Domestic violence laws in Australia

Introduction

1.1. The Australian Government Solicitor (AGS) is pleased to present this Report in response to the request from the Department of Families, Housing, Community Services and Indigenous Affairs (the Department) for a comparative analysis of the laws relating specifically to domestic violence in Australia and New Zealand. Our aim is to provide a Report to assist the National Council to Reduce Violence against Women and their Children in the development of its Time for Action report.

1.2. The Australian Bureau of Statistics reported in 2005 that physical assaults against women most commonly occur in the home, that family members or friends were the most likely perpetrators of physical assaults on women, and that, of those women who were physically assaulted, 46% (780, 500) were assaulted by a current or previous partner.¹ The position is worse for Indigenous women, who are estimated to be up to 40 times more likely to experience violence in the home than non-Indigenous women.²

1.3. Over the past several decades, governments at the Commonwealth, State and Territory levels have taken steps in response to domestic violence through legislative and non-legislative measures. The law can do much to discourage domestic violence – by making it a crime and attaching penalties intended both to punish and to deter offenders and would-be offenders, and by establishing mechanisms (such as protection orders) designed to protect and assist the persons against whom domestic violence is perpetrated or threatened. The law can also seek to change behaviours by, for example, encouraging or even mandating perpetrators’ participation in counselling programs. By conferring strong powers on the authorities of the state to deal with domestic violence, lawmakers can send a clear message to the community about what is acceptable and unacceptable behaviour in homes and families.

1.4. As requested, this Report provides:

an overview of all State and Territory and New Zealand domestic violence- specific laws providing for the making of protection orders;
a comparative analysis of what behaviours constitute domestic violence for the purposes of those laws, and what relationship must exist between the persons concerned in order for the legislation to apply;
a comparative analysis of the laws of each of the examined jurisdictions for the registration and enforcement of domestic violence protection orders made in other jurisdictions (‘portability’ of orders);
a comparative analysis of the laws of the examined jurisdictions in relation to orders which operate to exclude a perpetrator of domestic violence from that person’s home (where the perpetrator and the victim would normally cohabit);
a comparative analysis of the laws of the examined jurisdictions providing for counselling (both mandatory and voluntary) for perpetrators of domestic violence;
an overview of the laws of the examined jurisdictions that make stalking an offence;
an overview of the provisions in the Family Law Act 1975 (Cth) that have particular significance in relation to domestic violence; and
an analysis of areas where there is overlap and potential for conflict between orders or injunctions made under the Family Law Act 1975 (Cth) and orders made under the State and Territory domestic violence protection orders legislation.

Australian Government Solicitor
25 November 2008

Australian Bureau of Statistics, Personal Safety Survey: Australia (2005, reissued 21 August 2006).
J Mouzos and T Makkai, Women’s Experiences of Male Violence Findings from the Australian Component of the International Violence Against Women Survey (IVAWS), (Australian Institute of Criminology, Research and Public Policy Series No. 56, 2004).

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