Carr, Joanna --- "Law Reform: Time for Change" [2006] AltLawJl 40; (2006) 31(3) Alternative Law Journal 167

LAW REFORM: Time for change

• A human rights-based approach
• A new Act
• The recommendations

LAW REFORM
Time for change

JOANNA CARR^[*] reports that the Victorian Law Reform Commission finds Victoria’s family violence protection orders fail women.

In March 2006, the Victorian Law Reform Commission (VLRC) published its Review of Family Violence Laws Report (‘the Report’) — a comprehensive review of Victoria’s Crimes (Family Violence) Act 1987. This Act provides a civil protection order system for people experiencing family violence. Civil protection orders were first introduced in most Australian states and territories in the 1980s and 1990s.^[1] The orders were intended as an additional safeguard to the criminal law, not as an alternative to the laying of criminal charges. A protection order seeks to prevent further acts of family violence by restraining the actions of the perpetrator — often providing that the perpetrator cannot come within a certain distance of the home or workplace. If any conditions of the order are breached, this is a criminal offence. Applications can be made directly by individuals or by police officers on behalf of a victim.

The VLRC found that in many cases the protection order system fails to actually offer protection to women and children who have experienced family violence. The VLRC has made 153 recommendations for changes to the system, including legislative change and changes to practices and procedures within the justice system.

The recommendations contained in the Report are based on consultations conducted over two years with women who have experienced the legal system, community organisations, police, courts, academics and other experts. The overwhelming message from these groups was that the protection order system is not working. Participants told the VLRC that major changes must be made to ensure that protection orders are accessible, effective and taken seriously by police, courts and perpetrators of violence. Major problems included: difficulty in getting an order; inadequate or dangerous conditions included on orders; inadequate enforcement of breaches of orders; and minimisation of family violence by some magistrates, court staff and police.

A human rights-based approach

The VLRC has taken a human rights-based approach to its recommendations for change. The Report recognises that violence against women is a fundamental violation of human rights that serves to subordinate women. Violence against women has been recognised as a form of discrimination under the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and all Australian governments therefore have an obligation to take steps to eliminate it. International human rights instruments, such as the UN Declaration on the Elimination of Violence Against Women, are used to demonstrate particular areas where the law should be changed to reflect international standards.

The VLRC was also guided by five fundamental principles in its approach to making recommendations for change: non-violence, respect, empowerment, responsibility and accountability. The principle of non-violence recognises that all family violence is unacceptable because it is a violation of the fundamental right to live a life free from violence. The principle of respect requires hearing the views of those affected by violence and treating each person as a valuable and independent being. The principle of empowerment requires legal processes that encourage and assist people to plan for their safety and to live a life free from violence. The principle of responsibility recognises that the justice system should encourage perpetrators of violence to take responsibility for their actions. The principle of accountability refers to the need to ensure that perpetrators are held properly accountable for their violence in the legal system.

A new Act

The first recommendation made by the VLRC is that widespread overhaul of the law is necessary and that this should be achieved through the adoption of a new Act of Parliament, called the Family Violence Act. Currently in Victoria the Crimes (Family Violence) Act 1987 provides orders in ‘stalking’ matters, as well as family violence situations. These other orders often involve neighbourhood disputes and there is a perception that this has contributed to family violence not being taken as seriously by the courts. New legislation should include a more comprehensive definition of family violence, covering behaviour that coerces, controls or dominates a family member. This could include psychological or emotional torment and various forms of economic control, such as coercing a family member to sign a contract, as well as physical and sexual violence.

The VLRC has also recommended legislative change to ensure that orders are made to protect children in a wider range of circumstances. The VLRC found that some magistrates do not appreciate the serious consequences of exposure to family violence for children, and therefore may allow contact between children and perpetrators of violence in dangerous situations. The new legislation must make it clear that exposing children to family violence is a form of family violence and children should be protected from this. If contact is allowed between the perpetrator and any children, this should be clearly outlined in the order to ensure that the order is enforceable and does not expose the protected person to further violence at hand-over times.

The VLRC also found that some magistrates are reluctant to make orders that exclude the perpetrator of family violence from the home. Even though this option is allowed under the current legislation, it is not regularly used and women and children often need to leave the family home to escape the violence, exposing them to the risk of homelessness. Therefore the VLRC has recommended that the new legislation should provide more clearly for ‘exclusion orders’. If a victim of violence wants to remain in the family home, there should be a presumption that this will be provided for in the protection order.

The recommendations

The VLRC Report contains many recommendations to improve access to the Magistrates’ Court. Many women apply for protection orders without the support of the police. These applicants need access to legal advice and representation, to ensure that all relevant information is presented to the court and any conditions included on an order are tailored to the individual situation. Legal support should be provided through community legal centres for applicants and by Victoria Legal Aid for respondents. The Court should adopt a specialist listing approach for family violence matters, to ensure that all magistrates and court staff working on family violence have received professional development training. Specialist support services should be available at court for indigenous women, migrant women and women with disabilities, as these groups of women face particular obstacles to accessing the legal system.

The VLRC heard during its consultations that physically going to court can place women in danger of further violence. The courtroom itself must be made safe and accessible, and this includes private areas for making applications and separate waiting areas for applicants and respondents. The VLRC also heard that many women do not know whether the perpetrator of violence will be attending court to defend the application until the last minute. This causes unnecessary stress and anxiety and leads to practical problems such as not knowing whether to bring witnesses or other forms of support. The VLRC has recommended that respondents should be required to inform the court if they intend to defend an application.

Many applicants also find it difficult to know what information is relevant for an application, particularly when they do not have legal advice or other forms of support. Application forms and orders themselves are confusing and not easy to understand. The Report recommends that application forms and orders should be written in plain English so that those protected by orders, as well as those with orders against them, can easily understand what behaviour is prohibited.

It is also important that the process of giving evidence is made easier for applicants. The victim’s direct testimony is often the main source of evidence in protection order matters and giving evidence can be one of the most distressing and intimidating parts of the legal system for women who have been subjected to family violence. The VLRC has recommended changes to make it easier to give evidence, including through the use of closed circuit television, screening in the courtroom, closing the court to the public where necessary and preventing the respondent from cross-examining the applicant in person. Respondents should be provided with a lawyer for the purpose of cross-examination of the applicant, so that the process cannot be used as a further way to abuse and intimidate the victim of violence.

Finally, the VLRC supports the enormous changes that have recently been made by Victoria Police through the adoption and implementation of the Police Code of Practice for the Investigation of Family Violence. Victoria Police have been facilitating a crucial change in culture and approach to family violence within the police force, which is already having an impact in terms of increased numbers of prosecutions for family violence offences and increasing numbers of applications for protection orders being brought by police. The VLRC has recommended ongoing training and monitoring of the use of the Code to ensure that its provisions are applied by police officers to promote the safety of women and children experiencing family violence. The VLRC has also recommended the establishment of a specialist prosecution unit within Victoria Police to deal with family violence matters.

The recommendations of the VLRC are now being considered by the Attorney General Rob Hulls, as well as Victoria Police and the Magistrates’ Court. A draft Bill is being developed and will be available for community comment in the coming months.

The full text of Review of Family Violence Laws Report and a summary are available from the VLRC website: <http://www.lawreform.vic.gov.au> .

For hard copies of the Report, please contact the VLRC on 03 8619 8619.

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^[*] JOANNA CARR was a research and policy officer at the Victorian Law Reform Commission.

© 2006 Joanna Carr

email: [e-mail]

^[1] In Victoria protection orders are called ‘intervention orders’. In other states they are referred to as restraining orders, protection orders, family violence protection orders and apprehended violence orders.