8. Family Violence and the Criminal Law An Introduction

Transcription

1 8. Family Violence and the Criminal Law An Introduction Contents Introduction 345 Prosecuting federal offences in a family violence context 346 Research and education about federal offences 347 Civil and criminal proceedings 351 Choice of proceedings 352 Mandatory reporting 359 Introduction 8.1 The Terms of Reference direct the Commissions to consider the interaction in practice of family violence laws with the criminal laws of the Commonwealth, states and territories. This and the following six chapters are dedicated to this issue. 8.2 Family violence laws interact with the criminal law in a number of ways. They most often interact with state or territory criminal law, but may also interact with federal criminal law. A person who uses family violence may be subject to a protection order or to criminal prosecution or to both. In practice, decision makers, such as police, may choose to pursue one avenue over another. This chapter considers how and why those decisions are made and whether the decisions are always made appropriately and in the best interests of victims. It also briefly considers whether any persons, such as neighbours and health professionals, should be required to report family violence to police. 8.3 Chapter 9 considers the role of police in investigating family violence, issuing protection orders and applying for protection orders. It also considers the use of police powers of entry, search, seizure, arrest, direction and detention to investigate family violence and to protect victims. 8.4 Chapter 10 considers how family violence protection orders can interact with bail decisions made by police and the courts. Issues considered include: whether there should be a presumption regarding bail for crimes committed in a family violence context; whether bail conditions conflict with family violence protection order conditions; and whether victims of family violence are appropriately and promptly informed about bail decisions. 8.5 Chapter 11 discusses a number of issues arising from the interaction between family violence protection orders and the criminal law, including: the use of evidence

2 346 Family Violence A National Legal Response of protection orders in criminal proceedings; the making of protection orders during criminal proceedings; and the interaction between protection order conditions and the criminal law. 8.6 Chapter 12 considers issues that arise when protection orders are breached. Breaching a protection order is a criminal offence and can therefore result in the parties to protection order proceedings entering into the criminal justice system. The chapter considers issues concerning the aiding and abetting of breaches; how police and prosecutors decide whether to charge a person for breaching a protection order or for the underlying offence; the maximum penalties for breach; and sentences imposed for breaching protection orders. 8.7 Chapters 13 and 14 consider whether there should be an expanded role for the criminal law in recognising family violence. Chapter 13 considers how family violence is recognised in criminal offences and sentencing. Chapter 14 considers family violence in the context of defences to homicide and how if at all a family relationship should be defined where it is prescribed as an element of an offence, defence or as a sentencing factor. 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: (a) an overlap between state or territory family violence legislation and federal criminal law; and (b) a joint prosecution of state or territory and federal offences arising in a family violence context.

3 8. Family Violence and the Criminal Law An Introduction 347 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 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 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 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 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 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 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 G Zdenkowski, Consultation, Sydney, 6 November 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 Magistrates Court and the Children s Court of Victoria, Submission FV 220, 1 July A Cannon, Submission FV 137, 23 June Queensland Law Society, Submission FV 178, 25 June G Zdenkowski, Consultation, Sydney, 6 November Office of the Director of Public Prosecutions (Cth), Correspondence, 8 January 2010.

4 348 Family Violence A National Legal Response 2008 and June 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 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 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 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 Criminal Code Act 1995 (Cth) s (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 Ibid, Proposal 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 Australian Government Attorney-General s Department, Submission FV 166, 25 June National Legal Aid, Submission FV 232, 15 July Commonwealth Director of Public Prosecutions, Submission FV 76, 2 June 2010; Office of the Director of Public Prosecutions (Cth), Correspondence, 8 January Consultation Paper, Question 5 3.

5 8. Family Violence and the Criminal Law An Introduction 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 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 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 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. 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 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 Women s Legal Services NSW, Submission FV 182, 25 June 2010; Women s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June Women s Legal Service Queensland, Submission FV 185, 25 June Women s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010; Confidential, Submission FV 183, 25 June Confidential, Submission FV 198, 25 June See also Magistrates Court and the Children s Court of Victoria, Submission FV 220, 1 July 2010; J Stubbs, Submission FV 186, 25 June Magistrates Court and the Children s Court of Victoria, Submission FV 220, 1 July Police Association of New South Wales, Submission FV 145, 24 June 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) 47.

6 350 Family Violence A National Legal Response 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 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 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 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 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: 28 Australian Institute of Criminology, Homepage < at 14 September 2010.

7 8. Family Violence and the Criminal Law An Introduction 351 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 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: (a) (b) (c) (d) which of these federal offences are prosecuted and the result; who conducts the prosecution; whether the offences are prosecuted jointly with state or territory crimes committed in a family violence context; and 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. Civil and criminal proceedings 8.30 Conduct constituting family violence may form the basis of a protection order as well as grounds for a criminal prosecution. In these cases, civil family violence laws can interact with criminal law. Physical and sexual assault are clear examples; they are family violence for the purpose of obtaining a protection order and they are crimes in all jurisdictions. Not all family violence under state and territory family violence 29 Office of the Director of Public Prosecutions (Cth), Prosecution Policy for the Commonwealth: Guidelines for the Making of Decisions in the Prosecution Process.

8 352 Family Violence A National Legal Response legislation is criminal, 30 but as discussed in Chapter 9, criminal law procedures such as police powers of arrest and detention can also interact with civil law protection orders There are some key differences in the civil and criminal responses to family violence. Some of these are summarised in the following table: Purpose (see discussion in Chapter 4) Standard of proof Who initiates Outcome Civil protection order Protect victim from future violence. Balance of probabilities. Victim, authorised person, police, and possibly but less frequently the DPP. In certain cases and in some jurisdictions, courts can also initiate making of protection order. Conditions or restrictions placed on person against whom order is made (eg, not to harass, be of good behaviour, not to approach victim). Criminal proceedings Punish offender for past criminal conduct. Other sentencing purposes include: deterrence, rehabilitation, incapacitation, denunciation and restoration. Beyond reasonable doubt. Police lay charges and prosecute less serious offences. State/territory DPPs prosecute more serious offences. On finding of guilt or conviction, offender is sentenced. Choice of proceedings 8.32 There may be legitimate reasons that police and prosecutors, when they encounter family violence, might seek a protection order for the victim, but not pursue criminal charges. Some family violence will not amount to a criminal offence; protection orders generally offer a speedier response to violence and therefore speedier protection; and there is a lower standard of proof in civil protection order proceedings. But are decision makers sometimes wrongly choosing to pursue one remedy at the expense of the other? 8.33 As noted by Amnesty International, the United Nations Special Rapporteur on Violence against Women, its Causes and Consequences, has raised concerns about the 30 As discussed in Ch 5. Whether all family violence should be criminalised is discussed in Ch 13.

9 8. Family Violence and the Criminal Law An Introduction 353 use of protection orders under family violence legislation in Australia instead of, rather than as well as, a criminal response. 31 Amnesty International has stated: Civil protection orders are an essential part of the state s responsibility to protect survivors of violence, but should complement, not replace, a criminal response Commentators have noted, however, that where there is an overlap between criminal and civil responses, the balance is a delicate one, between providing a legal mechanism for protecting people who experience domestic violence, but not downplaying its significance by applying what is essentially a private law remedy In 1990, Dr Jocelynne Scutt argued that family violence laws effectively decriminalise family violence: 34 The emphasis is on treating assault not as criminal, but to be dealt with by a civil law solution. The man is not penalised for assaulting his wife; he is penalised if at all, for breaking an order of the court In 2008, Dr Heather Douglas wrote that in Queensland, family violence continues to be dealt with mainly through protection orders, rather than the criminal law: The development of protection order legislation grew, to some extent, out of frustration with the failure of the criminal justice system. Some of the key obstacles in criminal prosecution and conviction of domestic violence offences are the high standard of proof of beyond reasonable doubt and the fact that many of the standard criminal offences fail to encapsulate certain violent behaviours These protection order schemes have been embraced by both women and by police. As one magistrate has noted, we have seen a rise and rise in the use of protection orders The Magistrates Court of Queensland reported that, in the year , it made a total of 32,081 protection orders and dismissed 5,376 applications for such orders. 37 New South Wales Criminal Courts statistics also indicate high usage of the protection order system. Statistics for 2008 reveal that 22,684 protection orders were granted in proceedings under NSW family violence legislation excluding interim orders The 2008 review of the family violence legislation of Western Australia (WA) notes a concern that, despite police policy stating that protection orders are to be seen 31 Amnesty International, Setting the Standard: International Good Practice to Inform an Australian National Plan of Action to Eliminate Violence Against Women (2008), Ibid, 45 (citation omitted). 33 B Fehlberg and J Behrens, Australian Family Law: The Contemporary Context (2008), J Scutt, Women and The Law (1990), 451, Ibid, 459. Issues that arise on breach of a protection order are discussed in Ch H Douglas, The Criminal Law s Response to Domestic Violence: What s Going On? (2008) 30 Sydney Law Review 439, 444. However, in some cases, if civil redress were not available, a victim would be left without any protection. 37 Magistrates Court of Queensland, Annual Report , Appendix 11, Table 9. The figure of 32,081 includes final and interim protection orders, as well as variation and revocation of protection orders. The total number of final protection orders made in the same reporting period was 15, NSW Bureau of Crime Statistics and Research, New South Wales Criminal Courts Statistics 2008, 6, Table 1.14.

10 354 Family Violence A National Legal Response as an additional safeguard and are not regarded as an alternative to the laying of charges, the introduction of police-issued protection orders has become, in some instances, an alternative to a criminal justice response. 39 The WA review stated that: The question is whether police are issuing police orders, not only in appropriate circumstances, but also in circumstances where they should be preferring charges Responses from the policy survey indicate that, in some instances, issuing a police order may be preferred to laying charges because issuing a police order requires less police time The WA review expressed concern that some police were potentially trivialising what, to a victim, was a serious offence In contrast, the Commissions heard anecdotally in one consultation with magistrates in Adelaide that, in that jurisdiction, police prefer laying a charge to taking out a protection order because the latter involves preparing an affidavit and is more time-consuming While one concern is that civil redress downplays the significance of family violence, concerns have also been raised that applying the criminal law to family violence may inflict further harm to women. 43 Douglas has stated that: It is argued by some that involving the criminal justice system in domestic violence matters may create distress, disadvantages and disillusionment for women that override any hope or protection and safety gained through the criminal justice process. In Australia, there is research available that shows that indigenous women in some communities may be reluctant to call on police to protect them from violence where arrest and prosecution focused strategies are in place Since the 1970s, some commentators emphasised that there are important reasons for treating family violence as criminal and not civil or private. Douglas suggested that this has encouraged public condemnation of the violence and police accountability for the protection of women. 45 However, Scutt argued that criminal assault in a family violence context is effectively decriminalised by the failure of police and courts to treat it as criminal, the solution is seen as passing legislation to grant women a right to an intervention order Whether a civil and/or a criminal response is pursued may also depend in practice on the victims wishes. Whether victims choose to pursue a civil remedy or 39 Department of the Attorney General (WA), A Review of Part 2 Division 3A of the Restraining Orders Act 1997 (2008), Ibid, Ibid, Family Violence Magistrates, Consultation, Adelaide, 25 September H Douglas, The Criminal Law s Response to Domestic Violence: What s Going On? (2008) 30 Sydney Law Review 439, 439. The purposes of family violence legislation and the criminal law are discussed in Ch Ibid, (citations omitted). 45 Ibid, 443 (citations omitted). 46 J Scutt, Women and The Law (1990), 451.

11 8. Family Violence and the Criminal Law An Introduction 355 assist in a criminal prosecution may be influenced by a number of factors, including their experiences of the legal system; their access to support services; and the nature of their relationship with the persons who have been violent to them. As Douglas has noted: Both individual judges and research have also recognised that the cyclical and complicated nature of family violence relationships often leads victims to seek to withdraw charges or understate the harm of particular conduct during periods of calm in their relationship In cases of family violence involving allegations of sexual assault, there are parallel levels of attrition at various stages of the criminal process, which are considered in Part G of this report. Submissions and consultations 8.45 In the Consultation Paper, the Commissions asked whether police or other participants in the legal system were treating the obtaining of protection orders under family violence legislation and a criminal justice response to family violence as alternatives rather than potentially co-existing avenues of redress. In other words, were they choosing one remedy over the other, when perhaps they should have sought both? If they were, the Commissions asked, what are the practices or trends and how can this best be addressed? Stakeholders submitted that the research on this question was limited 49 and that practices vary between jurisdictions While noting that it was to their credit that Queensland Police have taken strong and positive action to counter family violence, the Queensland Law Society submitted that the most typical reaction by police in attending domestic situations is to take action and if necessary apply for a protection order and if necessary remove the perpetrator from the scene, taking him or her into custody for a number of hours, but not to charge the perpetrator with any offence The Victorian Government stated that Victoria Police does not use one response over the other, and that since the introduction of the Code of Practice in August 2004, there have been substantial increases in both the number of intervention orders applied for by police and the number of charges laid arising from family violence incidents H Douglas, The Criminal Law s Response to Domestic Violence: What s Going On? (2008) 30 Sydney Law Review 439, 454 (citation omitted). 48 Consultation Paper, Question J Stubbs, Submission FV 186, 25 June Women s Legal Services Australia, Submission FV 225, 6 July 2010; Australian Domestic and Family Violence Clearinghouse, Submission FV 216, 30 June Queensland Law Society, Submission FV 178, 25 June Victorian Government, Submission FV 120, 15 June 2010.

12 356 Family Violence A National Legal Response 8.49 However, some Victorian Magistrates have said that Victoria Police do treat the obtaining of a protection order as an alternative to proceeding with criminal process. Others disagree. 53 National Legal Aid submitted that: In Victoria both intervention orders and criminal charges are used. Since the introduction of Family Violence Safety Notices allowing the police to remove alleged perpetrators from the home, criminal charges seem to be used only for the most serious cases. Family Violence Safety Notices should be used to ensure the safety of the victim and not as an alternative to criminal charges in appropriate circumstances National Legal Aid submitted that in NSW local courts, protection orders and criminal charges are often treated as co-existing avenues of redress. 55 However, Women s Legal Services NSW stated: For many of our clients it is common for police not to charge offenders when charges would have been indicated as appropriate by police policy and the legislation... In some cases where the victim and perpetrator are in a relationship, the police do not charge with criminal offences until there have been a number of incidents Police in WA, it was submitted, in some cases tell victims to get a protection order rather than investigate and prosecute a crime Tasmania s Safe at Home program encouraged police to bring both criminal and protection order proceedings, National Legal Aid submitted, and this is embedded in police and there are appropriate reviews to ensure that it happens consistently In the ACT, National Legal Aid, submitted: it is not the police who apply for domestic violence orders, except very rarely in emergency telephone order situations. There is a Family Violence Intervention Program which involves [lawyers], police, magistrates and services. All criminal matters that involve family violence are marked Family Violence they go into the Family Violence List this takes them before a magistrate who is on the Intervention Program committee. It is still treated the same way in terms of criminal law but by a judicial officer who has an awareness of the significance of family violence. There is no option for police bail if a person is arrested for a family violence offence. Protection orders are applied for by individuals. 59 Reasons for not prosecuting 8.54 Various explanations were given for why police might choose to obtain a protection order, rather than prosecute a crime, when they could do both. The Queensland Law Society submitted that police claim it can be very difficult to prosecute these offences because: (a) The victim often recants and therefore police are reluctant to commence the prosecution; and (b) It can be hard to prove matters beyond reasonable doubt. 53 Magistrates Court and the Children s Court of Victoria, Submission FV 220, 1 July National Legal Aid, Submission FV 232, 15 July Ibid. 56 Women s Legal Services NSW, Submission FV 182, 25 June National Legal Aid, Submission FV 232, 15 July Ibid. 59 Ibid.

13 8. Family Violence and the Criminal Law An Introduction 357 Furthermore, Queensland Police in their operational police manual... have their attention drawn to obtaining protection orders but not necessarily to also charging perpetrators of violence with offences arising out of the same conduct Sometimes individuals are not charged, it is said, because prosecuting a crime means more work, and police might not have the time and resources to investigate these more difficult matters. 61 One legal centre also suggested an attitude problem, especially towards Aboriginal women, stating that we often find that police are indifferent to Aboriginal women because there is a perception that Aboriginal women are unreliable Some victims of family violence reportedly do not want the offender to be charged with a criminal offence they just want the violence to stop. 63 This might partly be out of fear of retribution, 64 but for some Indigenous victims of family violence, by putting in place a DVO [a protection order] but not pressing aggravated assault charges, the police are in fact respecting the wishes of these women. 65 Professor Julie Stubbs submitted that victims may choose to use different options at different times in response to their changing needs, concerns and capacities; an effective response to family violence should not preclude some capacity for victim choice The idea of choice was also noted by the Commissioner for Victims Rights (South Australia), who cautioned against a blanket approach that requires the police to always apply for a protection order and charge the substantive criminal offence, because it is important that victims know the choices, the implications and are engaged in the decision-making Stakeholders suggested that police need ongoing and comprehensive training, including about family violence and its complexities, especially in the context of Aboriginal communities, and about Aboriginal culture. 68 Police also need a clear and cohesive framework. 69 Standard operating procedures should guide police in deciding when to lay criminal charges. 70 Stakeholders also submitted that police responses to family violence should be monitored, scrutinised, and tracked Queensland Law Society, Submission FV 178, 25 June Wirringa Baiya Aboriginal Women s Legal Centre Inc, Submission FV 212, 28 June See also J Stubbs, Submission FV 186, 25 June Wirringa Baiya Aboriginal Women s Legal Centre Inc, Submission FV 212, 28 June Confidential, Submission FV 164, 25 June Magistrates Court and the Children s Court of Victoria, Submission FV 220, 1 July Confidential, Submission FV 164, 25 June J Stubbs, Submission FV 186, 25 June Commissioner for Victims Rights (South Australia), Submission FV 111, 9 June Wirringa Baiya Aboriginal Women s Legal Centre Inc, Submission FV 212, 28 June Women s Legal Services NSW, Submission FV 182, 25 June Wirringa Baiya Aboriginal Women s Legal Centre Inc, Submission FV 212, 28 June Women s Legal Services NSW, Submission FV 182, 25 June 2010.

14 358 Family Violence A National Legal Response 8.59 One Victorian community service and advocacy organisation noted that criminal charges rely on a police assessment of the strength of the evidence. Accordingly, it submitted, police should be encouraged to collect evidence and to work with family violence service providers to encourage women to make statements. 72 There also needs to be support for specialist children s support services, both to address the impact of violence and enable children to make statements to SOCA [Sexual Offences and Child Abuse police units]. Whole of service system support for victims is needed to encourage them to pursue criminal proceedings While most submissions approached these questions by addressing whether police are not prosecuting family violence criminal offences when they should, one stakeholder addressed the question of whether protection orders were appropriately being put in place during or after criminal proceedings. 74 Commissions views 8.61 In the Commissions view, police and prosecutors should only choose not to prosecute crimes committed in a family violence context with good reason. Civil and criminal responses to family violence can serve common purposes, such as the protection of a victim of family violence but, as discussed more fully in Chapter 4, they can also serve different purposes. It is important that neither remedy is inappropriately neglected The question of whether to prosecute criminal family violence more actively inevitably raises the difficult matter of whether the state should prosecute despite the contrary wishes of the victim. This chapter does not explore this debate in detail, but notes that pro-arrest, pro-prosecution and other mandatory policies have their critics, some of whom maintain that the policies not only disempower victims, robbing them of their autonomy, but that they can even compromise victim safety In practice, the reasons police do not prosecute crimes committed in a family context sometimes seem to be inappropriate, and sometimes do not clearly relate to the wishes or safety of victims. Not prosecuting because the task is difficult, or takes too much time, or because an officer thinks violence against a family member is less serious than other crimes are poor reasons not to prosecute a crime. As with decisions about whether to prosecute federal offences committed in a family violence context, discussed above, decisions about whether to prosecute other criminal offences committed in a family violence context should be made in accordance with prosecution policies. These policies consider such matters as the strength of the evidence and 72 Berry Street Inc, Submission FV 163, 25 June Ibid. Integrated responses and specialisation are discussed further in Chs 29 and 32 respectively. 74 Magistrates Court and the Children s Court of Victoria, Submission FV 220, 1 July The making of protection orders in criminal proceedings is discussed in Ch 11. The interaction between protection orders and bail conditions is discussed in Ch For example, L Goodmark, Autonomy Feminism: An Anti-Essentialist Critique of Mandatory Interventions In Domestic Violence Cases (2009) 37 Florida State University Law Review 1. This debate is discussed further below.

15 8. Family Violence and the Criminal Law An Introduction 359 whether prosecuting is in the public interest. Determining this public interest will no doubt include carefully considering the needs and safety of victims Police should be trained and equipped to decide properly when to pursue civil and criminal responses to family violence and when to pursue both. 76 In jurisdictions in which police now rarely play a role in issuing or applying for protection orders, it should be clear who is responsible and accountable for deciding whether to do so. The decisions police make in relation to when they issue or apply for a protection order and when they choose to prosecute a criminal offence should be monitored by senior police officers Failures to prosecute criminal family violence do not necessarily need to be addressed through mandatory-arrest or mandatory-prosecution policies. These are arguably blunt instruments. But a duty to investigate family violence, and to record when and why further action was not taken, should go some way to ensuring that police are alert to the importance of their role in combating family violence and treating it seriously. The Commissions discuss this duty to investigate in the following chapter. Chapter 11 also addresses the question of when it is appropriate for a court to issue a protection order during criminal proceedings thereby accommodating a dual civil and criminal response to family violence. Mandatory reporting Existing mandatory reporting laws 8.66 The police have a duty to investigate family violence; whether this duty should be in legislation or police codes of practice is discussed in Chapter 9. One way that police can be alerted to family violence is through reports from neighbours, health professionals, and others. The making of such reports can be mandated; persons can be fined for not reporting violence when they should Such a policy has been adopted in the Northern Territory (NT), where a duty to report some types of family violence is imposed on all adults. 77 Police must take reasonable steps to ensure reports are investigated. 78 Failure to make a report is a criminal offence, 79 and can therefore result in a wide range of persons including professionals and family members who have not themselves committed family violence entering into the criminal justice system. As at 15 June 2010, there had been no prosecutions or formal investigations for this offence. 80 Tasmanian family violence 76 The Commissions make recommendations about police training and education in family violence in Ch 31, and about the use of specialised police in Ch Domestic and Family Violence Act 2007 (NT) s 124A. 78 Ibid s 124A (4). 79 The maximum penalty is $22,000: Ibid s 124A(1). 80 Northern Territory, Estimates Committee, Legislative Assembly, 22 September 2010, Question Taken on Notice 3.8.

16 360 Family Violence A National Legal Response legislation also contains a mandatory reporting provision, but the relevant section has not commenced Section 124A of the NT family violence legislation, inserted in 2009, 82 provides that an adult commits an offence if he or she fails to report to a police officer his or her belief, based on reasonable grounds, that: another person has caused, or is likely to cause, harm to someone else with whom the other person is in a domestic relationship; and/or the life or safety of another person is under serious or imminent threat because domestic violence has been, is being, or is about to be committed Harm means physical harm that is serious harm 84 and serious harm is defined in the Criminal Code (NT) to mean any harm (including the cumulative effect of more than one harm): (a) that endangers, or is likely to endanger, a person s life; or (b) that is or is likely to be significant and longstanding There are defences in the NT legislation for reasonable excuse. Reasonable excuses for not reporting the violence include that the person reasonably believed someone else had reported the violence; the person was planning for the removal of the victim and intended to make his or her report soon after the removal; or that if the person reported the violence as soon as practicable, the report would have resulted in a serious or imminent threat to the life or safety of any person The Tasmanian provision, unlike the NT provision, only applies to prescribed persons. Prescribed persons include registered medical practitioners, nurses, dentists, psychologists, and school teachers. These persons must inform a police officer as soon as practicable if they believe, or suspect, on reasonable grounds, or know, that family violence involving the use of a weapon, sexual violence or physical violence, or where a child is affected, has occurred or is likely to occur. 87 There is a defence for those who honestly and reasonably believe that a police officer has already been informed. The offence is punishable by a fine There are several key points about the reporting laws that are currently operating in the NT and that are proposed for Tasmania. First, under the NT provision, the 81 Family Violence Act 2004 (Tas) s 38 has not been proclaimed to commence since the act received Royal Assent in Domestic and Family Violence Amendment Act 2009 (NT). 83 Domestic and Family Violence Act 2007 (NT) s 124A. 84 Ibid s 124A. 85 Criminal Code (NT) s 1. Physical harm is defined in s 1A to include unconsciousness, pain, disfigurement, infection with a disease and any physical contact with a person that a person might reasonably object to in the circumstances, whether or not the person was aware of it at the time. The NT Government Department of Health and Families has published a toolkit: Mandatory Reporting of Domestic and Family Violence: A Toolkit to Help Service Providers Meet the New Reporting Obligations, September 2009, < 86 Domestic and Family Violence Act 2007 (NT) s Family Violence Act 2004 (Tas) s 38(2) (uncommenced).

17 8. Family Violence and the Criminal Law An Introduction 361 obligation to report is not limited to prescribed persons, such as health or welfare workers, but rather extends to all adults. A broader range of persons is therefore required to report this violence in the NT than is required, outside the NT, to report concerns for the safety or welfare of children under child protection laws and provisions Secondly, the violence that must be reported in the NT is not as broad as the violence that may form the basis of obtaining a protection order under the NT family violence legislation. 89 As noted above, s 124A requires reporting only where the life or safety of another person is under serious or imminent threat or where there is serious physical harm. The Tasmanian provision also limits the types of violence that would have to be reported The NT family violence legislation also provides that a person acting in good faith is not civilly or criminally liable, or in breach of any professional code of conduct, for making a report or for disclosing any information in the report. 90 The community s responsibility for family violence 8.75 Supporters of mandatory reporting of family violence argue that family violence is a responsibility of the entire community. Introducing the NT provision, the Attorney- General said it reflects a strong commitment to tackling domestic violence and enables a community response to a community problem. 91 It is the responsibility of every member of our community to help break the cycle of domestic and family violence, and protect women and children from violence. The mandatory reporting law reflects this important responsibility Viewed in this way, mandatory reporting is not about peering over your neighbour s fence or dobbing people in to the police, but is about no longer ignoring violence and abuse. Mandatory reporting is sending a message to the community, to our friends and neighbours, that abuse will no longer be ignored; that we, the community, will no longer remain silent Duties to report concerns for the safety or welfare of children generally apply to people who work in organisations that provide health, welfare, education, law enforcement, child care or residential services to children. Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 23, 27; Children, Youth and Families Act 2005 (Vic) ss 162, 184; Child Protection Act 1999 (Qld); Public Health Act 2005 (Qld) ss 158, 191; Education (General Provisions) Act 2006 (Qld) ss ; Children and Community Services Act 2004 (WA) ss 3, 124B; Children s Protection Act 1993 (SA) ss 6, 10 11; Children, Young Persons and Their Families Act 1997 (Tas) ss 3 4, 14; Children and Young People Act 2008 (ACT) ss 342, 356. In the NT, there is a duty to report some types of harm to children that applies to all persons, though there is a further duty that applies to health practitioners and other prescribed persons: Care and Protection of Children Act 2007 (NT) ss 13 16, 26. See also Ch 20 for a discussion of mandatory reporting of children s exposure to family violence. 89 See Domestic and Family Violence Act 2007 (NT) ss 5, 18 for definition of domestic violence and for when domestic violence orders may be made. 90 Ibid s Northern Territory, Parliamentary Debates, Legislative Assembly, 26 November 2008 (C Burns Justice and Attorney-General). 92 Ibid. 93 Ibid.

18 362 Family Violence A National Legal Response 8.77 The Tasmanian Attorney-General also stressed that mandatory reporting reflects the community s responsibility for tackling family violence and that professionals, such as doctors, psychologists and police have an ethical responsibility to report the violence Enabling the state to intervene in a violent relationship at the earliest possible point has, in the United States (US), been an argument used for some time by supporters of laws for mandatory reporting by medical personnel Given the community s responsibility for improving the safety of victims of family violence, it was argued during debate on the NT provision that the obligation to report should not be limited to serious harm. Such a limitation was particularly dangerous in the NT, and might leave victims who do not need hospitalisation in a very dangerous position: Violence is acculturated and engendered across many communities in the Territory. It has become normalised, and children grow up learning to accept violence, and that violence is a normal and acceptable response. Within this environment, in particular, it is very dangerous to restrict mandatory reporting to serious harm and to leave other forms of violence to the discretion of individuals, family members, community members, and professionals to report. By prescribing only serious harm as the type of violence to be reported, it requires bystanders to make a judgment about the seriousness or otherwise of the violence that occurs.... [It] provides the ultimate out for perpetrators: I did not hit her hard. She was not bleeding. It was not harm that caused or will cause serious harm that endangered her life and it was not significant or long-standing. 96 Criticisms of mandatory reporting 8.80 Mandatory reporting, however, has many critics. For example, the Australian Domestic and Family Violence Clearinghouse expressed its strong opposition to mandatory reporting of domestic and family violence by health professionals on grounds including the following: there is no evidence that it improves safety for victims; a significant number of victims are opposed to it; victims might be deterred or prevented from seeking medical treatment; and police do not have the capacity or willingness to investigate all reported cases In introducing the family violence mandatory reporting provision, the NT Attorney-General noted the following concerns of opponents of mandatory reporting of 94 Tasmania, Parliamentary Debates, Legislative Assembly, 18 November 2004, 97 (J Jackson Attorney General and Minister for Justice and Industrial Relations), L Mills, Killing Her Softly: Intimate Partner Abuse and the Violence of State Intervention ( ) 113 Harvard Law Review 550, Northern Territory, Parliamentary Debates, Legislative Assembly, 18 February 2009 (J Carney). 97 Australian Domestic and Family Violence Clearinghouse, Response to Northern Territory Proposal for Mandatory Reporting of Domestic Violence by Health Workers (2008) < unsw.edu.au> at 14 September 2010.

19 8. Family Violence and the Criminal Law An Introduction 363 child abuse: that people would not seek help; that it would result in further violence; that it would be unenforceable; that there would be confidentiality issues; and that certain occupations could be professionally compromised. 98 The Tasmanian Attorney- General also acknowledged that the mandatory reporting requirements had caused some disquiet within the community sector Another criticism of mandatory reporting laws, also commonly directed to other mandatory legal responses to family violence, is that it can undermine the autonomy of victims. Some victims of family violence may consider that their safety and welfare is best secured by not seeking a protection order and by not seeking the prosecution of a criminal act of family violence. When the law for mandatory reporting of family violence in the NT was proposed, the National President of the Australian Association of Social Workers, Professor Bob Lonne, said that the Association s members know that a victim of family violence doesn t always want the police to come round, as it doesn t always lead to a resolution and can sometimes make the problem worse. Removing the power of the victim to decide when the police are notified makes the victim even more powerless in what is already a powerless family situation Whether and if so, under what circumstances the state should defer to the wishes of victims and not investigate or act upon family violence remains a topic of debate. 101 Professor Leigh Goodmark, a US scholar and advocate of autonomy feminism, has said that whether and to what extent it is appropriate for the state to substitute its judgment for that of victims is a hotly debated issue. 102 Goodmark argues for family violence law and policy that respect[s] the rights of individual women to choose whether and how to use the criminal and civil legal systems. Such a shift would be consistent both with antiessentialist feminist theory and with the focus on autonomy and agency that characterized the early battered women s movement. 103 Agency is, among other things, Goodmark argues, the power to see a physician to have injuries treated but choose to have that physician maintain confidentiality about the cause of those injuries Professor Cheryl Hanna has said that it is debated in feminist legal scholarship whether autonomy and the right to make one s own decisions offer more liberation for women, or are false notions masking subordination : 98 Northern Territory, Parliamentary Debates, Legislative Assembly, 26 November 2008 (C Burns Justice and Attorney-General). 99 Tasmania, Parliamentary Debates, Legislative Assembly, 18 November 2004, 97 (J Jackson Attorney General and Minister for Justice and Industrial Relations), Australian Association of Social Workers, Mandatory Reporting of Family Violence in the NT Won t Always Help Victims (Press Release, 7 October 2008). 101 Parallel arguments are made in the context of allegations of sexual assault. See Ch L Goodmark, Law is the Answer? Do We Know That For Sure?: Questioning the Efficacy of Legal Interventions for Battered Women (2004) 23 St Louis Univ Publ Law Rev 7, L Goodmark, Autonomy Feminism: An Anti-Essentialist Critique of Mandatory Interventions In Domestic Violence Cases (2009) 37 Florida State University Law Review 1, Ibid, 48.

20 364 Family Violence A National Legal Response In practice, most victims want the violence in their relationship to stop and to that extent will cooperate with the state. Many women, however, will resist outcomes that involve criminal records, jail, fines, or other punitive measures Prosecutors and judges, Hanna states, must often navigate the tricky waters between a victim s personal autonomy and concerns for public safety and justice. 106 This debate has not been settled; and these waters must be navigated not only by prosecutors and judges, but also by all persons who encounter family violence including family, friends, neighbours, police, and health and welfare professionals. Submissions and consultations 8.86 Following the release of the Consultation Paper, some stakeholders raised the issue of mandatory reporting of family violence against adults, particularly with reference to the NT law. There were particular concerns expressed that the mandatory reporting of some family violence could, in fact, discourage women from accessing counselling and legal services. 107 One legal service provider said it had heard anecdotally that there had been a decline in counselling numbers, but that it was too early to tell whether the new mandatory reporting laws in the NT are having an impact. 108 Another said that mandatory reporting often does not benefit victims and, in any event, reports are not properly acted upon by police: often by the time police attend the scene, if they attend at all, the violence will have ceased Concerns were also expressed about the effect of the law on the empowerment of women experiencing family violence and that the NT provision covers harm that has already happened, and therefore may operate even where further harm is not likely to occur in the future: Women who are not likely to face imminent harm should be allowed to tell their friends, family, service providers of their past experiences etc without fear that it will be reported to police, if they don t want it to be The Commissioner for Children (Tas) also expressed opposition to the proposed Tasmanian mandatory reporting provision. The Commissioner was not aware of any evidence that such a process would make the lives of family violence victims any safer : If police turn up at a doorstep on the report of a mandatory notifier, but not in the heat of the moment in dealing with an immediate family violence offence, there is a serious risk that a victim s private plans to escape or end the violence will be disrupted. Further, the perpetrator who may at that time be in a calm phase of the well-documented cycle of violence, could become destabilised and work retribution 105 C Hanna, The Paradox of Hope: The Crime and Punishment of Domestic Violence ( ) 39 William and Mary Law Review 1505, Ibid, Confidential, Consultation, Darwin, 27 May 2010; Confidential, Consultation, Darwin, 26 May Confidential, Consultation, Darwin, 27 May Confidential, Consultation, Darwin, 26 May Confidential, Consultation, Darwin, 27 May 2010.