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Domestic violence laws in Australia

Preliminary Matters

Scope of this Report

1.5. Consistently with our instructions, in preparing this Report we have examined how the relevant legislation operates at face value. It is of course another matter as to how well the legislative schemes operate, in practice, to respond to domestic violence and, more broadly, to ensure the safety of women and children. There is a large body of literature relating to the practical obstacles faced by victims of domestic violence in attempting to engage with the legal system in this context, as well as the limitations of a legal response per se. In preparing this Report, we have drawn on some of this material to provide context and insights into some of the issues, but, in line with our instructions, it is not within the scope of this Report to address practical obstacles of this kind.

Terminology used in this Report

1.6. There has been much debate as to what is the best or most appropriate terminology to use when addressing issues relating to violence between spouses, partners, family members and so on.3 Objections have been raised to both ‘domestic violence’ and ‘family violence’ (the terms most often used), and we acknowledge that both terms are problematic. Similarly, objections can be made to use of terms such as ‘victims’ of domestic violence.

1.7. In this Report, we generally use the term ‘domestic violence’, and we refer to ‘victims’ of domestic violence. Our use of these terms does not reflect any view on our part about the issues referred to above. Rather, we use these terms simply because they are probably the most-commonly used and best understood of the alternatives.

1.8. However, where we deal specifically with the Family Law Act 1975 (Cth), we use the term ‘family violence’. This is because ‘family violence’ is a defined term in that Act, and has a specific meaning in that context. In order to maintain accuracy, therefore, it is important to use the terms that are used in that legislation.

1.9. In the State, Territory and New Zealand domestic violence-related legislation examined in this Report, there is little consistency in the use of key terms, and this can make it difficult to generalise and compare across jurisdictions. For convenience, therefore, we generally refer to a protection or restraining order applied for or obtained under that legislation as a ‘domestic violence protection order’. Generally, we refer to a person who has applied for or obtained such an order as ‘the applicant’ or ‘the protected person’, and the person against whom such an order is sought or made as ‘the respondent’. However, in the overviews of the relevant legislation in Chapters 2-10 of Part 2, we use the terms used in the legislation itself.

The 1999 Model Laws Report

1.10. In April 1999, the Domestic Violence Legislation Working Group, comprised of Commonwealth, State and Territory officials, produced the Model Domestic Violence Laws Report.4 This contained model State/Territory legislation dealing with domestic violence protection orders, as well as commentary on specific features of the model.

1.11. In our Report, we refer to that publication as ‘the 1999 Model Laws Report’, to the model legislation it contained as ‘the 1999 Model Legislation’, and to the Domestic Violence Legislation Working Group as ‘the 1999 Working Group’.

1.12. We have found the 1999 Model Legislation a very useful tool in preparing this Report, and in a number of places we make comparisons between the provision that was made in the model and the provision made by the State, Territory and New Zealand legislation currently in force.

  1. For a discussion of these issues, see for example B Fehlberg and J Behrens, Australian Family Law: The Contemporary Context (OUP, 2007), pp 177-79.
  2. Commonwealth Attorney-General’s Department, April 1999.

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