Page created 6 June '98
WOMEN’S SERVICES NETWORK
SUBMISSION
ON
MODEL DOMESTIC VIOLENCE LAWS
April 1998
What is WESNET?
Contents of this submission
PART 1 Response to the proposals in the Discussion Paper (DP)
General comment - a Best Practice Model Domestic Violence Law
PART 2 Further proposals for inclusion in the Model Domestic Violence Law
A statutory body to oversee implementation and to entrench an integrated multi-agency response to domestic violence
PART 3: Wider concerns about a model legislative response to domestic violence
The relationship between criminal and civil responses to domestic violence
Introduction
WESNET is the peak body for SAAP funded women’s services, which includes women’s refuges, women’s housing programmes, sexual assault services and information and referral services. These services, approximately 300 in all, have extensive experience of how domestic violence laws work on the ground. Assisting women to obtain and enforce protection orders is one of their major functions.
To obtain a hard copy of this submission contact:
WESNET (Women's Emergency Services Network)
National Secretariat,
GPO Box 1579
Canberra City,
ACT 2601
ph: 02 62471616 fax: 02 62471679
email: wesnet@antrax.net.au
WESNET supports model domestic violence laws
"The tragedy of women and children who are terrorised and traumatised by violence at home requires the best possible domestic violence laws that we can devise." So said the Minister for the Status of Women, the Hon Judy Moylan when she welcomed the release by Heads of Government of this Discussion Paper on Model Domestic Violence Laws at the WESNET National Conference in December 1997. A key theme at the conference (Working with Women and Children Escaping Violence: Strategies into the Millennium) was the inadequacy of legal protection for women and children escaping domestic violence.
Like the Minister, WESNET is concerned to ensure that women and children all over Australia have access to effective legal protection from domestic violence. As the Hon Judy Moylan went on to say in her speech, "we need to achieve a situation where people in all jurisdictions have confidence that the law will protect them wherever they go and that the law clearly signals to the perpetrators that their violent behaviour is unacceptable to the broader community." This requires a model that is flexible enough to accommodate local conditions and differences in local infrastructure and resources, such as between urban/suburban and rural and remote areas, and to respond to the different situations of Indigenous women and children, those of non-English Speaking Background and women with disabilities.
WESNET considers that the Discussion Paper (DP) provides an excellent opportunity to consider the content of our existing domestic violence laws, and develop proposals for reform on a national basis. WESNET is grateful to the OSW for a small grant which has made it possible to prepare a national submission. In the course of preparing this submission WESNET has consulted with all its member organisations, as well as with Women’s Legal Services across Australia, to ensure the submission reflects the diversity of women’s needs and circumstances.
In Part 1 of the submission, WESNET comments on the role that a Model Law can play, and on specific provisions in the draft legislation that WESNET’s consultations have identified as being of particular concern. WESNET is aware that many of its member organisations, and many individual Women’s Legal Services, are making submissions which will respond in more detail on the basis of local experience of particular legislative approaches and we do not wish to duplicate this effort.
In Part 2, WESNET has responded to the invitation in the DP’s introduction to propose some new ideas for the Model Law, which we believe would enhance its effectiveness.
In Part 3, WESNET has taken this opportunity to raise wider concerns about the framework within which this Model Law is being developed, and the importance of focussing national efforts on the implementation and enforcement of domestic violence laws as well. We understand that these concerns may need to be addressed in other forums but considered it timely and appropriate to raise them in conjunction with the response to the Model Laws discussion paper.
PART 1
Response to the proposals in the Discussion Paper (DP)
General comment - a Best Practice Model Domestic Violence Law
WESNET supports the Commonwealth initiative to encourage and facilitate uniformity in domestic violence laws around the country. Improved consistency between different jurisdictions is highly desirable, but it is unlikely that in the foreseeable future all States and Territories will adopt uniform domestic violence legislation. WESNET believes that a Model Domestic Violence Law should be a model of best practice towards which State, Territory and Commonwealth governments can all work, and from which they can draw as they review and amend their own laws. WESNET considers that in some areas the Model Law as presently drafted falls short of standards of protection already reached in some jurisdictions, no doubt in the interests of compromise. Of course, in the absence of systematic and comprehensive evaluation of the different approaches currently operating, it can be difficult to determine what constitutes ‘best practice’. We return to this issue in Part 2. However, WESNET makes the general point that ideally the Model Domestic Violence Law that emerges from the process under way should provide a template for laws enabling victims of domestic violence to obtain appropriate and effective protection orders.
‘aggrieved protected person’ (DP p 4-5) It is a minor issue, relating mainly to the desirability of avoiding any unnecessary complexity, but WESNET does not see why the person needing protection should be described as both aggrieved and protected. WESNET recommends that the definition should simply refer to the ‘protected person’.
‘domestic violence’ (DP p 6-7) The definition of domestic violence is crucial because it defines the circumstances or behaviours that can give rise to an application for a protection order. WESNET agrees that the Model Law should include a clear, self-contained definition rather than listing or referring to offences defined elsewhere. However, WESNET believes that the proposed definition is too narrow and is unlikely as it stands to provide adequate coverage of the range of harms -- physical, psychological and emotional -- that domestic violence represents. It currently centres on personal injury and property damage, although it does include ‘harassing and offensive behaviour’. Given that this model law is providing civil remedies, it should be possible to cover abusive behaviours that fall short of criminal assault offences, such as intimidating, threatening or abusive conduct. At present, the only kinds of threats included in the definition are threats to cause personal injury or damage to property. Depending on the circumstances, other kinds of threats can be just as frightening. For example, a woman whose immigration status is insecure may, as part of a pattern of psychological and emotional abuse, be threatened by her husband that if she attempts to leave or seek help he will ‘report her to the authorities and she will be deported’. Also, the draft does not include ‘stalking’, although it is now widely recognised that domestic violence can take this form. It has been made a criminal offence in many jurisdictions and is an offence in the Model Criminal Code. For protective and preventive purposes it should also be included in this civil law framework. WESNET supports the inclusion of abduction and confinement in the definition. WESNET recommends that the definition of domestic violence should be broadened and expanded and specifically should include stalking, and abusive, threatening and intimidating behaviour.
‘protected person’ (DP pp10-11) The definition of a protected person sets the scope of this legislation because it specifies the relationships within which individuals can access a protection order. The proposed definition includes spouses, partners and relatives (self-defined), with an option to broaden it further to include ‘intimate personal relationship’ (eg: non-cohabiting couples) and ‘household members’. These options would encompass same sex couples. The main argument in favour of a broad definition is that it makes protection available to anyone who may be in a relationship of dependence and therefore vulnerable to abuse. However, the definition in the DP does not appear to include carer/cared for relationships (unless they share a household). The submission prepared by Women With Disabilities Australia makes the point that although many women with disabilities would be adequately covered by the proposed definition, those who are in the care of person who is not a relative, spouse or household member would not have access to these protection orders. That is a gap in protection for women with disabilities, and elderly women.
There is concern among some WESNET member organisations that giving the legislation a broad scope may diminish the focus on what is the most common form of domestic violence, that involving abuse by husbands/male partners of their wives/female partners. It is important to note here that the Model Law is not broadening the scope of these protection orders to cover anyone who may be experiencing harassment such as neighbours (as the Apprehended Violence regime does in NSW for example), which would be inappropriate for a Model Domestic Violence Law. Rather, it is extending the scope of the Domestic Violence Law to include defined categories of "non-spousal family violence". In terms of maintaining the focus on gender-based domestic violence, WESNET considers this can be achieved by data collection and monitoring of who is obtaining orders against whom. The report by the NSW Bureau of Crime Statistics and Research, An Evaluation of the NSW Apprehended Violence Order Scheme (1997) shows that the majority of orders were sought to protect women from a current or former male partner. Given that there are different regimes operating in different jurisdictions, it is a pity that there is no comparative research available that would enable evaluation of the merits of the different approaches.
WESNET tends to support the proposed definition of ‘protected person’, including the optional clauses that broaden it, and including carer/cared for relationships in domestic contexts.
Grounds for obtaining a protection order (section 4, DP pp.14-17)
WESNET does not support the present draft of section 4 which sets out the basis on which a court may make a protection order. The proposed grounds for obtaining a protection order require that an act of domestic violence has been committed and that it is likely to be repeated, or if the act of domestic violence was a threat, that the threat is likely to be carried out. This is too onerous a test, and overlaps too closely with the proper function of the criminal law (whilst appreciating that the standard of proof is different). It does not place sufficient emphasis on the possibility of preventing domestic violence where a person is in fear of it but cannot point to an incident that meets the definition. If an act of domestic violence can be established this alone should be enough to justify a protection order. It is in the nature of domestic violence, and the vulnerability of many women and children to this abuse, that there are likely to be further incidents.
However, it should not be necessary to show that a specific act of domestic violence has already occurred. Even though the proposal includes threats as ‘acts of domestic violence’, as presently drafted the threats must be to cause personal injury or damage. Many women live in fear of their partners because they know they are capable of serious violence even though they have not experienced a direct attack. To give an example of circumstances giving rise to fear, a woman living on a rural property reports that she is made to watch her husband cleaning his gun and muttering about how easily the gun might go off and hurt someone accidentally and no-one would ever know what really happened. The threat is veiled, he has not actually assaulted her but she is fearful, isolated and vulnerable. Another example is the not uncommon practice of perpetrators who terrorise family members by gross ill-treatment of their pets.
The DP has rejected the approach which requires the ‘protected person’ to show that she has reasonable grounds to fear, or in fact fears, domestic violence. The reasons given are that on the one hand it is open to abuse, and on the other that it focuses too much on the emotions of the victim rather than the conduct of the perpetrator. However, WESNET believes that including fear or apprehension of domestic violence as a ground for getting a protection order can be justified on the basis that conduct or behaviours of the perpetrator which may not appear threatening or harmful to an ‘objective’ observer can be frightening to a woman in an abusive relationship, who knows the perpetrator and is acutely aware of her own powerlessness.
In practice there may not be a huge difference between having to show acts/threats of domestic violence or having to show fear. In order to show fear, it is common to refer to a perpetrator’s previous conduct. If a broader definition of domestic violence is adopted, this will also assist. However, given that protection orders are supposed to have a preventive function they should clearly be available where it can be established that a person is fearful or at risk even where there have been no incidents satisfying the legal definition of domestic violence. To ensure maximum flexibility in the Model Law, there should be alternative grounds for seeking a protection order.
WESNET recommends that section 4 should be amended to provide that the court may make a protection order if satisfied on the balance of probabilities that (a) the defendant has committed an act of domestic violence OR (b) that the protected person fears or apprehends that unless restrained the defendant will commit an act of domestic violence.
Restrictions in order (section 5 DP p 18-23)
It is important to note that research shows that the most effective protection orders are those which are comprehensive and crafted to meet the specific safety requirements of the individual in need of protection. A high degree of specificity in protection orders also facilitates enforcement by police.
Exclusion orders (section 5(1)(b))
WESNET believes that potentially one of the most significant purposes that protection orders can serve is to secure a safe home for the woman and children by excluding the violent partner from the premises/former family home. The numbers of women and children made homeless by domestic violence is a disgrace. Data from the Supported Accommodation Assistance Program show that domestic violence is one of the main reasons women need help from that program. Domestic violence was given as the reason for seeking assistance in 38% of cases, and in a further 14% of cases family or relationship breakdown is cited (SAAP National Data Collection, Annual report 1996-97, p 33). WESNET notes that improved support services would be needed to protect women and children who choose to stay in their own homes and are enabled to do so by a protection order.
Of course an exclusion order is not always appropriate - women are sometimes too fearful and at risk to remain in the home. However, WESNET understands on the basis of anecdotal evidence that women are discouraged from seeking exclusion orders on the basis that they are rarely granted. There are indications that exclusion or sole occupation orders are currently grossly underused. In 1987 only 3.2% of NSW protection orders excluded the defendant from the family home. Courts do appear to be reluctant to grant exclusion orders, and magistrates are often reported as taking the view that if a woman is already in a refuge or has access to a refuge, her accommodation needs are adequately met. WESNET supports the NSW provision requiring magistrates to give reasons if they decline to make an exclusion order. Where police officers are the applicants it seems they rarely seek more than the ‘standard’ form of order prohibiting the defendant from contacting or harassing the protected person. Also, where a woman applies on her own and/or her children’s behalf and is unrepresented she may not know she can seek an exclusion order. Many women believe that once they have fled the home they have lost all realistic claim on it.
The Model Law sets out factors which the court must take into account before making an exclusion order (section 5(2), p20). These require that protection from violence and the welfare of the children be the paramount considerations. WESNET agrees that these should be the paramount considerations but is concerned that in the present draft the direction to give these factors primacy is buried at the end of subclause 5(2)(e). A busy magistrate might miss it there. The direction should be emphasised by being made at least a separate sub-section.
Furthermore, WESNET believes that the requirement for the court to consider "the accommodation needs of all persons who may be affected by the order" (section 5(2)c) will undermine this provision. Such a clause is common and often appears to be understood by magistrates to mean that if the woman and children are in a refuge their accommodation needs are met, and the defendant should therefore be allowed to remain in the home. Magistrates should be aware that the Supported Accommodation Assistance Programme provides support to more male clients than female clients (SAAP National Data Collection, 1997). In any event, WESNET considers that proposed sub-section 5(2)c is confusing and detracts from the stated focus on protection from violence and ensuring the welfare of any children.
WESNET recommends that the provisions relating to exclusion orders be strengthened and clarified. To this end, section 5(2)c should be deleted, and the direction to give paramount consideration to protection from violence and the welfare of the children in section 5(2)(e) should be made a separate subsection. Further, the Model Law should create a presumption in favour in an exclusion order where one has been requested and where the safety of the protected person/children would not be compromised by remaining in the family home. The Model Law should also impose an obligation on the court, at least where children are involved, to consider whether an exclusion order should be made, whether or not an application has been made for such a restriction.
Other housing/property reform needed. Of course an exclusion order is not a permanent housing solution for women and children escaping violence. It is important for example that steps be taken to implement the changes to residential tenancy laws which would facilitate the exclusion of a tenant and transfer of tenancy in situations of domestic violence (Kennedy R, See P, Sutherland P, Minimum Legislative Standards for Residential Tenancies in Australia, 1995; also Safe as Houses, Redfern Legal Centre, 1997). WESNET believes this is being done in Queensland, but so far not in other jurisdictions. Also, the matrimonial property provisions in the Family Law Act are under review and it will be important to ensure that the housing needs of women and children escaping domestic violence are considered and protected in that context.
WESNET recommends that the Working Group consider these issues and 1)make representations to the Standing Committee of Attorneys General about the need for tenancy law reform to meet the housing needs of domestic violence victims; 2) refer its proposals regarding exclusion orders, and relevant submissions, to the Commonwealth Attorney General’s review of the matrimonial property provisions.
Other restrictions in the order
The draft law states in section 4(2) that the court may "impose any restrictions or prohibitions on the person that appear necessary or desirable in the circumstances to the court." Section 5(1) says that the order is not limited to the types of restriction listed in section 5. Inevitably, however, the list of prohibitions and restrictions set out in this section will become a standard checklist both for the courts and for the applicants. It is important therefore that the key prohibitions are included.
The most obvious omission from the current draft is any reference to the behaviours that comprise stalking - eg prohibit the defendant from following, or loitering near the protected person.
Access to premises frequented by children in need of protection
It would also be helpful to specify that the order may require the defendant to stay away
from the childcare centre, school or other places attended by any children included in the
order.
Personal property restrictions
It is very useful to have a provision enabling the court to direct the defendant to give or return specified personal property to the protected person, or to prohibit the defendant from taking property reasonably needed by the protected person. This can be of particular importance where an exclusion order is being made and in the ACT the provisions are expressly linked - see the ACT Domestic Violence Act 1986 s 9 (1)(g). However, they can also be important where the protected person has to leave the home and the defendant is refusing to allow her access to clothing and other essentials, or is withholding car keys for example.
WESNET recommends that section 5(1) be amended to specify 1)prohibitions against stalking behaviours and 2)restrictions on the defendants access to places frequented by children protected by the order and 3) restrictions relating to personal property.
Prescribed counselling for defendants (section 5(1)(g))
In the absence of data showing that counselling is effective in reducing violence
WESNET considers it is inappropriate to include any reference to counselling in the terms
of a protection order. The protection order should contain only those conditions or
restrictions which are necessary and sufficient to protect the victim(s). The protection
order is only one element in an integrated/co-ordinated response to domestic
violence. Counselling programs can run alongside the protection order regime without
being linked in this way. WESNET Draft Policy on Perpetrator Counselling Programs
sets out a number of principles which should guide these intervention programs, a copy of
which is attached. WESNET believes that giving the court power to direct counselling
would give rise to numerous problems, including the following:
· Unless it were to be included in every protection order, on what basis would a magistrate direct a particular defendant to attend? Would there be some sort of process instituted to assess defendants as suitable for counselling?
· What would be the sanction for failing to attend counselling as directed -- the defendant would be liable to arrest for breaching the order?
· There is a dearth of ‘prescribed’ or other legitimate counselling programmes of this kind, particularly in rural and remote areas.
In light of these policy considerations, and the intended function of a protection order WESNET does not support the inclusion of a power to recommend or direct counselling as part of a protection order.
WESNET recommends that that there should be no reference at all to counselling in section 5 of the Model Law.
Relationship with Family Court children orders (section 5(2)(d) & section 37 -38)
In section 5(2)(d) the Model Law directs magistrates to take into account "existing orders relating to guardianship or residence, contact or specific issues orders, or any other order with respect to parental responsibility..". Sections 37-38, right at the end of the Model Law, requires that the applicant for a protection order inform the court of any relevant contact order, and requires the court to consider its relevance. WESNET does not consider that these provisions are drafted in the best way to help achieve the objectives of the 1996 amendments to the Family Law Act. They were intended to reduce inconsistency between protection orders and child contact orders and so enhance the safety of women and children. The changes were prompted by a recognition of the serious physical and psychological harm that children can suffer as a result of being directly or indirectly exposed to domestic violence. Division 11 Family Law Act empowers magistrates to make, vary, suspend or discharge a Family Court contact order when making a protection order (see Family Law Act s68T). WESNET understands that magistrates are not using these powers, and that interaction between the State/Territory domestic violence protection order regimes and the Family Law Act is still poor. Protection orders are still commonly being made ‘subject to any pre-existing Family Court order’ despite the new powers that magistrates have to override them temporarily where necessary. Magistrates often do not have a copy of the Family Law Act to hand and their attention should be expressly drawn to the relevant provisions, which include Division 10 aswell as Division 11. WESNET urges the Model Law Working Group to consider any recommendations arising out of the review of Division 11 Family Law Act commissioned by the Office of Status of Women to improve the effectiveness of these provisions.
WESNET recommends that the Model Law should reproduce the relevant provisions of the Family Law Act which set out magistrates power in relation to pre-existing contact orders and that these should be placed along with sections 4 & 5 on the court’s power to make protection orders. WESNET also recommends that guidance for magistrates on this question be included in a Model Bench Guide to accompany the Model Law.
Complaints for protection orders ( section 7, pp26-27)
This provision sets out the categories of person who may make the application for a protection order, which includes the person in need of protection, police officers, parents on behalf of a child etc. As drafted, there is no obligation on a person or official to make an application.
WESNET believes that where the police are involved and have grounds to suspect a domestic violence offence has been or may be committed then, whether or not a person is charged, the police should always consider and discuss applying for a protection order. WESNET understands that the proportion of orders sought by police on behalf of women is much higher in NSW, where the police have a duty and not simply a right to apply, than in other jurisdictions. Although WESNET has some concerns about police applying for protection orders instead of laying charges (see Part 3), it is important that they take responsibility for protecting the victims and preventing violence as well as prosecuting offenders.
Consultations indicate some concern, particularly among Indigenous women, about the use
by police of their powers under domestic violence legislation. On the one hand,
there is concern about what might happen to Indigenous men if they are taken into custody;
on the other there is concern about police failure to respond to requests for assistance
from Aboriginal women. Examples of the latter include instances of Aboriginal women
being themselves arrested on outstanding warrants where they have asked police to initiate
a protection order application for them.
WESNET believes that, as in NSW, the police should be under a duty to apply for a
protection order on behalf of the victim, adult or child, if they suspect a domestic
violence offence etc has been or is likely to be committed. Detailed guidelines on
the circumstances in which such applications should be made, and the importance of
responding to the needs and concerns of victims, should be provided in Model Police
Protocols (See Part 3 below). These guidelines should emphasise the primary duty to
protect victims, and should be responsive to the experience and concerns of Indigenous
women.
WESNET recommends that the Model Law should include a provision that requires a police officer to apply for a protection order in circumstances where there are grounds to suspect a domestic violence offence has been or is likely to be committed, and to give written reasons where they do not do so.
Protecting and supporting children
Children comprise two thirds of those using SAAP funded domestic violence services, and over half of those accessing family services are children (see paper by Sally Gibson, WESNET Conference Papers, 1997, p40). Many women’s services pride themselves on being child-focused, although funding for children’s support services is woeful. Children’s access to protection orders is therefore an important issue for WESNET. The categories of people who should be able or obliged to apply for a protection order on behalf of children need careful consideration. The Model Law proposes that if the protected person is a child (under 18) the application can be made by a police officer, the child’s parent, any person with the parent’s written consent, or the child with the leave of the court if s/he is over 14.
The question arises whether children aged 14 and over should have to obtain the leave of the court before they can apply for protection on their own behalf. In the ACT a child under 18 can apply for an order and there is no requirement to seek the leave of the court. Not many applications have been made by children themselves and when they are made the court will generally first satisfy itself that the child understands the nature and purpose of the order, is competent to give evidence on oath and such like. It is also generally the case that where an application is made by a parent on behalf of a child who is aged 14 or over the court will want to be satisfied that the child consents to the order. There may be little difference in practice between the approach taken to applications by children where leave is required and that taken where it is not a formal requirement. However, obtaining the leave of the court before making an application is an added hurdle for a young person. WESNET considers it essential that children should have direct access to protection orders. At fourteen, children are becoming young people and many are having to fend largely for themselves. They can be sufficiently competent and independent to initiate their own complaints. Certainly they should have that option.
WESNET recommends that children aged 14 and over should be able to apply for a protection order themselves without a formal requirement that they seek the leave of the court
There is scope in section 7 for women’s service workers to apply with the leave of the court or the written consent of a parent. However, courts may not be receptive to their applications, as the workers in women’s refuges are often not recognised for their expertise and do not have the statutory role and authority that for example child protection workers employed by government child welfare departments have. There is ambivalence about increasing the legal role or responsibilities of workers in women’s services as they are already vulnerable and it would fuel the anger of perpetrators against women’s services if workers were routinely involved in or responsible for making such applications.
Child protection workers would also be able to apply with leave of the court under section 7, but may not see it as their role unless they are explicitly listed as a possible complainant on behalf of children. WESNET notes that there is a proposal in the ACT to enable the Children’s Court to make a protection order in favour of a child, either instead of or concurrent with a Care and Protection Order. The exposure of a child to domestic violence will be a ground for such applications to the Children’s Court (see Review of the Children’s Services Act 1986, Public Consultation Paper, August 1997, pp28-29). The intention is to give children better access to protection orders, and to increase the options open to the Children’s Court when considering an application for a care order.
WESNET recommends that child protection workers be expressly included in the categories of person who may apply for a protection order on behalf of a child. WESNET also recommends that the issue of Children’s Court powers to make protection orders be further considered by the Working Group.
WESNET believes there is a desperate need for more research and evaluation of different legislative models for supporting and protecting children who are subject to or witness to violence in their families. This research must examine the experience of the children themselves, who are often the last to be consulted about their own needs and concerns. WESNET notes that in New Zealand there is a presumption against continuing contact with the father where there is evidence of the father’s violence towards either the custodial parent or the child (see section 16B(4)(a) Guardianship Act 1968, NZ, as amended in 1995).
WESNET recommends 1) that the Domestic Violence Model Laws Working Group consider further the options for children and how to facilitate their access to legal protection; 2) that the Commonwealth fund an evaluation of the different models that already exist, including the interaction between magistrates/local courts, children’s courts and the Family court, and the role of police and child protection workers and other youth advocacy agencies.
The provision in section 7 enabling a complaint for a protection order to be made by ‘any other person with the written consent of the aggrieved protected person’ is particularly relevant to women with disabilities who may need or wish to seek an order through another person. However, a requirement of written consent is too restrictive for women with a writing disability or literacy problems.
WESNET recommends that this provision specify the consent, oral or written, of the protected person.
Other Barriers to Accessing Protection Orders
Apart from the question of who has standing to make a complaint or apply for a protection order there is a need to ensure that there are no barriers to accessing these orders. That is, for example, women of non-English speaking background may need access to interpreters to alert the police to their situation, and/or to apply to the court. Women with disabilities may also require interpreting facilities. Ensuring equality of access for people of diverse backgrounds is a basic requirement of equality before the law. The problems and a range of solutions are canvassed in the Australian Law Reform Commission’s report on Multiculturalism and the Law (ALRC No 57, Chapter 3, Language barriers to equality), and in their report on Equality Before the Law: Justice for Women (ALRC 69,Pt1, Chapter 7, Access to justice). Unfortunately, little progress has been made since those reports. WESNET supports the recommendation in ALRC 69 that "in matters involving domestic violence a woman should have a statutory right to appropriate interpreting services when giving evidence and to understand the whole proceedings. The cost of the interpreting service should be borne by the court." (rec7.3, p144).
WESNET recommends 1) that the Model Law should include a provision requiring the court to provide appropriate interpreting facilities; 2) that the proposed Model Police Protocol (see below) include detailed guidelines on the police duty to ensure urgent access to interpreters in domestic violence situations.
Court initiated orders (section 9, p28-29)
The DP proposes that where a defendant is convicted of a domestic violence offence, the court may itself initiate an order. WESNET understands that where such a provision exists (eg WA) it is little used by magistrates. This may indicate a lack of awareness or training about the purpose and utility of such a provision. It could usefully be dealt with in the Model Bench Guide that WESNET has proposed. WESNET also believes that it would be appropriate for this provision to be strengthened to require the court to make an order in these circumstances, ie where the defendant has been convicted of an offence involving domestic violence and there are grounds to make an order under section 4, unless satisfied that the ongoing safety of the victim is not at risk (eg where the offender is in prison long-term, or where the victim has gone overseas).
WESNET recommends 1) that the Model Law should impose a duty on the court where a defendant is convicted of an offence involving domestic violence to consider the ongoing safety of the victim and make a protection order unless satisfied that it is not necessary; 2) that guidance on the purpose and operation of this provision be included in the Model Bench Guide for magistrates.
Interim orders (section 10, pp30-33)
Interim protection orders made in the absence of the defendant are generally obtainable in an emergency, where there are problems serving notice of the application on the defendant, and/or where the defendant is likely to be violent and destructive when he learns of the application. Interim orders must be of sufficient duration and renewable to allow for difficulties in serving defendants in remote and rural areas, where the defendant is very mobile or avoiding service. In WA a complainant can now elect to have her initial application heard in the absence of the defendant, which seems like a good system designed to minimise the trauma for those needing an order. However, in practice WESNET believes that magistrates in WA are still reluctant to make orders on an ex parte basis. It is early days for the new system there but at this stage it appears not to be working as intended. It would clearly be extremely useful to have some systematic evaluation of the effectiveness of the new approach being adopted in WA.
WESNET considers that section 10 as presently drafted is both restrictive and confusing. It says that a court must not make an interim order unless ‘the complaint is supported by oral evidence’. It does not say whose oral evidence – section 10(4) refers to the complainant but the discussion in the text implies that it should be from the person in need of protection. The ‘complainant’ may be a police officer for example. As drafted, the order can only be granted on affidavit evidence (ie sworn written statement) where there is ‘incapacity’ to give oral evidence. WESNET strongly disagrees with this approach. There are many situations where it would be more appropriate, more efficient and less traumatic for the victim to give evidence by affidavit. In country areas the most practical approach may be to fax affidavit evidence to the court. It is clear from section 10(1) that the court has to be satisfied that there are grounds for making an interim order. It seems unnecessary to limit the kind of evidence it can receive in the way proposed. The court should be able to make an interim order in the absence of the defendant on either oral or affidavit evidence. It is also important that there should be no restriction on applications to renew interim orders, especially where there are difficulties locating or serving the defendant.
WESNET recommends 1) that the Model Law should provide an option for the protected person to elect to have her application for an interim order heard in the absence of the defendant; 2) that an interim order should be obtainable on the basis of oral or affidavit evidence ; 3) that interim orders should be of sufficient duration to enable defendants to be located and served and that in the event of difficulties in serving, there be no restrictions on the renewal of interim orders.
Telephone Interim orders (section 11, pp34-40)
Access to emergency protection orders by telephone is particularly important for women and children living in rural and remote areas, aswell as for after-hours protection. There is an issue of who should be able to make a telephone application. The proposal in the DP is that only the police should have the power to apply by phone for an order. In many situations where the police are involved, they should probably be using their powers under the criminal law to deal with the perpetrator and protect the victim (ie arrest and detention of the perpetrator) rather than relying on a telephone protection order. It is clear from section 11 that there will often be grounds to take more punitive action than applying for a telephone order. However, problems can arise if the police refuse to act. Incidents have been reported to WESNET where police have been asked, particularly by Aboriginal women in remote areas, to seek a telephone interim order on their behalf, and the police have refused. Obviously there may be situations where the police genuinely do not consider an application justified. WESNET welcomes the provision that requires the police to give written reasons for refusing to apply. However, there is ample research evidence of the failure of police to respond adequately to domestic violence, and of unsympathetic police responses to Aboriginal people and to people of non-English speaking background. Limiting the ability to apply for a telephone interim order to the police may adversely affect the protection of these groups in particular. WESNET therefore proposes that the Working Group consider making provision for other ‘prescribed persons’ to be allowed to make a telephone application. For example, a justice of the peace, women’s refuge or other community service worker, or persons nominated by the local Aboriginal Community Council.
The other important issue is the duration of telephone interim orders, currently set at 14 days unless otherwise ordered. This may not be long enough, in remote areas, where the defendant is difficult to serve or access to a court is very limited, and WESNET considers 28 days to be a more realistic standard.
WESNET recommends that prescribed persons other than police officers be empowered to apply for telephone interim orders, and that they be made to last for 28 days unless otherwise ordered.
Breach of an order (section 32, pp 76-79; power of arrest, section 33)
"Based on the findings of the current study, the enforcement process for breach of orders would appear to be the weakest link in the AVO process," commented the authors of the most recent study of protection orders (see Trimboli L & Bonney R, An Evaluation of the NSW Apprehended Violence Order Scheme, 1997, p69).WESNET understands that the two main problems in relation to breaches of orders are firstly a failure to prosecute breaches, and secondly a tendency by law enforcement agencies to implicate women in breaches. The latest data from NSW shows that police took no action in response to 73.2% of the breaches reported to them. The reasons given for inaction include the police claim that there was insufficient proof of the breach, or that the breach was too trivial, or that enforcement would antagonise the defendant(!). This inaction may help explain the other disturbing research finding, that most breaches were not reported to the police (ibid).
Even a Model Domestic Violence Law will only be as effective as those responsible for implementing and enforcing it are willing to make it. The Model Law needs to be backed up by a Model Police Protocols which spell out the importance of arrest and prosecution for breaches and the possible consequences for the protected person if breaches are ignored. Breaches that may seem trivial to the police can be stressful and frightening to the women and children involved. In terms of providing proof beyond reasonable doubt that a breach has occurred, the testimony of the protected person may be the only evidence but it should not be discounted. She may well be a more credible witness than the defendant. Often there will be other evidence, other witnesses, and investigative effort may be required to assemble the evidence. The effort will be rewarded if more effective enforcement of orders will reduce the toll that domestic violence takes on society in general as well as the individual victims.
WESNET recommends that, in conjunction with the development of this Model Law, the Australasian Police Ministers Council should be asked to produce a Model Police Protocol on Response to Domestic Violence which deals in detail with enforcement issues.
The DP asks for comments on whether it should be a defence to the breach offence that the protected person consents to the breach. This is a disturbing proposal. The suggestion that women ‘collude’ in the breach of orders recurs in various ways. There have been incidents of women being charged with ‘aiding and abetting’ the breach of a protection order, and in WA there is now a defence of consent. All of this obscures the fact that the protection order is binding on the defendant and he must bear responsibility for complying with its terms. Problems are perhaps most likely to arise where a woman has a protection order because she wants the violence to stop but she wants the relationship to continue. Providing a defence of consent would create further scope for manipulation and intimidation by the defendant. It would also surely further discourage prosecutions for breach, when the law should be encouraging and facilitating effective enforcement. It is in the whole community’s interests to ensure that orders are complied with and strictly enforced. There have been no cases in WA where a defendant has been charged with breach and pleaded consent in his defence, and the view there is that where the defence might be raised the breach will not be prosecuted. This confirms WESNET’s fears about the impact that making this defence available would have on enforcement. It also reinforces the point made earlier about the importance of restrictions in orders being properly tailored to a woman’s circumstances and needs.
WESNET recommends that a defence of consent to a breach should not be included in the Model Law.
Warrants (section 12, pp 42-43)
The proposed provision for issuing a warrant requires that the protected person’s safety would be "seriously threatened or that damage would be likely to be caused to property", which seems to set a harder test for the person’s safety than for property. The discussion in the DP however favours the WA model where there is now no provision for warrants. That, as the DP points out, is in the context of a different regime altogether, where there is supposed to be a right of access to ex parte orders and where there are specific police powers of detention to enable the police to obtain a telephone interim order. It is probably too soon to assess the impact of the changes in WA, and WESNET would again urge proper evaluation of the new provisions before they are adopted as a good model. WESNET tends to believe that it is very important to be able to issue warrants where a person’s safety is at risk, or where the perpetrator is avoiding service of a summons.
WESNET recommends that there should be provision for issue of warrants and that the grounds should include where there is evidence that the defendant is evading service.
Hearsay evidence (section 14, pp 44-45)
Evidence is all the information given directly to the court by a witness. The court will only consider evidence that complies with the ‘rules of evidence’. These vary to some extent between States and Territories. The ‘rule against hearsay evidence’ means a person should tell the court only what they directly saw and heard, not what someone else might have told them occurred. Whether evidence is hearsay or not can be a difficult legal question. The proposed Model Law provision would relax the rule which should simplify the process of obtaining a protection order. However, there are other rules of evidence which could give rise to problems –eg the rule against opinion evidence which prevents a person giving an opinion to the court unless they are an expert in the field. It is important that the court is fully informed about a person’s need for protection and is not hampered by technical restrictions which may lead to the exclusion of evidence and consequently the denial of a protection order.
The nature of domestic violence is such that it takes place in private, behind closed doors. The victim may not have disclosed the violence for a range of reasons and it is rare that there are any corroborating witnesses.
WESNET agrees that the court should have the power to admit and act on hearsay evidence when making an order. However we believe that this does not go far enough. Hearsay evidence is only one of many rules of evidence and there are other rules of evidence which may result in the court excluding important evidence WESNET submits that the Model Law should allow the court to inform itself as it thinks fit notwithstanding any rules of evidence to the contrary ( similar to the current provisions in Victoria and Queensland). If there is resistance to this, there may need to be a process for recognising the expertise of women’s service workers to ensure they can be called to give opinion evidence where necessary.
The development of a Model Law also provides a good opportunity to review more generally court procedures in domestic violence matters, in light of the experience of many women that the legal process can itself victimise them. It may be that a move away from the adversarial approach would be appropriate – placing the onus on the court to inquire into the matter in a more inquisitorial fashion rather than allowing the defendant to cross-examine the person seeking protection which can be traumatic. WESNET is aware of various pilot schemes establishing specialist courts or special procedures for hearing domestic violence matters (eg in SA and the ACT) and believes they should be evaluated and the results fed into the development of this Model Law.
WESNET recommends that the Working Group review the rules of evidence and court procedures more thoroughly, drawing on the experiments under way in various jurisdictions, with a view to developing a new model of best court practice for dealing with domestic violence matters.
Service of complaint (section 15 pp 44-47)
The Model Law provision is in fairly standard terms, requiring that a copy of the application be delivered to the defendant, and to the protected person if the application is being made by eg a police officer. Provision is made for substituted service. An alternative model is now operating in WA where the initial complaint may be heard in the absence of the defendant, in which case the application will not be served. Instead the interim order will be served on the defendant. Indications are that some magistrates in WA are tending to insist that the defendant be served with the application before they will grant even an interim order, while others are more willing to make an ex parte interim order where it has been requested.
WESNET recommends that the Model Law should contain the option for obtaining an interim order without first serving or attempting to serve the complaint on the defendant.
Explanation of orders (section 20, pp52-53)
WESNET supports the proposal to require the court to explain the proposed order to both parties, and the consequences for the defendant of breaching the order. The provision also requires that the explanation to the defendant "where it is reasonably practicable" be given in a language "likely to be readily understood" by the defendant. WESNET believes that both the protected person and the defendant should be provided with the explanation in a language that they can understand. Here again, it should be specified that the court has a duty to provide interpreters if necessary to ensure that the parties understand the proceedings. This should also include the provision of all necessary interpreting/communication facilities for people with disabilities.
WESNET recommends that this provision be amended to require the court to provide interpreters or other appropriate facilities to ensure the parties understand the explanation of the orders set out in section 20.
Variation, revocation and extension of orders (section 21, pp 54- 57)
It is important that there should be scope for applying to vary or revoke an order where circumstances change. Where access to a court is limited (in rural and remote areas) there should be scope for telephone applications for variations. However, repeated applications for variation can be used as another form of harassment by the defendant against the protected person. It puts her in the position of having to return to court to restate and confirm her case. In NSW the court may decline to hear an application for variation or revocation if it is satisfied that there has been no change of circumstances on which the making of the order was based and that the application is in the nature of an appeal against the order (section 562F). It may also be appropriate to provide for costs to be awarded against the defendant where the court is satisfied that an application for variation or revocation is unreasonable or vexatious.
WESNET recommends that the Model Law should enable a court to refuse to hear an
application for variation or revocation if it is satisfied that there is no basis for it
and that the application is really an appeal against the order. It should also
provide for costs to be awarded against the defendant where the court is satisfied that an
application for variation or revocation is unreasonable or vexatious.
Bail (section 29, pp 70-71)
The proposed provision applies the usual tests for bail, which tend to focus on ensuring the defendant’s appearance in court, rather than making the victim’s safety the central concern. WESNET supports the recent ACT amendment which specifies that a defendant may only be released on bail if the authorised officer is satisfied that the victim’s safety will not be jeopardised. It reverses the usual presumption in favour of release on bail, where domestic violence is involved (see ACT Bail Act 1992, section 8A).
WESNET recommends that the Model Law should provide for the defendant to be released on
bail only where the officer is satisfied that the victim’s safety will not be put at
risk by his release.
A statutory body to oversee implementation and to entrench an integrated multi-agency response to domestic violence
WESNET believes that an important purpose of a Model Law should be to underpin and support an integrated multi-agency response to domestic violence: one that can mobilise a criminal justice response and/or protection under the civil law, and that ensures access to appropriate forms of assistance. One way of doing this is to provide in the Model Law for the establishment of a statutory body to oversee and advise Government on the operation of domestic violence law, policy and programmes within that jurisdiction. This has recently been done in the ACT with the creation of the Domestic Violence Prevention Council under Part III Domestic Violence Act 1986. Most states and territories have some kind of Committee or Council with a similar advisory and coordinating function. Creating a statutory body entrenches these functions and helps ensure that that the law will be effective and responsive. It is also a way of ensuring community involvement in the ongoing process of implementation. Specific provision should be made for representation on the Council of those representing the concerns of non-English Speaking Background women and Aboriginal women. The inclusion of an Objects or Purpose clause in the Model Law could also help entrench such a co-ordinated response. It could reinforce the principles and purpose of the legislation, and assist in the interpretation of it. The New Zealand Domestic Violence Act 1995 has such an objects clause, and the ACT Community Law Reform Committee recommended one in Report No11, rec 11. Both of these are attached for consideration by the Model Laws Working Group. WESNET recommends that the Model Law should provide for the establishment of a statutory body to oversee and advise on implementation of an integrated multi-agency response to domestic violence. WESNET also recommends that the Working Group consider the utility of including an objects clause in the Model Law.
A statutory requirement to monitor the use and effectiveness of protection orders
The task of determining the best legal provisions out of the alternatives put in the Discussion Paper would be much easier if the legal provisions we do have were being properly evaluated. WESNET considers it essential that the effectiveness of domestic violence laws be monitored and evaluated in a systematic way. This is still not happening despite being recommended five years ago in the report for the National Committee on Violence Against Women by Sandra Egger and Julie Stubbs, Effectiveness of Protection Orders in Australian Jurisdictions (AGPS, 1993). They drew up a comprehensive checklist of data requirements. Reliable data to measure the outcomes for those seeking legal protection is still in very short supply. Such data as does exist is not generally compatible or comparable across jurisdictions. We need a national approach to data collection and analysis, and it needs to be built in to the legal system. Moves to establish a National Clearing House for Domestic Violence research may assist here. However, there needs to be one agency designated with the statutory responsibility to collect the necessary data, with the authority to require other agencies to provide it.
WESNET recommends that the Model Law should include a requirement for an appropriate government institution to collect such data as will enable the effectiveness of legal protection to be evaluated both within each State and Territory and on a national basis.
Creation of a new tort of
domestic violence
The development of this Model Law by the Working Group of representatives from Attorney
General’s Departments around the country provides an ideal opportunity to consider
the creation of a new statutory tort (or civil wrong) of domestic violence. This
would enable victims of domestic violence to sue the perpetrator for compensation or
damages for the harm they have suffered. The need for this was raised again recently
in the decision of the Full Court of the Family Court in Kennon (1997) FLC 92-757.
Existing torts of assault or trespass to the person for example have been recognised as
inadequate for meeting claims based on domestic violence, which is generally an ongoing
course of conduct rather than a single incident (see eg Equality Before the Law, ALRC
Report No 69, Part 1, para 8.7-8.8). WESNET is aware that such a tort may have
limited application as it would be reliant not only on the perpetrator being worth suing
but also on the victim having the resources to take such action. However, the law
should create remedies appropriate to the wrongs prevalent in our society. It also has an
important educative and symbolic function and.
WESNET recommends that the Working Group consider the creation of a new tort of domestic violence for inclusion in the Model Law.
Part 3: Wider concerns about a model legislative response to domestic violence
WESNET consultations have identified some key concerns about the framework within which the Model Domestic Violence Law should be developed. These can be summarised as follows:
The relationship between criminal and civil responses to domestic violence
WESNET believes that protection orders are an essential element in the legal response to domestic violence, and notes that the limited research that has been undertaken on their effectiveness shows high levels of satisfaction with them (for example, Trimboli L & Bonney R 1997 An Evaluation of the NSW Apprehended Violence Order Scheme). However, there is also widespread concern about the need to retain the emphasis on domestic violence as a crime.
Domestic violence is a crime and all States and Territories now recognise it as such (in theory at least). While all jurisdictions also have (civil) legislation to enable those affected by domestic violence to obtain orders for their future protection, this is not intended to detract from the primarily criminal character of the perpetrator’s behaviour. Where there are grounds to suspect that an offence has been committed, charges should be brought. The enthusiasm with which law enforcement agencies in some jurisdictions have latched on to protection orders may indicate that they are seizing the opportunity to avoid applying the appropriate criminal justice response. That is, rather than arresting and charging a perpetrator with a domestic violence offence they are applying for a protection order. In NSW for example, there is some evidence that while the numbers of Apprehended Violence Orders being obtained by police have risen exponentially, the percentage of cases in which charges are being brought remains at the same low level.
WESNET is concerned that a model statutory framework for obtaining and enforcing protection orders should not be drafted as if it is providing the full legal response to the problem – it is an adjunct or back-up to the criminal justice response not a substitute for it. The draft Model Domestic Violence Law does create an offence (breach of a protection order) and includes associated criminal procedures (arrest, bail etc) but it does not address the substantive offences involved in domestic violence. That may be more appropriately dealt with in the Model Criminal Code. The Code does include the range of offences with which domestic violence perpetrators may be charged, including assaults, threats, stalking, abduction etc, but in its present form it does not specifically define a domestic violence offence. A definition of a domestic violence offence can be useful both for purposes such as the application of special (protective) arrest and bail provisions, for monitoring purposes, and to assist in achieving the policy objective of prosecuting the perpetrators. It would also be timely for the Model Criminal Code to address the question of appropriate defences for women who kill their violent partners.
WESNET recommends that the Domestic Violence Legislation Working Group revisit the Model Criminal Code with a view to ensuring that it includes a definition of a domestic violence offence and appropriate defences for domestic violence victims who retaliate against their abusers.
Protecting the victims of domestic violence
In her speech to the WESNET conference, the Minister for the Status of Women, the Hon Judy Moylan, spoke powerfully about the gendered character of domestic violence. Disparaging "those who suggest there is some conspiracy about statistics which clearly demonstrate women are the main victims of domestic violence, let me say loud and clear to those who doubt the data: men must stop bashing women and their children." WESNET accepts that the law as drafted must be gender neutral, but is also concerned to ensure that the law protects the victims of domestic violence and that this is understood to be its primary purpose. In the DP concern is expressed at various points about the potential for abuse of the protection order system, and the need to ensure a fair hearing for defendants. As the DP itself acknowledges, there is no evidence of "rampant abuse" of the domestic violence legislation. This is confirmed in the latest report on Apprehended Violence Orders published by the NSW Bureau of Crime Statistics and Research referred to above.
WESNET believes in a fair hearing for defendants too but is concerned by the tone of some of the debate around protection orders which implies that an order binds victim and defendant in equal measure. In fact of course a protection order binds the defendant for the benefit of the victim/protected person. WESNET is concerned that women will be deterred from seeking protection orders if they fear that orders could be enforced against themselves eg by unsympathetic police officers. The principle of ‘protecting the victims/the vulnerable’ should inform the draft legislation at every stage, including eg the grounds for obtaining the order ; enforcement of orders; who can apply for orders. WESNET notes in this regard that the US Model Code on Domestic and Family Violence contains a ‘construction provision’ stating that "the Model Law must be construed to promote the protection and safety of all victims of domestic or family violence in a fair, prompt and effective manner".
WESNET recommends that in drafting the model law, the test to be applied when considering alternative approaches is "which version is most likely to deliver an effective outcome for those vulnerable to domestic violence?" WESNET also recommend that the Working Group consider including a ‘victim-friendly’ construction clause in the Model Law.
Promoting Implementation Strategies
WESNET believes that the production of a Model Law is a major contribution to the development of an effective national legal response to the problem of domestic violence. However, the project needs more scope. WESNET’s experience of domestic violence legislation in the States and Territories, and at Commonwealth level, demonstrates that at least as much effort must go into implementation and enforcement mechanisms as goes into drafting the law itself. The application of the law is inevitably subject to the discretion exercised by the police and the courts in particular, and its effectiveness subject to the policies and practices of a whole range of government and non-government agencies. WESNET believes that Model Laws must be backed up by Model Implementation Strategies, including a Model Police Protocol and a Model Bench Guide for magistrates, and ‘best practice’ training strategies. The purpose of these would be to guide and inform the exercise of discretion by key law enforcement agencies. They would provide more detailed guidance about the principles, purpose and intended effect of the law, and increase awareness and understanding among law enforcement officers of the nature, extent and seriousness of domestic violence.
WESNET recommends that the project of drafting a Model Domestic Violence Law be extended to include the development of Model Implementation Strategies by the appropriate Commonwealth and State departments and working groups in consultation with the community.
WESNET would like to see something along the lines of the Model Code on Domestic and Family Violence which was published in 1994 in the US by the National Council of Juvenile and Family Court Judges. It was produced through a process of extensive consultation, and comprises (in loose-leaf format) not only draft legislation but also detailed commentary and selected source materials. It represents both a substantial public policy statement on domestic violence and a constructive guide to action.
WESNET recommends that the Model Law be produced in such a form that it can be used as a practical guide to implementing a best practice legal response in the different Commonwealth and State jurisdictions.
WESNET (Women's Services Network)
National Secretariat,
GPO Box 1579
Canberra City,
ACT 2601
ph: 02 62471616 fax: 02 62471679
email: wesnet@antrax.net.au
NATIONAL WOMEN'S JUSTICE COALITION
mailto:nwjc@nwjc.org.au
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