6.1 One of the stated objectives of the legislation is to ensure “that access to court is as speedy, inexpensive, safe and simple as is consistent with justice”.1 At present, people seeking help or advice about obtaining an AVO can approach a solicitor, the Chamber Magistrate at the local court, a community legal centre or community advocacy group, a women’s refuge, the Legal Aid Commission or the police. Having received advice from one or some of the above, the person in need of protection or the police can apply for an AVO.2 If the police make the application, they can arrange for a police prosecutor to represent the person in need of protection. People who apply for an ADVO on their own behalf can represent themselves, or arrange for legal representation through legal aid, the Domestic Violence Advocacy Service or by hiring their own solicitor. Legal aid is not available for APVOs and for defendants in any AVO proceedings.
APPLICATIONS BY THIRD PARTIES
6.2 Some people may be more vulnerable than others in terms of applying for an AVO. This means that the AVO process is not accessible for those people. Recent research3 has found that only a very small number of women (10 out of 142) applied for AVOs although the vast majority (about 90%) went to the police. This indicates that there are significant barriers which may be due to various reasons including lack of knowledge about process or fear.4 The barriers faced by marginalised groups such as indigenous people, people from a non-English speaking background and/or who live in rural and remote areas, people with a disability, older people and children are discussed at length in Chapter 3 from an implementation perspective.
6.3 While the Commission has suggested various practical solutions that may help to remove the barriers to access in Chapter 3, another relevant issue that was raised in DP 45 was whether there is value in considering a legislative amendment to allow for third party applications, that is, people apart from the police who can apply for an AVO on behalf of a person in need of protection. The Commission received many submissions on this issue, both in respect of ADVOs and of APVOs.
Views in submissions
6.4 Some submissions expressed the view that the position ought to remain unchanged, that is, that only the police should be able to make third party applications.5 It has also been suggested that police should be required to assist in applications made by people who may be particularly vulnerable.6 Others suggested that the ambit of their powers be extended such that police should be required to make applications for APVOs on behalf of people with an intellectual disability who have experienced or are at risk of non-domestic personal violence.7 It was also suggested that the same obligation should apply in relation to children and young people, especially in relation to APVOs for schoolyard bullying where police may currently be reluctant to initiate proceedings.8
6.5 Others suggested that third parties should be able to apply on behalf of those with special difficulties such as people with intellectual disabilities, the elderly or children,9 people with other disabilities like agoraphobia,10 pregnant women who are at a notoriously high risk of abuse, and those who may find it difficult making repeated visits to court.11
6.6 It has also been suggested that the range of persons who can take out AVOs be extended to include employer corporations as well as individuals. For example, the Department of Housing is of the view that it ought to be able to take out an AVO on behalf of an employee.12 Similarly, the Department of Health expressed concern about whether an employer can take out an APVO on behalf of an employee if the employee is threatened at work, for instance where a patient threatened the staff in a hospital.13 Such threats could also be made against other employees, for example, court staff and refuge staff.14 The Department of Education and Training raised a similar concern where a school teacher is in need of protection. They suggested that it is preferable that a third party such as a Departmental officer should make the application as this will also reinforce the notion that the behaviour is deemed unacceptable at Departmental level and is not simply the view of the teacher. The legislation could include as the third party a departmental officer prescribed by the regulations.15
6.7 The role of a support person is an associated issue. Section 562ND provides that a party who gives evidence in a proceeding in relation to an AVO complaint or application (except children to whom s 27 of the Evidence (Children) Act 1997 (NSW) applies), may have a support person, for example, a relative, friend, guardian, carer or interpreter, near them in court when giving evidence. It has been suggested that this section be expanded or clarified to enable the support person to speak on behalf of the applicant in order to assist or expedite matters before the court.16 Although there is support and advice available from police prosecutors, Chamber Magistrates, DVLOs and WDVCAS, court rooms can add stress to what is already a traumatic situation, and mistakes can be made.17 Various examples have been cited to the Commission of parties agreeing to conditions in ignorance.
The Commission’s views
6.8 The Commission does not support the general availability of third party applications. However, the Commission acknowledges that there are some groups that are disadvantaged by their lack of understanding or physical incapacity who would benefit from third party applications being made possible. Each such group is considered below.
6.9 With regard to the role of a support person, while there may be value in permitting the support person to speak on behalf of the applicant, the Commission is reluctant to recommend such an amendment as it may lead to abuse. The Commission is satisfied that the current provision which allows a support person to be present serves the requisite purpose.
People with an intellectual disability
6.10 The Commission has been informed of the difficulties faced by people with an intellectual disability in obtaining an AVO. As applicants they are more likely than others to be victims of violence.18 They may have less access than others for a range of reasons including their limited capacity to protect themselves; the perception that they are an easier target because they may be less likely to complain; their lack of or limited knowledge about AVOs; fear where the perpetrator is a carer or fellow resident or staff member in a supported accommodation facility or carer; and lack of support.19 Difficulties to do with communication skills may be compounded by their limited capacity to move out of an abusive situation due to their lack of financial or social resources.
6.11 AVOs also cause difficulties for people with an intellectual disability as defendants. When AVOs are taken out against a person with an intellectual disability, the person may lack the capacity to understand the conditions imposed on them. It would not only be unfair to grant an order against someone who did not understand its terms, but would also offer no protection to the applicant.20
6.12 This issue was considered by the Commission in 1996 in its Report on People with an Intellectual Disability and the Criminal Justice System.21 One of the possible solutions considered was that matters involving a complainant with an intellectual disability should always be brought by the police, as is the case for children under the age of 16 years. However, the Commission did not support this option, as such a blanket rule may be inappropriate if police did not believe the person bringing the complaint, or had difficulty obtaining instructions from the person. As an alternative, the Intellectual Disability Rights Service (“IDRS”) suggested that in limited circumstances another person should be allowed to provide the supporting information on oath. With regard to defendants with an intellectual disability, the IDRS argued that AVOs should not be made against persons who do not have the capacity to understand and comply with the conditions imposed. The Commission suggested no legislative amendments to the Crimes Act on this issue but recommended that AVOs involving people with an intellectual disability be the subject of further consideration by the police and the Department of Community Services.22
6.13 The IDRS has again expressed its support for third party complaints on behalf of people with an intellectual disability.23 The IDRS finds it incongruous that Part 15A provides that an AVO may be granted to people with a disability even though they do not in fact fear immediate violence or abuse, yet does not provide for assistance for such a person to make a complaint.24 The submission identified circumstances where the police will not make a complaint on behalf of a person with an intellectual disability, for example, where there has been intimidation but no actual violence. Yet, such a person may be unable to make an application themselves due to the significant nature of their disability.25 The submission also noted that it is not sufficient only to allow the Public Guardian to apply on behalf of people with a disability. The Office of the Public Guardian sees its role as securing legal representation, but not actually extending to taking out an AVO.26 There will also be many instances where people may face barriers in applying for an AVO due to their disability, but do not have a guardian appointed under the Guardianship Act.27
6.14 Although the IDRS recognises the need for third party applications to be made available for people with an intellectual disability, they acknowledge the risk that such a provision could be used to interfere with the autonomy of the person. For instance, it may sometimes be used inappropriately where parents want to control the lives of adult children.28 However, the IDRS believes the risk can be minimised by requiring evidence to substantiate the complaint.
6.15 Accordingly, the IDRS has suggested a limited category of third parties (close friends, relatives, service providers, appointed guardians and advocates) who would have standing to apply for AVOs on behalf of people who lack capacity to make the complaint themselves.29 Others have suggested that the category should be restricted to people appointed as enduring guardians.30 Still others have suggested that the category of third parties be limited to the Protective Commissioner, Guardianship Board and DOCS, to guard against abuse.31 The IDRS has also suggested that the following requirements be included as an additional safeguard:
- The court must be satisfied that the person lacks legal capacity to bring the complaint themselves (IDRS notes that the majority of people with an intellectual disability will have the capacity); and
- police have refused to make the complaint; and
- the court is satisfied that the application is in the interests of the person with an intellectual disability.32
6.16 With regard to defendants with an intellectual disability, it has been suggested that s 37(2A) of the Bail Act 1978 (NSW) may be a useful precedent. Under that provisions, the court must be satisfied that the bail condition is appropriate having regard (as far as can reasonably be ascertained) to the capacity of the defendant to understand or comply with the condition.33 It has been suggested in this regard that in ADVO matters, the onus of proving incapacity should be on the defendant. In APVOs, if the defendant submits on reasonable grounds that he or she has an incapacity due to a disability, the onus should be on the applicant to show that the defendant is capable of understanding the terms of the AVO.34 The rationale for the differentiation is the fact that people with an intellectual disability are more vulnerable to inappropriate APVOs being brought against them.35
6.17 A related issue is to do with adults under guardianship orders who may have difficulty obtaining an AVO. These people often live in the community and are vulnerable to exploitation and harassment. There should be a provision in the legislation for guardians to apply on their behalf without having to make a special guardianship application to obtain the authority of a guardian ad litem.36 Some submissions suggested that the Act should also be amended to allow third parties to apply for an AVO on behalf of a person under public guardianship. Third parties should be the public guardian, private guardians and enduring guardians, as well as family members and friends of a person with a disability. This would negate the possible perception that the people with disabilities in need of protection must be placed under the restrictive provisions of a guardianship order.37
The Commission’s views
6.18 The Commission is convinced that there is a gap in the law in terms of the protection afforded to people with an intellectual disability. The Commission is also aware of provisions allowing for third party applications in other jurisdictions.38 However, the Commission shares the concerns of some agencies about permitting parents, friends, relatives and service providers who are not officially appointed as guardians to apply for an AVO on behalf of a person with an intellectual disability or others under guardianship.39
6.19 If a guardianship order has been made and it encompasses several areas of functioning, such as decision-making about accommodation and medical matters, the officially appointed guardian should have authority to apply for an AVO.
6.20 With regard to defendants with an intellectual disability, the Commission considers that it is implicit in the legislation that a person with a severe intellectual disability will be incapable of understanding the terms of an order and “knowingly” breaching the order.40
6.21 If Part 15A is amended to allow certain third parties to make applications on behalf of others, then consequential amendments should also be made to s 562F to allow a third party to apply to vary or revoke an order,41 s 562WA to allow a third party to bring an appeal,42 and to s 562N43 re the making of costs orders against a third party.44
RECOMMENDATION 18
Authorised third parties should be allowed to make applications on behalf of people with an intellectual disability, people under Guardianship orders and people with certain physical disabilities.
Children
6.22 Children are particularly vulnerable to abuse, both in terms of experiencing it themselves and witnessing others being abused, even if the violence is not directed at them or is not “intended”.45 Many studies have been done on the detrimental effects of such violence on children, even where they are not directly experiencing or witnessing it.46 The Child Death Review Team Annual Report47 notes the number of instances when child deaths have occurred in a familial context. The report has recommended the provision of sustained professional visiting for all high risk families for up to two years and that the Government should consider options to ensure that instances of children and young people at risk of harm are reported to the Department of Community Services.48 Currently, Part 15A imposes an obligation on the police to apply for an AVO if the person for whose protection the order would be made is a child under the age of 16 years.49
6.23 The Commission has received many submissions that express the view that officers of the Department of Community Services (“DOCS officers”) should also be able to apply for AVOs on behalf of children through the local court or the Children’s Court.50 The rationale for this suggestion is that DOCS officers have a comprehensive understanding of the children at risk. Additionally, it would streamline the currently cumbersome process where DOCS officers request police to make applications for children.51 Some submissions have suggested that DOCS should be required to make a complaint to the police if they believe violence has occurred, or is likely to occur.52 The Commission is also aware that the Children’s Court Advisory Committee is currently considering whether or not the Children’s Court should have the power to make AVOs against parents and others when dealing with care proceedings under the Children and Young Persons (Care and Protection) Act 1998.53
6.24 In practice, it appears that there is some variation across the State with regard to DOCS involvement in ADVO matters. There is currently no requirement that DOCS officers inform police about a domestic violence incident as a matter of course. However, Police Standard Operating Procedures require that police inform DOCS when there is a matter that impacts on children. It appears that when Police contact DOCS via the help line, DOCS in turn enquire into the matter and prepare a “risk of harm” report that is sent to the local community support centre for further follow up action.54 Some Magistrates also currently require DOCS involvement if children are present when the violence occurred. For instance, the Magistrate in Bourke requires that DOCS be notified if children are affected. DOCS make a notification on the records and get the Police to take out orders for children. This is however not a procedure that is followed consistently.55
6.25 Clearly there is reason for concern about the well-being of children in a home where domestic violence is prevalent. This is consistent with the provision in the Children and Young People (Care and Protection) Act 1998 (NSW) which requires consideration to be given to whether there is or should be an AVO when children are to be removed from a scene of domestic violence.56 The advantage of DOCS involvement is that the children are monitored and protected against further violence. This raises two issues for consideration: whether DOCS officers should be authorised to make third party applications and whether they should be required to refer matters of concern to the Police.
6.26 One view is that DOCS workers are investigation officers not prosecuting officers and that AVO applications should only be made by police.57 Others believe that police and DOCS officers ought to be able to apply but no one else.58 Still others suggest that people such as parents and guardians should be able to assist a young person over 16 to make an application.59 Those against DOCS involvement are of the view that it would cause problems for the mother if DOCS sought an AVO on behalf of a child against his or her father as it could cause further violence and may be unenforceable if the mother would not report breaches anyway.60 Those in favour of DOCS involvement say that protection offered to children should not be dependent on their good relationship with the police; many young people most vulnerable to violence are also the most marginalised from mainstream agencies.61 It is noted that a review of Western Australian domestic violence legislation recommends that social workers be able to apply for protection orders on behalf of a child who has been exposed to, or risks exposure to, domestic violence.62
6.27 A related issue once the matter is investigated is whether separate applications must be made on behalf of the children or whether they should be included in the parent’s application. There are differing views on this issue. Some feel that they should be included in the parent’s application,63 while others believe they should be subject to a separate AVO.64 Currently, it is common practice that children are attached to the parent’s AVO. This can cause many practical difficulties. Listing children on the mother’s AVO can have the effect of denying the father’s contact with the child/ren. Also, if the parent decides to vary or withdraw the application, then there will be no protection for the child/ren.65 However, the legislative requirement in the Children and Young People (Care and Protection) Act 1998 (NSW) that DOCS be notified when an application for withdrawal or revocation is made which concerns children appears to be working well in Newcastle.66
The Commission’s views
6.28 Children exposed to domestic violence whether directly or otherwise must be afforded maximum protection. The Commission is concerned that this may not always be the case in practice.67 While there is no doubt that DOCS officers are the most aware of situations where children are at risk, the Commission does not favour their direct involvement by being authorised to make third party applications. Their role is primarily of an investigative nature and not that of a prosecuting officer. However, given their experience, knowledge and expertise the Commission is of the view that they should work together with the police and refer all domestic violence matters involving or adversely affecting children to the police for further investigation. The Commission does not believe that such a requirement can or should be legislatively imposed. However, it is a matter for further consideration by DOCS.
6.29 With regard to whether or not Police should be required to make separate applications for children, the Commission is strongly of the view that children should be afforded protection independently of any decisions the parents may choose to make regarding withdrawal or variation. However, to require the police to make separate applications at the outset may be unnecessary given that appropriate protection becomes necessary only at the point of withdrawal or variation (by the protected parent). As such, to ensure protection at the time of withdrawal, the Commission recommends that a separate application should be made by the Police on behalf of child/ren only at the time of withdrawal or variation.
POLICE APPLICATIONS
6.30 Police officers must apply for an AVO if they suspect or believe that a domestic violence,68 stalking69 or child abuse offence70 “has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection an order would be made”.71 This requirement does not apply where the person is at least 16 years of age and intends to make the complaint themselves. This provision appears to have resulted in a significant improvement in police responsiveness with over 70% of ADVO applications brought by the police.72
6.31 However, Police officers need not apply if they believe there is good reason not to do so.73 It has been suggested that this discretion is not always used appropriately and that police should use their powers under Part 15A more effectively.74 There is evidence that some police refer people in need of protection to the court registry to take out their own ADVOs which should not happen.75 Some police do not have an adequate understanding of their powers under the Act.76
Is there a preference for police applications?
6.32 Anecdotal information suggests that the AVO process is generally more effective when police lay the complaint.77 Police applications have the benefit of being presented by the police prosecutor, so the applicant does not need to satisfy legal aid guidelines or engage private counsel.78 There is also an added educative benefit in that the defendant and the community see the officer in uniform or the prosecuting officer initiating the proceedings. This conveys the message that the offending behaviour in question is a crime.79
6.33 There is also costs insulation for the applicant where the Police lay the complaint. The victim can also distance themselves from the orders sought, which leaves less room for the defendant to place pressure on the complainant to withdraw than would be the case if they applied in person.
6.34 On the other hand, some find the process disempowering as they feel they have lost control and have no say about whether exclusion orders are sought or not, and what orders are sought generally.80 Some applicants may also choose to take out their own ADVOs for various other reasons, such as where they do not want to contact police at first instance or in cases where the defendant socialises with police. In a small number of cases police action may actually escalate the violence.81
Police discretion in relation to ADVOs
6.35 One of the major drawbacks to the effectiveness of police applications appears to be in their use of discretion. While there is a legislative requirement that police apply for AVOs in certain circumstances, there is still a degree of police discretion involved.
Arguments in favour of less discretion
6.36 The Commission has received many submissions expressing a wide range of views on the use of police discretion. Some are of the view that current provisions should be strengthened to provide for less police discretion in making complaints under s 562C and 562H(2A).82 Some fear that the use of police discretion could have detrimental effects on people with an intellectual disability.83 There is a view that police are not applying for orders in circumstances where they should be.84 There also appears to be a degree of variation in the approach of different police patrols which signals the need for more guidance on the exercise of discretion.85
6.37 Local Courts have submitted that the current provision whereby the police do not have to take out a complaint if the applicant intends to do so, is inappropriate. Often the applicant may express the desire to take out an AVO without realising the full range of options including the fact that police could make the application for them.86 As such, it has been suggested that s 562C(3A) should be qualified to provide that the person “expresses a desire to initiate apprehended violence proceedings without the assistance of the police”.87
6.38 Similarly, it has been suggested that the exception whereby police need not apply for an AVO if they believe there is “good reason” not to, needs to be considered further.88 Some submissions consider this exception inappropriate.89 It is claimed that more guidelines on circumstances that may constitute “good reason”90 must be provided, as inappropriate exercise of discretion could prejudice already vulnerable groups, for example, children and young people.91 It may be preferable that the discretion be exercised by a more senior officer above the rank of sergeant or by the officer in charge of the police station.92
Police applications where the person in need of protection does not consent
6.39 A somewhat controversial issue raised in submissions and consultations is the question of whether the police should be able to proceed with an application where they are convinced that violence has occurred, or there is imminent danger of violence occurring, but the person in need of protection does not want to proceed. Some police are guided by that person’s wishes, even when there has been violence or where there have been repeated call-outs. There are also many instances when the matter has gone to court previously and the applicant has said she or he has no “fear”, which is frustrating for the police.93
6.40 In such cases the question is whether the applicant should have any say at all. Some submissions have suggested that the onus should not be on the person in need of protection to decide whether or not to proceed with an application. He or she may be under pressure given a power imbalance or may wishfully think the problem will resolve itself once the actual violence or immediate threat has stopped.94 The experience of some agencies is that the applicant who would not pursue an AVO on her own behalf, is relieved that the responsibility for taking action is assumed by the police.95 For this reason it has been suggested that it should be mandatory for police to apply for ADVOs unless the officer knows there is already an AVO in place.96 Police should have the discretion to issue an AVO without the consent of the applicant97 where it appears the victim does not want the AVO out of fear of retaliation, making it clear to the defendant that the AVO is police-initiated.98 There is little real difference between police alleging the need to make an application for an AVO and the prosecution of a criminal offence; both may override the wishes of the complainant and rely on the officer’s good intent to act lawfully and fairly.99 Yet, domestic violence is a matter of community concern and may have far-ranging detrimental effects on children,100 so consent ought not to be necessary or relevant.
Arguments in favour of police discretion
6.41 On the other hand, some submissions suggest that the exercise of police discretion in s 562C(3) should require the suspicion or belief to be reasonably based.101 Police should have sufficient discretion either to proceed with the matter or not: sometimes the person in need of protection just wants help from the police to manage a difficult situation.102 The police should also have the discretion to withdraw a complaint upon the giving of appropriate undertakings by both parties.103
Police views
6.42 The police in their submission to the Commission have stated that they received mixed responses from the field on the issues of police discretion and applicant’s consent. While they acknowledge that the applicant’s consent is not required to proceed with an application, police experience shows that the applicant’s statement at the time of the incident can often be different to what is said in evidence later. According to the police, it is a well documented dynamic of domestic violence that the perpetrator makes promises not to repeat the violence which the person in need of protection believes and then some time later the victim is again at risk of violence. Yet when the application is pursued in court the victim often denies that she or he fears the person causing the violence.
6.43 In an effort to address this problem, police in certain commands have implemented a comprehensive, well-researched operation, whereby victims of domestic violence and “persons of interest” are “risk-assessed” and determined to be high, medium or low risk. Where the situation is deemed high risk, police gather additional evidence to establish to the court that the applicant does in fact fear and has reasonable grounds to fear. The operation was developed in consultation with domestic violence victims support services in the area. In this operation, consultation with police prosecutors and the magistrate has resulted in procedures taking into account evidence other than the applicant’s statement in court. This operation can clearly be seen to be guided by the objects of ADVOs, to “ensure the safety and protection of all persons who experience domestic violence and to reduce and prevent violence between persons who are in a domestic relationship with each other”.104
6.44 While it is clearly preferable for a victim of domestic violence to consent to assist in the process, the police have suggested that police discretion in applying for AVOs should remain unchanged.105
Police and APVOs
6.45 Currently, there is no requirement that police must make a complaint for a personal violence offence, unlike the requirement in relation to a domestic violence offence. However, police are not precluded from making an application for an APVO. Anecdotal information suggests that police have refused to apply for an APVO because they say they are “not allowed” to apply.106 It has been suggested that s 562C should be amended to make it clear that police can apply for an APVO107 and that police must apply in APVOs where there is evidence of serious assault.108
The Commission’s views
6.46 The Commission is mindful that the prevention of domestic and personal violence is a matter of public interest. Accordingly, there is a strong argument that police should be able to proceed with an AVO application where there is an imminent threat of violence, even where a person is reluctant to proceed with the complaint and at the cost of ignoring his or her wishes. The Commission is opposed to the police practice of asking the victim of domestic violence, in the presence of the defendant, if she or he wants an AVO. The Commission believes that the police must make that decision as a matter of course and that the complainant’s reluctance to proceed ought not be treated as a good reason not to make the complaint. The effect of this course of action would be that there would be no discretion in relation to acts or imminent acts of physical violence, for ADVO and APVO applications. Possible criteria for proceeding with making an AVO application despite the reluctance of the applicant would be where:
- there is a clear, immediate threat to the person’s life; or
- the person requiring protection has a clearly diminished capacity to apply for an AVO because of severe intellectual disability or a mental health episode that affects their cognitive functioning and has no guardian or other person qualified to make a third party application.
6.47 Where there is no immediate threat of violence, police should continue to have a discretion whether to apply for an AVO or not. In such a case, if the police decide not to make an application, they should be required to make a written record of reasons and a record on the COPS system. This would enable a record to be kept of the officer involved and the reasons given, which would offer greater accountability. The record would also assist in identifying behaviour patterns in persistent cases.109
FOOTNOTES
1. Crimes Act s 562AC(2)(b).
2. Crimes Act s 562C(2).
3. M Young, J Byles and A Dobson, The effectiveness of legal protection in the prevention of domestic violence in the lives of young Australian women (Australian Institute of Criminology, Trends and Issues in Criminal Justice No 148, 2000) at 3.
4. Margrette Young, Submission.
5. NSW, Department for Women, Submission; Manly Warringah Women’s Resource Centre, Submission; Legal Aid NSW, Submission.
6. Blue Mountains Community Legal Centre, Submission.
7. NSW, Department for Women, Submission.
8. Local Court NSW, Submission.
9. Blue Mountains Community Legal Centre, Submission; Graham Johnson, Magistrate, Submission.
10. Hawkesbury Nepean Community Legal Centre, Submission.
11. Hawkesbury Nepean Community Legal Centre, Submission; South West Sydney Legal Centre, Submission.
12. NSW Department of Housing, Submission, citing an independent report by the Australian Institute of Criminology (“Reducing risks of Occupational Violence in the NSW Dept of Housing” which suggested that the Department of Housing have standing to take out an AVO on behalf of a member of staff).
13. Orange consultation.
14. Gosford consultation.
15. NSW Department of Education and Training, Submission.
16. Erin’s Place for Women and Children, Submission.
17. Erin’s Place for Women and Children, Submission.
18. Intellectual Disability Rights Service Inc, Submission.
19. Intellectual Disability Rights Service Inc, Submission.
20. Intellectual Disability Rights Service Inc, Submission.
21. NSW Law Reform Commission, People with an Intellectual Disability and the Criminal Justice System (Report 80, 1996) at para 8.45-8.48
22. NSWLRC Report 80, Recommendation 35.
23. Intellectual Disability Rights Service Inc, Submission.
24. Intellectual Disability Rights Service Inc, Submission.
25. Intellectual Disability Rights Service Inc, Submission.
26. Intellectual Disability Rights Service Inc, Submission.
27. Wollongong consultation.
28. AVLICC, Submission; Legal Aid NSW, Submission.
29. Intellectual Disability Rights Service Inc, Submission.
30. Local Court NSW, Submission.
31. Graham Johnson, Magistrate, Submission.
32. Intellectual Disability Rights Service Inc, Submission.
33. Chief Magistrate, Local Court of NSW, Submission; Intellectual Disability Rights Service Inc, Submission.
34. Intellectual Disability Rights Service Inc, Submission.
35. Intellectual Disability Rights Service Inc, Submission.
36. University of Newcastle Legal Centre, Submission.
37. Office of the Public Guardian, Submission; NSW Police Service, Submission.
38. See Domestic and Family Violence Protection Act 1989 (Qld) s 14; Restraining Orders Act 1997 (WA) s 25(1)(c); Protection Orders Act 2001 (ACT) s 11; Domestic Violence Act 1995 (NZ) s 11 and s 12.
39. Multicultural Disability Advocacy Association, Submission.
40. See also discussion on breaches at para 10.11-10.46
41. See Recommendation 36.
42. See Recommendation 53.
43. See Recommendation 54.
44. Intellectual Disability Rights Service Inc, Submission.
45. Children’s Magistrate, Lidcombe Children’s Court, Submission.
46. T Brown, M Frederica, L Hewitt and R Sheehan (ed), Violence in families. the management of child abuse allegations in custody and access disputes before the Family Court of Australia (1998).
47. NSW Department for Children and Young Persons, Child Death Review Team Annual report 2001-2002.
48. NSW Department for Children and Young Persons, Child Death Review Team Annual report 2001-2002, Recommendations 1 and 2.
49. Crimes Act s 562C(2A).
50. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission. See Parliament of NSW, Legislative Council Standing Committee on Social Issues, Care and support: final report on child protection services (2002), Recommendation 57 at 131, where it is recommended that DOCS be empowered to apply for an AVO on behalf a child or young person under the age of 16. See also NSW Police Service, Submission.
51. NSW Police Service, Submission.
52. AVLICC, Submission.
53. Chief Magistrate, Local Court of NSW, Submission.
54. Telephone conversation with DOCS Domestic Violence Helpline Manager and Lisa Casternelly, Acting Manager Child Protection Policy Review Directorate
55. Bourke consultation.
56. See eg, Children and Young Persons (Care and Protection) Act 1998 (NSW) s 40, s 43, s 45(4) and s 233(2)(a)(ii).
57. Orange consultation.
58. Manly Warringah Women’s Resource Centre, Submission.
59. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
60. Wollongong consultation.
61. NSW Commission for Children and Young People, Submission.
62. See Western Australia, Report on a review of legislation relating to domestic violence (Department of Justice, November 2002) Recommendation 11 at 22. See also NSW Commission for Children and Young People, Submission.
63. South West Sydney Legal Centre, Submission.
64. Bourke consultation; Orange consultation.
65. Children’s Magistrate, Lidcombe Children’s Court, Submission; NSW, Department for Women, Submission; Newcastle consultation.
66. Newcastle consultation.
67. See also discussion on the proposed definition of domestic violence at para 4.6-4.22 and recommendation 8 regarding psychological abuse of a child.
68. See Crimes Act s 4(1).
69. See Crimes Act s 562AB.
70. As defined in Children and Young Persons (Care and Protection) Act 1998 (NSW) s 227.
71. Crimes Act s 562C(3) and s 562H(2A).
72. Jane Wangmann, Submission.
73. Crimes Act s 562C(3A) and s 562H(2B).
74. NSW Ombudsman, Policing of Domestic Violence in NSW (1999) at 13.
75. Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Jane Wangmann, Submission.
76. Local Court NSW, Submission.
77. AVLICC, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission; Legal Aid NSW, Submission; Local Court NSW, Submission.
78. Hawkesbury Nepean Community Legal Centre, Submission; Julie Stubbs, Submission; Redfern Legal Centre, Submission.
79. Shoalcoast Community Legal Centre, Submission; Redfern Legal Centre, Submission.
80. Mt Druitt and Area Community Legal Centre, Submission.
81. Law Society of NSW, Criminal Law Committee, Submission.
82. NSW, Department for Women, Submission; Hawkesbury Nepean Community Legal Centre, Submission; Legal Aid NSW, Submission.
83. Intellectual Disability Rights Service Inc, Submission.
84. Hawkesbury Nepean Community Legal Centre, Submission.
85. Legal Aid NSW, Submission.
86. Local Court NSW, Submission.
87. Local Court NSW, Submission. See also Blue Mountains Community Legal Centre, Submission.
88. NSW Commission for Children and Young People, Submission.
89. Local Court NSW, Submission.
90. Blue Mountains Community Legal Centre, Submission; Local Court NSW, Submission.
91. NSW Commission for Children and Young People, Submission.
92. Local Court NSW, Submission.
93. Newcastle consultation.
94. NSW, Department for Women, Submission; Newcastle consultation.
95. NSW, Department for Women, Submission; Newcastle consultation.
96. NSW, Department for Women, Submission.
97. Elizabeth Leathbridge, Submission.
98. Law Society of NSW, Criminal Law Committee, Submission.
99. Elizabeth Leathbridge, Submission.
100. NSW, Department for Women, Submission; Elizabeth Leathbridge, Submission; Newcastle consultation.
101. Children’s Magistrate, Lidcombe Children’s Court, Submission.
102. Law Society of NSW, Criminal Law Committee, Submission.
103. Law Society of NSW, Criminal Law Committee, Submission.
104. NSW Police Service, Submission.
105. NSW Police Service, Submission.
106. Jane Wangmann, Submission.
107. Jane Wangmann, Submission.
108. Blue Mountains Community Legal Centre, Submission; Domestic Violence Advocacy Service and Women’s Legal Resources Centre, Submission.
109. Erin’s Place for Women and Children, Submission.
