecuted. Capturing the data should highlight the extent of the problem and could be used to develop principled policy. The information might highlight differences between how rigorously each jurisdiction prosecutes certain federal offences and suggest the need for education and training in certain jurisdictions and areas.

8.24 Capturing information about when these offences are raised in proceedings related to family violence, rather than simply when the offences are actually successfully prosecuted, might also provide a more useful picture of the role this conduct plays in family violence.

8.25 The Commissions recognise that capturing this information might be difficult and therefore do not prescribe any particular method. In the Consultation Paper, the Commissions suggested the CDPP could establish and maintain a database and that state and territory prosecutors could send relevant information to the CDPP. However, the information could be captured in other ways. The Australian Institute of Criminology might be a more appropriate agency to collect this data, given its stated functions and aims:

The Australian Institute of Criminology is Australia’s national research and knowledge centre on crime and justice. We seek to promote justice and reduce crime by undertaking and communicating evidence-based research to inform policy and practice.[28]

8.26 If specialist family violence lists were adopted, as the Commissions discuss in Chapter 32, then courts might be able to mark and identify files with information about any federal crimes prosecuted or alleged to have been committed in a family violence context.

8.27 Federal offences committed in a family violence context should also be more widely recognised and understood amongst lawyers, police, prosecutors and the judiciary. Arguably, they should also be more widely prosecuted, assuming the criteria for instituting federal prosecutions are met. The Commissions discuss below how decision makers decide whether to prosecute state and territory offences, such as assault, committed in a family violence context. Where a person might have committed multiple crimes, decision makers will also decide which particular crime or crimes to prosecute—and in doing so, should ensure that the charges they decide upon properly reflect the nature and seriousness of the criminal conduct for which they have evidence.

8.28 A proper and informed decision about whether to prosecute should include at least a consideration of federal offences that might have occurred. The fact that these offences do not seem to be widely prosecuted when they are committed in a family violence context, might not itself suggest widespread ignorance of the offences. Decision makers might choose to focus on state or territory crimes for good reason. But if decision makers choose not to prosecute an available federal offence, it should be a deliberate decision, made by applying a test such as the two-stage test that must be satisfied under the CDPP’s prosecution policy:

  • there must be sufficient evidence to prosecute the case; and
  • it must be evident from the facts of the case, and all the surrounding circumstances, that the prosecution would be in the public interest.[29]

8.29 Accordingly, in the Commissions’ view, existing training of police, prosecutors, lawyers and the judiciary in understanding family violence, should include training on potential federal offences committed in this context. This training should include when and how such offences should be prosecuted in line with prosecutorial guidelines, and when such offences might play a role in protection order proceedings under family violence legislation.

Recommendation 8–1 The Australian Institute of Criminology (AIC) or another suitable federal agency should gather and report data about federal offences committed in a family violence context. This should include data about:

  1. which of these federal offences are prosecuted and the result;
  2. who conducts the prosecution;
  3. whether the offences are prosecuted jointly with state or territory crimes committed in a family violence context; and
  4. when the offences form the basis of a protection order.

This information should be regularly given to the AIC or relevant agency by either the courts or Commonwealth, state and territory prosecutors—including police and directors of public prosecution.

Recommendation 8–2 Police, prosecutors, lawyers and judicial officers should be given training about potential federal offences committed in a family violence context, including when such offences should be prosecuted or used as a basis for obtaining a family violence protection order.

This training should be incorporated into any existing or proposed training about family violence that is conducted by, among others: state and federal police, legal professional bodies, directors of public prosecution (state and Commonwealth), and judicial education bodies.

[1] Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence: Improving Legal Frameworks, ALRC Consultation Paper 1, NSWLRC Consultation Paper 9 (2010), Question 5–1.

[2] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010.

[3] G Zdenkowski, Consultation, Sydney, 6 November 2009.

[4] Office of the Director of Public Prosecutions (Cth), Correspondence, 8 January 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

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

[6] A Cannon, Submission FV 137, 23 June 2010.

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

[8] G Zdenkowski, Consultation, Sydney, 6 November 2009.

[9] Office of the Director of Public Prosecutions (Cth), Correspondence, 8 January 2010.

[10]Criminal Code Act 1995 (Cth) s 474.17(1).

[11] C Ringland and J Fitzgerald, Factors which Influence the Sentencing of Domestic Violence Offenders (2010), prepared for the NSW Bureau of Crime Statistics and Research.

[12] Consultation Paper, Proposal 5–2.

[13] Ibid, Proposal 5–3.

[14] 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; 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; 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.

[15] Australian Government Attorney-General’s Department, Submission FV 166, 25 June 2010.

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

[17] Commonwealth Director of Public Prosecutions, Submission FV 76, 2 June 2010; Office of the Director of Public Prosecutions (Cth), Correspondence, 8 January 2010.

[18] Consultation Paper, Question 5–3.

[19] 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; Queensland Law Society, Submission FV 178, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[20] National Legal Aid, Submission FV 232, 15 July 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Women’s Domestic Violence Court Advocacy Service Network, Submission FV 46, 24 May 2010.

[21] Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010.

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

[23] Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010; Confidential, Submission FV 183, 25 June 2010.

[24] Confidential, Submission FV 198, 25 June 2010. See also Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; J Stubbs, Submission FV 186, 25 June 2010.

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

[26] Police Association of New South Wales, Submission FV 145, 24 June 2010.

[27] National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 (2009) 47.

[28] Australian Institute of Criminology, Homepage <http://www.aic.gov.au/> at 14 September 2010.

[29] Office of the Director of Public Prosecutions (Cth), Prosecution Policy for the Commonwealth: Guidelines for the Making of Decisions in the Prosecution Process.