1.1 Apprehended Violence Orders (“AVOs”) are the primary legal means by which people may seek protection against actual or threatened acts of personal violence, stalking, intimidation and harassment. As the name suggests, AVOs are intended not only to put a stop to ongoing violence, but to prevent or apprehend potentially violent behaviour before it can escalate. The key factor in granting an AVO is fear: if the court is satisfied that a person fears on reasonable grounds that an act of violence, intimidation or harassment will be directed against them by another person, the court may issue an order to prevent such behaviour from occurring.
1.2 The type of behaviour which may ground an AVO is extremely broad. The actions may constitute criminal acts in themselves, such as actual or threatened acts of physical or sexual violence. AVOs may also be obtained to prevent emotional, psychological or financial abuse, such as withholding money from someone, and damage to property.1 Further, the grounds on which an AVO may be sought extend to cover actions which, in isolation, are not criminal in nature, and may not even be seen by some to be unpleasant, but may be extremely disturbing when those acts form a pattern of behaviour and when viewed from the perspective of the person to whom they are directed. A classic example is persistent telephoning or repeatedly sending unsolicited gifts, where that behaviour causes the recipient to have reasonable grounds in the circumstances to fear violence, intimidation or harassment.
1.3 Consequently, AVOs involve elements of criminal and civil law. The order itself is a civil order obtained from a local court2 on the balance of probabilities. Yet, an AVO may be based on actions which in themselves constitute serious criminal offences. Any conduct which breaches an AVO is also a criminal offence. Due to this association with the criminal law, the legislative provisions underpinning AVOs are contained in Part 15A of the Crimes Act 1900 (NSW) (“the Crimes Act”).
1.4 Since the introduction of AVOs in New South Wales 20 years ago, the number of applications has increased dramatically.3 Indeed, the jurisdiction of Local Courts under Part 15A represents its most significant workload outside the hearing of criminal offences.4 While AVOs originated as a means of preventing domestic violence,5 they can now be sought generally, regardless of whether the applicant and defendant are in a domestic relationship.
TERMS OF REFERENCE
1.5 In a letter to the Commission dated 28 March 2002, the Attorney General, the Hon R J Debus MP referred the following matter to the Commission:
In accordance with section 562Z of the Crimes Act 1900 (NSW) the Commission is to review Part 15A of that Act to determine whether the policy objectives of the Part remain valid, and whether the terms of the Part remain appropriate for securing those objectives.
1.6 The Commission considers that the Terms of Reference give rise to the following questions:
(1) What are the stated and implied policy objectives of Part 15A?
(2) What are the barometers that measure the validity, success or otherwise of those objectives?
(3) What is known about the operation of Part 15A, from consultation, research and statistics?
(4) Applying the criteria for success (identified in 2 above) to what is known about the operation of Part 15A, what issues emerge as the main strengths and weaknesses of the legislation?
(5) How can Part 15A operate more effectively to meet the policy objectives of the legislation?
The recommendations in this Report are aimed at addressing these issues.
TERMINOLOGY
1.7 Throughout this Report, the Commission refers to the person who applies for an AVO, or on whose behalf an AVO is applied for by a police officer, as the “applicant”. The person against whom an AVO is taken out is referred to as the “defendant”. The term “AVO” is a general one used to refer to the protection orders available under Part 15A. However, in practice, people are granted either an Apprehended Domestic Violence Order (“ADVO”) or an Apprehended Personal Violence Order (“APVO”), depending on the relationship between the applicant and defendant. There are some differences in the way Part 15A applies to each type of order, but largely the procedural elements and requirements are the same for each. Consequently, the Commission uses the terms “ADVO” and “APVO” when discussing the provisions peculiar to each type of order, but uses the general term “AVO” to discuss provisions common to both. This reflects the terminology and structure of Part 15A.6
1.8 In general, the Commission has a policy of using gender-neutral language. However, in some instances throughout this Report gender-specific terms are used: for example, when quoting directly from submissions that use such terminology, or where referring to particular services that represent only women (such as the Women’s Domestic Violence Court Assistance Scheme) (“WDVCAS”), or referring to submissions from either women or men, where to neutralise the terminology would distort the submission’s meaning.
OVERVIEW OF AVO LAW AND PRACTICE
Current provisions
1.9 Under Part 15A, any person may apply to a local court, for an order against another person if he or she suspects that some form of personal violence, or other abuse, harassment or intimidation, is occurring or is imminent. A police officer may apply for an AVO on behalf of an applicant, and must apply for an order where the officer suspects that a domestic violence offence7 or a stalking offence8 has been, or is likely to be, committed, or where the applicant is under the age of 16 years.9
1.10 As noted above, the applicant will seek either an ADVO or APVO, depending on the relationship he or she has with the defendant.
An application for an ADVO may be made where the applicant and the defendant are in a domestic relationship. A domestic relationship is defined as one where the applicant and defendant:
- are or were married or in a de facto (including same sex) relationship;
- are or were in an intimate personal relationship (whether or not there is a sexual element);
- share or have shared a household or residential facility;
- are or were in a relationship involving dependence or ongoing care (paid or unpaid); or
- are or have been relatives.10
Where the applicant and defendant are in a relationship other than a domestic one, the applicant must apply for an APVO.
1.11 The order may be granted if the defendant consents,11 or if the court is satisfied that a person, on the balance of probabilities, has reasonable grounds to fear, and does in fact fear:12
- the commission of a personal violence offence;13 or
- conduct amounting to harassment or molestation, being conduct sufficient, in the opinion of the court, to warrant the making of the order; or
- conduct which is either intimidating or amounts to stalking.14
1.12 Legal aid may be available for an ADVO applicant15 (but not if the application is frivolous, vexatious or has no possible prospects of success), but is not available for applicants in APVO matters. Defendants in either ADVO or APVO matters will be eligible for legal aid in exceptional matters only.16 After an application for an AVO is made, the defendant is notified by the court issuing either a summons or a warrant for the purpose of bringing the defendant to court.17 An AVO may be made on an interim or a final basis, and regardless of whether the defendant is present in court or not. The AVO will take effect when the order is served on the defendant. It can remain in force for as long as necessary18 and may be varied or revoked upon application to, and agreement by, the court.19
1.13 An AVO may contain “such prohibitions or restrictions on the behaviour of the defendant as appears necessary or desirable to the court”.20 While there is a standard form of order,21 an AVO may be tailored to suit the needs of each circumstance. A typical AVO may, for example, state that the defendant must not intimidate or stalk the applicant, or require the defendant not to “assault, molest, harass, threaten or otherwise interfere with” the applicant.22 AVOs can provide that the defendant must not go within a certain distance of the premises where the applicant works or lives, and can accommodate approaches by the defendant to the applicant for the purpose of complying with family law contact orders.23
1.14 If a defendant upon whom an AVO has been served knowingly breaches a restriction or prohibition contained in that order, he or she will be guilty of a criminal offence, carrying a penalty of up to 50 penalty units24 or 2 years imprisonment, or both.25
1.15 It should be noted that protection orders do not, and should not, act as a replacement for the laying of criminal charges in cases of violence, abuse, stalking or harassment. Part 15A specifically provides for situations where there are concurrent criminal proceedings arising from the same grounds as an AVO.26
BACKGROUND
Legislative history
1.16 The background to, and history of, AVO legislation is examined at length by the Commission in Discussion Paper 45, and need not, therefore, be discussed in as much detail here.27 However, the following synopsis is provided as it gives context to the purpose and intent of the current legislation.
Situation prior to AVOs
1.17 Prior to 1982, there was limited protection available for people who feared that they would become victims of violent activity in the immediate future. The criminal law only operated after violence had occurred, and conviction could only be secured if the offence were proved beyond reasonable doubt. Consequently, this did little to deter future violence, and presented particular difficulties in relation to domestic violence due to negative attitudes held by the community, the police and the criminal justice system which prevented it being taken seriously,28 and difficult evidentiary and other issues associated with the hidden nature of domestic violence.29 The criminal law also could not operate to prevent conduct, such as harassment, which did not amount to a crime.
1.18 The Crimes Act did provide for a civil “keep the peace” order,30 but this could not be tailored to include specific conditions, and breach of the order was not a criminal offence. Hence, that procedure was widely criticised at the time for being inflexible, unenforceable and ineffective.31
Original AVO legislation
1.19 The Crimes (Domestic Violence) Amendment Act 1982 (NSW) was the first legislation to provide for AVOs. That legislation implemented recommendations made by a Task Force on Domestic Violence established by the then Premier, the Hon Neville Wran QC MP, in response to the perceived failings of the existing domestic violence laws.32 The 1982 Act provided for flexible orders to be made by a court on the civil standard of proof, which could prohibit the defendant from undertaking certain actions in order to diffuse the threat of violence occurring. The orders could be tailored to include conditions appropriate to the needs of each case, and were enforceable since breaching them amounted to a criminal offence. However, they were quite limited in scope, covering only physical violence between married or heterosexual de facto couples.33
Widening the legislative net
1.20 The AVO provisions have been amended a number of times since 1982, generally to expand their scope and availability.34 The definition of domestic relationship was broadened to include others considered to be vulnerable to violence and abuse, such as separated heterosexual de facto and divorced spouses,35 and those who lived or had lived in the same house (apart from tenants or boarders).36 In recognition of the fact that violence has many forms, the type of behaviour for which an AVO could be granted was expanded beyond physical violence to include serious molestation or harassment,37 which may include actual or threatened damage to a person’s property, even where there has been no actual or threatened violence to the person.38 In 1993, a separate criminal offence of stalking or intimidation with the intent to cause fear of physical or mental harm was introduced.39 That same year, police were empowered to apply for telephone interim orders after hours in certain circumstances.40
1.21 In 1989, the AVO scheme was broadened significantly to extend beyond domestic relationships to cover all people who feared violence, molestation, harassment or intimidation at the hands of another.41 So, for example, people could seek an order to protect themselves from threats against neighbours or colleagues. This reflected a concern that the s 547 recognisance order was inadequate to protect those who feared violence outside of domestic relationships. It was considered preferable to extend Part 15A rather than enact a new part of the Crimes Act dealing with apprehended violence in non-domestic relationships.42 This amendment generated controversy at the time among those who were concerned that it would remove the emphasis on the particular problem of domestic violence, and that AVOs would be used in trivial or inappropriate ways.43
Placing the emphasis back on domestic violence
1.22 That concern developed momentum over the next decade, and spurred the decision in 1999 to create two separate categories of AVOs within Part 15A, dealing with ADVOs and APVOs. In his Second Reading Speech, the then Attorney General, the Hon J W Shaw, QC MLC, noted that the Government had been “most conscious of concern regarding the conflation of domestic violence matters with non-domestic or ‘personal’ violence matters under the AVO scheme” which had arguably “done a disservice to people experiencing domestic violence”.44 Mr Shaw stated that separating AVOs into two categories not only recognised the “difference in the nature and level of violence in domestic and non-domestic matters” but also established “significant legislative distinctions” in the ways in which ADVOs and APVOs are treated.45
1.23 The first such distinction is that authorised justices have a discretion to refuse to issue an APVO (except upon application by a police officer) which they consider is based on a complaint that is “frivolous, without substance or has no reasonable prospects of success”.46 There is no such discretion in relation to an ADVO. Secondly, the court has a greater discretion to award costs against complainants in APVO matters.47 For ADVOs, the test for awarding costs against private applicants remains based on a “frivolous or vexatious” complaint,48 whereas for APVOs, costs may be awarded where it seems “just and reasonable” to do so.49 The third distinction between ADVOs and APVOs is that, in ADVO proceedings, there is a restriction on disclosure of the protected person’s address or the complaint on which an order is based.50
1.24 The final distinction between ADVOs and APVOs is the inclusion of an objects statement in Division 1A of Part 15A relating to ADVOs. Those objects are essentially to prevent and protect against domestic violence.51 The provision states that the objects are to be achieved by empowering the courts to make ADVOs and ensuring speedy, inexpensive, safe and simple access to justice.52 Recognition is also given to domestic violence being unacceptable, perpetrated mainly by men against women and children, and occurring in all sectors of the community.53
1.25 Whether the court issues an ADVO or an APVO depends on whether or not the applicant and the defendant are, or have been, in a domestic relationship. Consequently, the definition of “domestic relationship” is highly significant. The 1999 amendments extended that definition to include people living in the same household or residential facility, and people in a relationship of ongoing, dependant care.54 This amendment is intended to reflect the “domestic contexts in which people live”,55 and, as a result, makes those people eligible to apply for ADVOs rather than APVOs. The definition of “de facto relationship”, a sub-category of domestic relationship, was also changed to accord with the definition in the Property Relationships Act 1984 (NSW) (“the PRA”).56
Other laws affecting AVOs
1.26 There are a number of other laws that impact on, and are affected by, Part 15A of the Crimes Act.
Bail
1.27 Part 15A provides that the Bail Act 1978 (NSW) applies to a defendant in AVO proceedings in the same way as it does to people charged with an offence.57 Under the Bail Act 1978 (NSW), there is a general presumption that bail be granted for particular non-violent offences.58 However, that presumption does not apply in relation to domestic violence offences or breach of an ADVO,59 in circumstances where the court is satisfied that the defendant has:
- a history of violence;
- been violent to the applicant in the past (whether or not the defendant was convicted of an offence in respect of that violence); or
- failed to comply with a bail condition in respect of the offence that was imposed by the court for the protection and welfare of the applicant (unless the court is satisfied that the defendant will comply with any such bail condition in the future).60
1.28 Under the Bail Act, an accused person is deemed to have a “history of violence” if he or she has been found guilty, within the last 10 years, of a personal violence offence committed against any person, or of contravening an AVO by any act of violence.61 Removing the presumption in favour of granting bail does not mean that bail will automatically be refused, but requires the defendant to prove to the court why bail should be granted.62 In deciding whether or not to grant bail, the court must take into account certain criteria, one of which is the protection of the alleged victim.63
Firearms
1.29 When making an AVO (either an ADVO or an APVO) the court may make an order restricting or prohibiting the possession of all or any specified firearms by the defendant.64 If such an order is made, the court may, by the order, require the defendant to dispose of any firearms in his or her possession and to surrender to the Commissioner of Police any licence permit or authority to possess the firearms in question.65 Further, a licence or a permit to possess a firearm must not be issued to a person who is, or who has, at any time within 10 years before the licence or permit application was made, been subject to an AVO.66 A licence or a permit is also automatically suspended when an interim AVO is taken out against the licence or permit holder,67 and automatically revoked if the interim AVO becomes final.68 The Firearms Act 1996 (NSW) also prohibits a person who is subject to an AVO from being a firearms dealer.69
Family law70
1.30 Where couples separate or divorce, orders may be made under the Family Law Act 1975 (Cth) (“the FLA”) detailing the contact arrangements between any children of the relationship and the non-residential parent. In situations where there is an AVO in addition to contact orders, the terms of the AVO and the contact order may conflict with each other. For example, B may have taken out an AVO against A, specifying that A not approach the home of, or telephone, B. Yet, under a contact order, A needs to pick up his or her children from B’s home, or telephone B regarding the children. The conflict is heightened if the children are included in the AVO.
1.31 When making an order under the FLA, the Family Court must have the best interests of the child as its paramount concern.71 Within that context, the court must ensure that any orders it makes are consistent with any family violence order and do not expose any person to an unacceptable risk of family violence.72 Division 11 of the FLA deals with the situation where there are contact orders and an AVO in place. The Family Court has the power to make contact orders that are inconsistent with family violence orders, in which case the contact order will prevail to the extent of the inconsistency with the family violence order.73 However, a State court, when making or varying a family violence order, has the power to make, revive, vary, discharge,74 or suspend a Division 11 contact order if the court considers that a person has been, or is likely to be, exposed to family violence as a result of the operation of the contact order.75
1.32 Part 15A also has provisions regarding contact orders made under the FLA. An applicant for an AVO, or an applicant to vary an AVO, must inform the court of any relevant contact order, or of proceedings pending in relation to contact orders.76 The court must have regard to the existence of a contact order when deciding whether or not to grant an AVO.77 The standard AVO orders78 provide that the defendant must not approach, contact or telephone the protected person(s) except as agreed in writing or for any purpose permitted under the FLA in relation to counselling, conciliation or mediation, or for the purpose of arranging or exercising access to children.79
1.33 Furthermore, the FLA and the PRA both contain provisions which allow for the making of injunctions for the personal protection of a party to a marriage or de facto relationship.80 The injunctions can be used instead of an AVO, and may relate to the occupancy or use of the home, restrain the other party from entering or remaining in the home, or from entering a specified area surrounding the home, or entering the workplace of the applicant.
Working With Children Check
1.34 The Child Protection (Prohibited Employment) Act 1998 (NSW) and the Commission for Children and Young People Act 1998 (NSW) aim to create safer environments for children by establishing the Working With Children Check to ensure that people who may pose a risk to children do not work in positions that involve direct, unsupervised contact with them. The Check requires employers in child-related industries81 to:
- ask all current employees and preferred applicants for positions vacant, in both paid and unpaid capacities, if they are a “prohibited person”;82 and
- request an Approved Screening Agency83 to conduct employment screening of all people commencing paid work that involves direct, unsupervised contact with children.84
1.35 Since 10 February 2003, the existence of a final AVO is one of the things that may be checked during the screening process, in addition to a national criminal record check and a review of relevant disciplinary proceedings the applicant may have had in previous employment.85 While the existence of an AVO will not necessarily preclude someone from gaining employment in a child-related field, it will be brought to the attention of a prospective employer.
THE COMMISSION’S REVIEW
Discussion Paper 45
1.36 In December 2002, the Commission released DP 45 which examined the major issues associated with Part 15A of the Crimes Act and posed a series of questions. That Discussion Paper was based on research, findings of previous reviews and preliminary consultations which gave rise to various issues. It was designed to promote feedback from those who have experienced, either directly or indirectly, the way in which the AVO system works in practice.
Submissions
1.37 In response to DP 45, the Commission received in excess of 60 written and oral submissions from a diverse range of groups and individuals, including advocacy and representative organisations, women’s refuges, regional community legal centres, community justice centres, government departments, the police service, and interested individuals.86 A number of these written and oral submissions from individuals revealed personal details of people’s experiences as applicants or defendants in AVO matters. Those submissions also included information about third parties, including children. While most of these people were happy for their stories to be told and their names to be made public, the Commission has decided that, due to the potentially adverse impact on third parties, a policy of confidentiality in relation to submissions revealing personal information is appropriate. Accordingly, while the issues raised have been considered by the Commission in the course of developing the recommendations in this Report, the names of those individuals do not appear in footnotes or in Appendix A.
1.38 Those submissions were extraordinary in their level of detail and quality, and have been enormously helpful and informative. The significant themes emerging from those submissions are discussed below and throughout this Report. The Commission would like to thank those who took the time to contribute to this review.
Consultations
1.39 In February and March 2003, the Commission undertook extensive statewide consultations on the issues raised in DP 45. Meetings were held in Sydney with Chamber Magistrates and the Family Law Reform Association. A community consultation was also held in conjunction with the Redfern Legal Centre and the South Sydney Domestic Violence Unit, in which a number of people from women’s refuges, the WDVCAS, legal aid, police Domestic Violence Liaison Officers (“DVLOs”), advocacy organisations and other support services participated. The Commission also attended a network meeting of the WDVCAS.
1.40 The Commission visited regional areas to hear first hand accounts of how Part 15A is working in practice. In addition to meeting with the Domestic Violence Unit of the Campbelltown Benevolent Society, the Commission attended seminars in Moree, Bourke, Orange, Newcastle, Gosford and Wollongong.
GENERAL THEMES IN CONSULTATIONS AND SUBMISSIONS
AVO legislation is generally effective
1.41 The general consensus in submissions and consultations is that Part 15A, while in need of some fine-tuning, is, for the most part, adequate and effective.87 Most people consider AVOs to be generally effective as a means of preventing violence, intimidation and harassment. While it is acknowledged that they cannot and do not eliminate violence in all cases, and may very occasionally exacerbate it, the overall view expressed in submissions is that these drawbacks do not detract from the effectiveness of AVOs as provided for in Part 15A. During the course of this review, the Commission heard from people who believe that AVOs are too readily open to abuse, or unfairly expose defendants to criminal liability for non-criminal actions. However, the majority of people, including those with negative views concerning AVOs, consider that the main problems lie with the implementation of the legislation rather than inherent defects in Part 15A,88 and that AVO legislation serves deserving cases well. In fact, nearly all of the submissions noted that the major failing of the AVO system was the way in which the legislation was being implemented, or in some cases, not being implemented, by the police and in the courts.
1.42 Overall, submissions expressed the view that AVOs were a more effective and appropriate means of preventing violence and harassment in domestic rather than other types of relationships. Most submissions suggested that alternative means of dispute resolution, such as mediation, may be a more appropriate method of dealing with APVO disputes not involving serious violence, and should be encouraged to a greater extent. However, the general view was that Part 15A should continue to provide for APVOs where mediation is not suitable, since there may be serious instances of violence, harassment and stalking in non-domestic relationships.89
1.43 The Commission heard from women who have experienced persistent domestic violence and harassment over a number of years. Many said that taking out an ADVO was extremely effective and empowering. It acts as a statement that violence will no longer be tolerated, may serve as a mechanism to end an abusive relationship, and often assists victims to come into contact with support services they may otherwise not have been familiar with. The Commission was told that the knowledge that there was some legal recourse to stop the violence gave these women a feeling of peace, safety and control over their destinies, and the well-being of their children, that they had never before encountered. Advocacy and support services noted that their clients report feeling safer after an AVO has been granted. Although there is always the reality that those who take action risk further violence, people have reported that, in their experience, legal responses to violence can and do work.
1.44 Domestic violence has traditionally been viewed as a private matter. Most submissions considered that AVOs have helped change that attitude by making it clear to both the applicant and the defendant that violence is not accepted by the community and is an appropriate matter for police and court intervention.
1.45 AVOs have also been instrumental in raising awareness, about domestic violence in particular, amongst the community, the legal profession and the police. This has in turn improved the response of the police and the legal system to domestic violence complaints, although significant problems still exist.90 Many submissions praised current initiatives such as the WDVCAS and DVLOs as being extremely beneficial in enhancing women’s access to AVOs and other support services, and advocate increasing these programs.
1.46 It was emphasised in many submissions that AVOs are only one method of violence prevention. The view strongly held in submissions and consultations is that AVO legislation should be part of an integrated system-wide response to violence prevention. Submissions suggest that such a response should encompass the criminal law; the provision of safe accommodation; counselling programs for perpetrators and victims; education and violence prevention programs for children and young people; continuing education for police, lawyers and judicial officers, particularly regarding domestic violence; free legal advice; and financial assistance.
Problems are primarily with implementation
1.47 The view expressed almost unanimously in submissions and consultations was that the greatest impediment to the effectiveness of Part 15A is the way in which it is implemented and interpreted by the police, the legal profession and Magistrates. The following factors are cited in submissions as having an impact on Part 15A:
- Understanding of the complexity of domestic violence isues and the attitudes towards victims held by police, judicial officers, court staff and lawyers. Where those attitudes are well-informed and take full account of the power dynamics involved in domestic violence, submissions report that the system can work very well. However, negative attitudes can impact significantly on the success and effectiveness of ADVOs. For example, if the view is held that domestic violence is less serious than other crimes, this may affect the willingness of police to use the powers they currently have under Part 15A and be proactive in pursuing ADVO complaints and prosecuting breaches of orders. Attitudes also affect the demeanour of police prosecutors, legal aid solicitors and court staff in their treatment of applicants and defendants, and the approach taken by Magistrates in determining applications. This can result in reluctance by an applicant to proceed with an ADVO application or to report a breach. Negative attitudes also counteract the deterrent value of an AVO for the defendant and lessen the applicant’s feeling of safety.
- Related to the previous point, submissions highlight a need for more public education regarding domestic violence and the purpose and intent of AVOs, to ensure that the issues are not trivialised. In particular, the need to develop more specialist expertise in domestic violence prevention within the police, the courts and the judiciary was highlighted.
- Inconsistency between different courts, and between Magistrates in the same court, in the interpretation of Part 15A can cause anomalies and injustice. Further, submissions assert a reluctance by some Magistrates to use the powers currently available to them under the legislation, particularly the power under section 68T of the FLA to vary family court contact orders to accommodate an ADVO, or to grant exclusion orders. Submissions and consultations suggested that specialist courts and Magistrates would go some way to addressing this.
- The need for greater funding and resources, particularly for translators and support services like the WDVCAS, and DVLOs, which are said to be working well and should be more widely available.
- Time pressures, growing court lists and cumbersome administrative processes often mean delays in applying for and granting AVOs, or can result in AVOs being issued without the underlying issues being fully understood or addressed, which can be detrimental to both parties.
- The lack of adequate, comprehensive and co-ordinated qualitative and quantitative research and data on most aspects of the AVO process, which causes anomalies in the system and prevents the detection of systemic trends and problems.
- The need to provide sufficient information to applicants and defendants, presented in a variety of languages and formats, explaining the AVO process and the consequences of an AVO for all parties involved.
- The allegations, put strongly by some, that both ADVOs and APVOs are being sought inappropriately. On one hand, where these allegations can be substantiated, the manipulation of the AVO system for ulterior motives can cause significant hardship for people wrongly accused, and brings the system into disrepute. Legislative and administrative solutions to such abuse of the AVO process should continue to be sought. On the other hand, however, focusing on these allegations promotes the negative attitudes towards AVOs, and domestic violence in particular, referred to in the first dot point above.
- The need to involve mediation to a greater extent where suitable (that is, not in cases of severe violence or harassment) during all stages of the AVO process to ensure that Part 15A remains true to its original intention.
- The need to address the significant difficulties associated with serving AVOs on defendants.
1.48 All of these implementation issues are discussed at great length in Chapter 3. Some flow directly into legislative amendments to Part 15A discussed by the Commission in Chapter 4. For example, the legislation can provide for an enhanced role for mediation and tighten the provisions relating to service of process. Naturally though, such legislative changes would still require proper implementation for the legislation to be truly effective. Other current problems which reportedly hamper the effectiveness of Part 15A, such as the lack of understanding of some police and judicial officers, and the lack of adequate funding and resources, transcend the legislation. In other words, these problems will persist regardless of any changes to Part 15A, and require a more lateral, holistic solution.
Need for caution in assessing effectiveness
1.49 In DP 45, the Commission pointed out the difficulties associated with assessing the effectiveness of AVOs as a violence prevention measure due to a number of factors surrounding the nature of AVOs and the behaviour they are designed to address.91 For example, while AVOs are granted on the basis of indications of past behaviour, they are essentially preventative measures aimed at future conduct that may or may not have occurred anyway, irrespective of the AVO.
1.50 Violence prevention is a complex issue, requiring a comprehensive response extending beyond legislation. As noted above, submissions acknowledged that Part 15A is only one element among many which need to work together to prevent violence. As also pointed out in submissions, it is important to recognise the limited effectiveness of any kind of legislation in an area where implementation is such a key element.
1.51 Furthermore, some submissions suggest that it would be a mistake to base an assessment of the effectiveness of Part 15A on purely empirical evidence. Apart from the fact that there is a dearth of such evidence, the symbolic effects of AVO legislation are significant and cannot be easily quantified.
1.52 It should also be noted that the question of whether or not Part 15A is being implemented effectively is largely a question of perspective. For example, some say that police are not proactive enough in applying for AVOs, leaving people in danger of abuse without protection. Others, however, are of the view that AVOs are granted too readily in some circumstances and that police and the courts should have more discretion in deciding whether or not to seek or grant an AVO.
STRUCTURE OF THIS REPORT
1.53 The structure of this Report reflects the main elements that contribute to the effectiveness of AVOs. Part 1 examines the underlying policy that guides AVO law and practice, and the way in which those policy objectives are given effect through the implementation of Part 15A. Part 2 looks at the way in which the objectives are achieved through the provisions of Part 15A itself.
1.54 Part 1 comprises Chapters 2 and 3. Chapter 2 examines the policy, in the broad and the narrow sense, that should guide the legislation and its interpretation. The Commission recommends:
- leaving the AVO provisions in the Crimes Act to reflect the seriousness of the behaviour that AVOs are intended to address;
- retaining and expanding the current policy objectives applying to ADVOs in Division 1A to include specific recognition of the impact on, and the need to protect the welfare of, children who are exposed to or witness domestic violence;
- including a separate statement of objectives applicable to APVOs in Division 1B; and
- the need to establish a pilot program whereby a specialist domestic violence panel is set up, initially in one Local Court with a high turnover of domestic violence matters, to deal with all aspects of violence, intimidation harassment and stalking in domestic relationships, including ADVOs.
1.55 In Chapter 3, the Commission highlights the views expressed in submissions and consultations concerning the way in which the provisions of Part 15A are being administered. The view expressed virtually unanimously in submissions and consultations is that the major factors hampering effectiveness of the legislation are associated with the implementation of Part 15A.
1.56 Part 2 of this Report consists of Chapters 4 through 12. Those chapters contain recommendations for changes to Part 15A aimed at remedying the implementation problems referred to in Chapter 3 and giving greater effect to the policy objectives of the legislation. Specific recommendations for legislative change include, among others:
- clarifying the definitions of domestic and personal violence;
- extending the definition of “domestic relationship” to include the concept of kinship in indigenous relationships;
- facilitating greater recourse to mediation at all stages of the AVO process in appropriate circumstances;
- streamlining the process for obtaining telephone interim orders;
- providing for third party applications for AVOs in limited circumstances to facilitate greater access to AVOs for children and young people and people with a disability;
- clarifying the nature of procedural fairness at hearings for interim orders;
- enabling police to have limited powers to arrest and detain a defendant in certain circumstances for the purpose of serving an interim or final AVO;
- providing for the situation where children are included on an AVO that is varied or withdrawn; and
- requiring Magistrates to consider certain factors during applications to withdraw AVOs.
FOOTNOTES
1. Conduct may amount to harassment or molestation even though it does not involve actual or threatened violence to the person, or consists only of actual or threatened damage to property belonging to, in the possession of, or used by, the applicant: Crimes Act 1900 (NSW) s 562AE(3) and s 562AI(3).
2. Where the defendant is under 18 years of age, the matter will be dealt with in the Children’s Court: Crimes Act s 562G.
3. Although the number of final AVOs granted by local courts is difficult to pinpoint. According to the Bureau of Crime Statistics and Research, 26,099 AVOs were granted in 2002: see «www.infolink/bocsar1.nsf/pages/lc_2002_avo». However, Local Courts NSW report a total of 22,326 final AVOs in 2002 from a total of 44,827 applications: NSW, Local Courts NSW, Annual review 2002 at 7. Note that this figure only refers to AVOs that were finalised, and does not include interim AVOs or AVOs issued from the Children’s Court. Accordingly, the total number of AVOs issued will be much higher. By way of comparison, 1,462 AVOs were issued in 1987: L Trimboli and R Bonney, An evaluation of the NSW Apprehended Violence Order Scheme (NSW Bureau of Crime Statistics and Research, Sydney, 1997) (“BOCSAR Report 1997”) at iii.
4. Local Courts NSW, Annual review 2002 at 7.
5. See para 1.19.
6. Part 15A is divided into sections: Division 1A contains the objects and provisions specific to ADVOs, while Division 1B contains the APVO provisions. Divisions 2-5 deal with the procedural requirements relating to AVOs generally.
7. A domestic violence offence is a personal violence offence committed within a domestic relationship, as defined in Crimes Act s 4 and s 562A. See definition of personal violence offence in Crimes Act s 4.
8. Crimes Act s 562C(3). Crimes Act s 562AB provides that a person who stalks or intimidates another person with the intention of causing that person to fear physical or mental harm, is guilty of an offence. The test for establishing that intention is an objective one: it is assumed to exist where the conduct in question is likely to cause fear: s 562AB(3). It does not matter whether the person being stalked or intimidated actually feared physical or mental harm: s 562AB(4).
9. Crimes Act s 562C(2A).
10. Crimes Act s 4 and s 562A.
11. The defendant may consent to the AVO without admitting the veracity of the claims upon which the application is based: Crimes Act s 562BA. Where the defendant consents, the AVO becomes effective immediately without the need to return to court.
12. It is not necessary for the person actually to fear the commission of a personal violence offence where the person is under the age of 16 years, or is, in the opinion of the court, appreciably below general intelligence level: Crimes Act s 562AE(2) and s 562AI(2).
13. “Personal violence offence” is defined in Crimes Act s 4 to include offences such as murder, manslaughter, malicious wounding and damage, sexual assault, indecent assault, assault with or without inflicting actual bodily harm, and breaching an AVO.
14. See Crimes Act s 562AE and s 562AI.
15. Providing the applicant and defendant are or were married or in a de facto or intimate personal relationship, and that the applicant can satisfy the general means test requirements. For applicants in other types of domestic relationships, legal aid is only available in exceptional circumstances: see Legal Aid NSW, Submission and «http://www.legalaid.nsw.gov.au/lac/lac.nsf/pages/avo_for_applicants».
16. See «http://www.legalaid.nsw.gov.au/lac/lac.nsf/pages/avo_for_defendants».
Exceptional circumstances include those where the person applying for legal aid has a physical, psychiatric or intellectual disability, and other options for resolving the matter have been unsuccessful or are inappropriate: see Legal Aid NSW, Submission.
17. Crimes Act s 562AF and s 562AJ. A summons is the dominant method of notifying the defendant in both ADVO and APVO proceedings.
18. Crimes Act s 562E.
19. Crimes Act s 562F.
20. Crimes Act s 562AE(4) and s 562AI(4). See also s 562D for an indication of the types of prohibitions and restrictions the court may impose.
21. Made pursuant to Crimes Act s 562BC.
22. See Standard Orders, Order 1. The Standard Orders are discussed further in Chapter 8.
23. Standard Orders 5 and 6.
24. A penalty unit is currently $110: Crimes (Sentencing Procedure) Act 1999 (NSW) s 17.
25. Crimes Act s 562I(1).
26. Crimes Act s 562O.
27. NSW Law Reform Commission, Apprehended Violence Orders (Discussion Paper 45, 2002).
28. While it is beyond the scope of this inquiry to analyse the broader issues of domestic violence, they have been well documented: see for example, N Naffin, Domestic violence and the law – a study of s 99 of the Justices Act (SA) (SA, Department of Premier and Cabinet, Women’s Advisor’s Office, 1985) (“Naffin Report”); Public Policy Research Centre, Community attitudes towards domestic violence in Australia (Australia, Office of the Status of Women, 1988); J Scutt, “Judicial bias or legal bias? battery, women and the law” in J Bessant, K Carrington and S Cook (ed) Cultures of crime and violence: the Australian experience (La Trobe University Press, 1995); H Katzen, “How do I prove I saw his shadow?” Responses to breaches of Apprehended Violence Orders, a consultation with women and police in the Richmond Local Area Command in NSW (Prepared for the Northern Rivers Community Legal Centre, 2000); R Alexander, Domestic violence in Australia: the legal response (3rd ed, Federation Press, Sydney, 2002).
29. See N C Seddon, “Legal responses to domestic violence – What is appropriate?” (1986) 58 Australian Law Quarterly 48.
30. Under Crimes Act s 547A. This has subsequently been repealed.
31. See for example, Naffin Report at 1-2; Australian Law Reform Commission, Domestic violence (Report 30, 1986) at para 85; J Stubbs and D Powell, Domestic violence: impact of legal reform in NSW (NSW Bureau of Crime Statistics and Research, 1989) (“BOCSAR Report 1989”).
32. For further discussion, see ALRC Report 30 at para 76-87; Naffin Report at 50-51.
33. Recognisance orders under the Crimes Act s 547 continued to operate for violence in other relationships.
34. For a further discussion of the legislative history of AVOs, see R Simpson, Incidence and regulation of domestic violence in NSW (NSW Parliamentary Library, Briefing Paper 4/2000) at 12-14.
35. Crimes (Domestic Violence) Amendment Act 1983 (NSW).
36. Crimes (Personal and Family Violence) Amendment Act 1987 (NSW).
37. Crimes (Domestic Violence) Amendment Act 1983 (NSW).
38. Crimes (Apprehended Violence) Amendment Act 1989 (NSW).
39. Crimes (Domestic Violence) Amendment Act 1993 (NSW).
40. Crimes (Domestic Violence) Amendment Act 1993 (NSW).
41. Crimes (Apprehended Violence) Amendment Act 1989 (NSW).
42. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 3 May 1989 at 7318.
43. See Simpson at 13; NSW, Attorney General’s Department, Criminal Law Review Division, Apprehended Violence Orders: a review of the law (Discussion Paper, 1999) (“CLRD Discussion Paper”) at 11.
44. NSW, Parliamentary Debates (Hansard) Legislative Council, 25 November 1999 at 3674.
45. NSW, Parliamentary Debates (Hansard) Legislative Council, 25 November 1999 at 3674.
46. Crimes Act s 562AK(3). There is a presumption against exercising that discretion if the complaint discloses allegations of a personal violence offence, a stalking or intimidation offence or harassment in the nature of racial, religious, homosexual, transgender or HIV-AIDS vilification: Crimes Act s 562AK(4).
47. Crimes Act s 562N. Note where a police officer lays the complaint, costs may not be awarded unless the officer knew that the complaint contained false and misleading information: Crimes Act s 562N(3).
48. Crimes Act s 562N(2).
49. Crimes Act s 562N(1)(b).
50. Crimes Act s 562AG. This restriction does not apply where the applicant (if over 16 years of age) consents to the disclosure, the defendant already knows the address, or if it is necessary to state the address in order to achieve compliance with the order.
51. The objects are contained in Crimes Act s 562AC(1), and are discussed in Chapter 2.
52. Crimes Act s 562AC(2).
53. Crimes Act s 562AC(3).
54. Crimes Act s 562A(3).
55. NSW, Parliamentary Debates (Hansard) Legislative Council, 25 November 1999 at 3675.
56. A de facto relationship is one between two people who live together as a couple and are not married to each other or related by family, and so includes same sex couples: Property Relationships Act 1984 (NSW) s 4. The amendment was made to the definition of de facto relationships in the Crimes Act by the Property Relationships (Amendment) Act 1999 (NSW) Sch 1.
57. Crimes Act s 562L.
58. Bail Act 1978 (NSW) s 9.
59. By an act involving violence or that would contravene the stalking and intimidation provisions in Crimes Act s 562AB: Bail Act 1978 (NSW) s 9A(1).
60. Bail Act 1978 (NSW) s 9A(1) and s 9A(1A).
61. Bail Act 1978 (NSW) s 9A(2).
62. Simpson at 19.
63. Bail Act 1978 (NSW) s 32.
64. Crimes Act s 562D(1)(c).
65. Crimes Act s 562D(3).
66. Unless that AVO has been revoked: Firearms Act 1996 (NSW) s 11(5)(c) and s 29(3)(b) and Weapons Prohibition Act 1998 (NSW) s 10(3)(b).
67. The suspension remains until the interim AVO is confirmed or revoked: Firearms Act 1996 (NSW) s 23(2) and Weapons Prohibition Act 1998 (NSW) s 17(2).
68. Firearms Act 1996 (NSW) s 23 and s 24 and Weapons Prohibition Act 1998 (NSW) s 17 and s 18.
69. Firearms Act 1996 (NSW) s 44A.
70. See Chapter 3 for a more detailed discussion of the issues involved in AVOs and family law proceedings.
71. The FLA sets out the factors that the court must take into account when determining what is in a child’s best interests. They include the need to protect the child from physical of psychological harm, the incidence of family violence and the existence of a family violence order: FLA s 68F(2)(g), s 68F(2)(i) and s 68F(2)(j).
72. FLA s 68K(1). Parties to proceedings who are aware of the existence of a family violence order must inform the court about the order: FLA s 68J(1). Non-parties may make such a disclosure to the court, subject to the appropriate Rules of Court: FLA s 68J(2).
73. FLA s 68R.
74. A State court cannot discharge a Division 11 contact order when making an interim family violence order, or an order varying a family violence order: FLA s 68T(2)(d).
75. FLA s 68T.
76. Crimes Act s 562FA.
77. Crimes Act s 562FA(2).
78. See Chapter 8.
79. Orders 5 and 6, respectively.
80. FLA s 114 and PRA s 53. Note that the PRA provision extends to the protection of a child ordinarily residing in the same household as the parties to the relationship: PRA s 53(a).
81. For details of the Working With Children Check, including how it works and the type of child-related employment covered, see «http://www.kids.nsw.gov.au/check».
82. A prohibited person is one who has been convicted of committing a serious sex offence punishable by 12 months or more: Child Protection (Prohibited Employment) Act 1998 (NSW) s 5(3).
83. The Approved Screening Agencies are the NSW Department of Community Services, NSW Department of Education and Training, NSW Department of Health, NSW Department of Sport and Recreation, Catholic Commission for Employment Relations and the Commission for Children and Young People.
84. See Commission for Children and Young People Act 1998 (NSW) Part 7. While screening is mandatory for all new paid employees, employers may choose to screen existing and/or voluntary workers.
85. Commission for Children and Young People Act 1998 (NSW) s 38(1) as amended by the Child Protection Legislation Amendment Act 2002 (NSW).
86. See Appendix A for the list of written submissions.
87. The views expressed in submissions are discussed in detail throughout this Report. Only a very general overview is provided here.
88. Problems concerning the implementation of Part 15A are discussed at para 1.47-1.48 below, and in Chapter 3.
89. Recommendations concerning the role of mediation in APVO disputes are discussed in Chapter 5.
90. See discussion at para 1.47 and in Chapter 3.
91. See DP 45 at para 1.17-1.20.
