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Family Law

Criminalising domestic violence: the law reform debate

By December 11, 2017October 21st, 2021No Comments

By Gianna Huesch

It seems a strange thing that legal experts should be debating whether or not Australia should criminalise domestic violence. After all, it seems a no-brainer that the more easily perpetrators can be brought to justice, the better for victims.

But questions are being asked around the Queensland Liberal National Party’s promise to create a “standalone domestic violence offence for non-violent offenders who had shown a pattern of psychologically controlling behaviour” similar to the offence of “controlling or coercive behaviour” which was introduced in England in 2015.  Is this just a political “quick fix” which wouldn’t actually do more to help victims in practice?

On face value introducing such a new offence here would seem to be a positive in Australia’s efforts to tackle domestic violence, but it is argued that it just isn’t as simple as creating more laws. Various bodies in the Australian criminal justice system including the Australian Law Reform Commission are apparently recommending against introducing such a law, and legal experts and academics continue to debate the issue in depth.

Psychological abuse is not criminalised in Australia except “indirectly when a court issues a protection order, intervention order or similar to protect a victim of family violence” [link below]. Breaches of such orders can include certain types of psychological abuse and result in the offender having committed a criminal offence. Stalking laws also deal with some forms of psychological abuse, but don’t apply in relationships where an offender and victim are living together.

The English law includes behaviours that cause a victim “to fear violence against them on at least two occasions, or that causes them serious alarm or distress that has a substantial adverse effect on their day-to-day activities” [link below] and is specific to behaviours occurring in personal relationships. As academics writing in The Conversation [link below] note:

“The offence of coercive control focuses on a pattern of abusive behaviour. This may involve unremarkable acts that, when viewed in isolation, are not criminal. Rather, it is about analysing behaviour that forms a pattern of abuse.”

The LNP in Queensland write on their website.

“For some years now many campaigns have run with the message that domestic violence is a crime. In Queensland and most other jurisdictions there is no specific offence of domestic violence to back up this claim. Only Tasmania has a domestic violence specific offence.”

To clarify the situation in Tasmania however, note that Heather Douglas, writing in the Melbourne University Law Review [link below] back in 2015, has pointed out:

“The ‘Safe at Home’ framework included the introduction of a new Family Violence Act 2004 (Tas). Within that Act two new offences of economic abuse and emotional abuse or intimidation were included. It is notable that these offences are included in the same legislation that regulates domestic violence protection orders rather than within the Criminal Code Act 1924 (Tas).  It is arguable that placing these offences within what is generally known as civil protection order legislation may be perceived to minimise or differentiate domestic violence as something less serious compared to other criminal offences.”

So would creating a new offence provide more justice for victims of domestic violence and better indicate its falling into the category of criminal behaviour?

The debate on whether a new offence is necessary or whether existing laws are sufficient centres around issues such as: the problem of how to define the behaviours to include, how to ensure police are able to identify when it is occurring, and how to prove coercion in the courts.  The academics writing in The Conversation point out the need for specialist police training and education, which “has yet to happen in England”, noting that:

“The implementation of this offence relies on a police officer’s ability to identify the potential presence of coercive and controlling behaviour, elicit information from the victim and correctly assess that pattern of behaviour. This requires that officers move away from assessing a particular “incident” and instead interpret a series of interrelated events and the harm that flows from these.”

They argue a more productive way forward might be for “better-informed expert testimony presented to the court in the case of very serious offences” and they suggest the need is to “strengthen civil remedies, service access and delivery”.  Other experts argue it would be more useful to amend stalking laws to also apply to domestic relationships).

We will keep you posted on developments.

Read more:

In the news: http://www.abc.net.au/news/2017-11-22/psychological-abuse-and-family-violence-do-we-need-new-laws/9176508 and

https://theconversation.com/australia-should-be-cautious-about-introducing-laws-on-coercive-control-to-stem-domestic-violence-87579

Heather Douglas’ article: http://law.unimelb.edu.au/__data/assets/pdf_file/0011/1774550/02-Douglas.pdf

Do you need legal advice in relation to a family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400 for an initial no-obligation, cost-free consultation.

Please note that our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance.

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