Family violence legislation

Background

4.6 Family violence legislation was enacted in most states and territories in the 1980s and 1990s as a response to growing recognition that existing legal mechanisms failed to protect victims—predominantly women—from family violence. Feminist critiques in the 1970s and 1980s, for example, highlighted the inability of the criminal justice system to protect women from future violence, as well as systemic institutional failure to tackle family violence.^[3]

4.7 The discussion below considers first the purpose and objects of family violence legislation, followed by an analysis of the specific purpose of family violence protection orders.

Purpose of family violence legislation

4.8 The purpose of family violence legislation may be found, for example, in the objects clauses of state and territory family violence legislation—though the degree of articulation and specificity of purposes varies.^[4] Some family violence legislation also contain preambles or articulate specific principles that assist in identifying the policy underpinning the legislative scheme. The objects and principles set out in family violence legislation—and identified in second reading speeches—are addressed in turn below.

4.9 Objects that are expressly stipulated in family violence legislation—in varying language—include:

• ensuring, facilitating or maximising the safety and protection of persons, including children, who fear or experience family violence or are exposed to it;^[5]

• reducing or preventing family violence and the exposure of children to the effects of family violence;^[6]

• ensuring that people who use family violence accept responsibility for their conduct,^[7] or promoting the accountability of those who use family violence for their actions;^[8]

• enacting provisions that are consistent with certain principles underlying the Declaration on the Elimination of Violence against Women and with the United Nations Convention on the Rights of the Child;^[9]

• providing special police powers of arrest, detention and search in connection with issuing, serving and enforcing protection orders;^[10] and

• further protecting persons suffering or witnessing family violence in the giving of evidence and the protection of identity.^[11]

4.10 The Tasmanian legislation cites in its objects clause ‘the safety, psychological well-being and interests of people affected by family violence’ as paramount considerations in the administration of the Act.^[12]

4.11 The family violence legislation of Western Australia does not have an objects clause, but instead sets out certain matters to be considered in relation to a protection order, from which certain objects can be implied.^[13] As stated in the Second Reading Speech:

The first three [matters] are the primary considerations: that is, to protect the applicant from personal violence; secondly to prevent behaviour that could reasonably be expected to cause fear that the applicant will suffer personal violence … the third prime consideration is … the welfare of children.^[14]

Protection as the primary concern

4.12 Significantly, some legislation and second reading speeches state an intention to prioritise the protection of victims of family violence as the main objective. For example, the Queensland family violence legislation provides that the main purpose of the Act is to provide safety and protection for victims of family violence, and it does not nominate any additional purposes.^[15] In the Second Reading Speech for the Northern Territory family violence legislation, the Attorney-General stated that:

The primary objective of the bill is to ensure the safety of all people, including children, who experience domestic and family violence, and the second objective, to ensure that those who commit violence in their relationships must accept responsibility for their behaviour.^[16]

4.13 The Second Reading Speech for the Domestic Violence and Protection Orders Bill 2008 (ACT) also emphasised the object of protection:

The purpose of this act is to provide enforceable court orders to protect people who experience domestic violence and other people who have good reason to fear violence.

… People who experience violence require and deserve the assistance of our justice system to aid their protection. …

It is well recognised from the significant body of research that has been undertaken in this field that many people who are subjected to this form of violence never report the offence to police. Recognising this, it is essential that the protection afforded to those in need under this act be readily available and accessible.^[17]

4.14 Similarly, the Second Reading Speech for the Intervention Orders (Prevention of Abuse) Bill 2009 (SA) stresses the priority of protection:

In enacting these reforms, Parliament will be sending a clear message that it will not tolerate the use of violence to control or intimidate another person, particularly in a domestic setting; that it recognises and abhors the lasting psychological and emotional damage to children from exposure to such violence; that it expects perpetrators to accept full responsibility for their violent behaviour; and that the paramount consideration is always the protection and future safety of the victims of abuse and the children who are exposed to it.^[18]

Other objectives revealed in second reading speeches

4.15 A number of other objectives are also revealed in second reading speeches. For example, in the Second Reading Speech for the Northern Territory legislation, the Attorney-General stated that:

Another central objective of the legislation is to ensure minimal disruption to the lives of families affected by violence. There will be a new presumption when making orders in favour of an applicant with children in their care remaining in the family home.^[19]

4.16 In the Second Reading Speech for the Intervention Orders (Prevention of Abuse) Bill 2009 (SA) the Attorney-General stated that the legislation

will also be offering perpetrators of domestic or personal abuse the means to deal with associated problems of substance abuse, mental health, problem gambling and anger control, in the expectation that they will then be able to reflect upon and appreciate the effects of their abusive behaviour on others, take responsibility for it and learn to treat other people, particularly those close to them, with respect and care.^[20]

4.17 In the Second Reading Speech for the Family Violence Protection Bill 2008 (Vic), Ms Kirstie Marshall MP stated that:

This bill seeks to address two main issues: the attitude that family violence is a domestic matter and therefore not a crime worthy of response; and the need to ensure that the justice system itself does not inadvertently compound the devastating effects of family violence.^[21]

Overlap with family law policy

4.18 The policy behind some aspects of family violence legislation is to give paramount consideration to the best interests of the child—an approach that is consistent with that taken in family law in the context of parenting disputes.^[22] This is specifically referred to in the Second Reading Speech for the Crimes (Domestic and Personal Violence) Bill 2007 (NSW) in a discussion of the provisions requiring the inclusion of children in protection orders.^[23] It is also referred to in the Second Reading Speech for the Domestic and Family Violence Bill 2007 (NT) in the context of reforms which aim to ensure that children are protected from family violence and that their long-term development is not damaged by the experience of, or exposure to, family violence. It is stated that such reforms are ‘consistent with the principle of the best interests of the child contained in the Convention on the Rights of the Child’.^[24]

4.19 Another—perhaps less obvious—area of overlap between the policy objectives in family violence legislation and family law is revealed in the Second Reading Speech of the Domestic Violence (Family Protection) Bill 1989 (Qld), in which the Minister for Family Services emphasised the importance of the role of family in society, and the institution of marriage—echoing the language of art 23 of the International Covenant on Civil and Political Rights:^[25]

No one should doubt that the family is the natural and fundamental unit in our society … The widest possible protection and assistance needs to be given to the family unit and the institution of marriage …

The Queensland Government is committed to doing all in its power to promote the family unit and strengthen and support its role. …

Many victims of domestic violence have indicated that they do not wish to end their marriages. They just want the violence to stop. The proposed legislation may allow this to occur in those cases without the disintegration of the family unit.^[26]

Achievement of objects

4.20 Most family violence Acts state the manner in which they intend to achieve their specific objects, including statements about providing for the following:

• the making of protection orders by the court—or police where they are empowered to do so—to protect people from family violence or further family violence,^[27] and to encourage those committing family violence to change their behaviour;^[28]

• the registration of orders made in other jurisdictions;^[29]

• the enforcement of protection orders;^[30]

• an effective and accessible system of family violence protection orders—including those that are issued by police^[31]—and access to courts that is as safe, speedy, inexpensive and simple as is consistent with justice;^[32]

• the creation of offences for the contravention of family violence orders;^[33]

• the issuing of associated orders relating to problem gambling and tenancy agreements;^[34]

• special arrangements for witnesses in family violence protection proceedings;^[35] and

• limitations on publishing reports about proceedings or orders under family violence legislation.^[36]

Guiding principles

4.21 Family violence legislation in NSW and Victoria sets out guiding principles and features of family violence, providing a contextual framework for the legislative response. The NSW legislation does so in its objects clause; and the Victorian legislation does so in its preamble. The family violence legislation of South Australia also contains principles which must be taken into account in determining both whether it is appropriate to issue a protection order and the terms of such an order.^[37] In particular, the family violence legislation of those states highlights the following principles and features of family violence:

• it is unacceptable behaviour in all its forms,^[38] and in any community or culture;^[39]

• it is a fundamental violation of human rights;^[40]

• that in responding to it, the justice system should treat the views of victims of family violence with respect;^[41]

• it is predominantly committed by men against women and children;^[42]

• it affects the entire community,^[43] and occurs in all sectors of the community;^[44]

• it extends beyond physical violence;^[45]

• it may involve the overt or subtle exploitation of power imbalances and may consist of patterns of abuse over many years^[46] or of isolated incidents;^[47]

• it occurs in traditional and non-traditional settings;^[48]

• children who are exposed to family violence—as victims or witnesses—are particularly vulnerable, and can suffer detrimental effects on their current and future physical, psychological and emotional wellbeing;^[49] and

• it is best addressed through a coordinated legal and social response of assistance and prevention.^[50]

4.22 The family violence legislation of the ACT states that family violence is ‘a particular form of interpersonal violence that needs a greater level of protection’.^[51]

Purpose of family violence protection orders

4.23 The purpose of family violence protection orders is to protect victims from future violence—typically by the imposition of conditions regulating the behaviour and movements of persons who have committed family violence. The focus on restraining future behaviour is similar to the granting of injunctive relief. The emphasis is on the immediate protection of victims, often as a response to a crisis situation, facilitated by legislative provisions for emergency orders or interim orders.

4.24 These objectives are evidenced in second reading speeches, as well as in family violence legislation. For example, the Second Reading Speech for the Restraining Orders Bill 1997 (WA) states that protection orders ‘play a central role in the legal response to domestic violence by affording what is intended to be ready access to legal protection for victims’.^[52]

4.25 The family violence legislation of the ACT provides that, in deciding an application for a protection order, the paramount consideration is ‘the need to ensure that the aggrieved person, and any child at risk of exposure to domestic violence, is protected from domestic violence’.^[53]

4.26 The ACT legislation, however, also provides that if a protection order is to be made it is one that must be the

least restrictive of the personal rights and liberties of the respondent as possible that still achieves the objects of the Act and gives effect to [the paramount consideration to ensure protection].^[54]

4.27 In the Second Reading Speech for the South Australian legislation, the Attorney-General emphasised the policy underlying new police powers to issue interim protection orders:

This new police power, combined with improved powers to hold a defendant pending preparation and service of process and while making arrangements for the security of the victim, is designed to give victims and their children immediate protection from abuse without first needing to go to court, in circumstances where the alleged perpetrator can be served on the spot and is therefore instantly bound by the order.^[55]