ZACHARY O’MEARA
JD III
I Abstract
Domestic violence is widespread throughout Australian society. It devastates victims, families and communities. Over forty years ago, the Commonwealth legislated to make domestic violence a criminal offence.[1] These offences have become well-known in the court system and have achieved a higher profile in the Australian consciousness as a serious problem. Accordingly, there is a universal mindset in Australia to prohibit, stigmatise and discourage this behaviour.
In 2015, the Victorian government went one step further in the fight against domestic violence by conducting a Royal Commission to come up with recommendations to thwart its alarming increase. The Commission published its findings and made 227 recommendations for action. Neither the federal government nor other states and territories have conducted equivalent inquiries into the rise of domestic violence.
This paper argues that domestic violence is a national problem that requires a bi-partisan response. It begins with a historical and contemporary explanation of domestic violence in order to contextualise the policy challenge, before reviewing the applicability of the recommendations of the Victorian Royal Commission. It concludes by stating that the time has come to put aside parochial and jurisdictional issues to implement key recommendations nationally, including establishing the institutions required to manage the implementation of the recommended legislation.
II A Background of Domestic Violence in Australia
Domestic violence involves a complex range of human behaviours. It is a gross oversimplification to say that all stories of domestic violence are the same, but there is a reoccurring narrative that occurs within Australia. The story of domestic violence is one of physical, emotional, and financial abuse.[2] Typically, a current or former partner acts aggressively and sometimes violently towards their current or former partner.[3] The definition includes family violence that involves a perpetrator physically or emotionally abusing other family members, including children.
“Not until the criminalisation of marital rape in 1981 has this issue come to the forefront of the Australian consciousness.[6]”
In Australia, the occurrence of domestic violence has its long-standing and systemic roots in the patriarchy and cultural norms of Anglo-Saxon culture. This root has created a perception that domestic violence is a private affair between partners in the domicile.[4] It was believed to be guarded by the exclusivity of a relationship and outside legal intervention. Within the traditional Western legal system in the past, women were legally considered the property of men in their family.[5] Even in light of the female suffragette movement at the turn of the 20th century and the rise of secularism, human rights and feminism in Australia, legal reform in respect to domestic violence has stagnated. Not until the criminalisation of marital rape in 1981 has this issue come to the forefront of the Australian consciousness.[6]
The recognition of marital rape as a criminal offence paved the way for the identification of domestic violence as a criminal act. Before the 1980s, family law was believed to be the correct legal mechanism to resolve these issues, known more commonly as ‘marital conflict’.[7] Only when this conflict escalated into attempted murder or malicious wounding did the law intervene.[8] The legal system, created to protect the civil liberties of its citizens, had a blind spot on matters of gender inequality, autonomy and female identity. Indeed, the legal system was an additional challenge for women during domestic violence.[9]
Predominantly, domestic violence is a gendered criminal offence across Australia. A majority of the offenders are male, as high as 80.4 percent, and a majority of victims are women, as high as 71.1 percent.[10] Domestic violence is prevalent across all age groups, races, and ethnicities.[11] The rates are higher among younger women, Aboriginal women, and socio-economically disadvantaged women.[12] The correlation between domestic violence and disadvantaged backgrounds is significant, especially when alcohol is involved in the circumstances.[13] Indeed, alcohol is a factor in 36 percent of all domestic assaults, with a higher prevalence when other factors are involved such as public housing, residential instability, female unemployment, and parents under 25 years of age.[14] The statistics are even higher for domestic violence involving alcohol spikes in January each year. For example, on 1 January 2004, 51.7 percent of domestic assaults were categorised as alcohol-related.[15]
For a majority of domestic violence instances, intimate partners are the perpetrators.[16] The familiarity of the perpetrator to the victim creates a sense of normality and social acceptance of the aggressive behaviour in their relationship. This aggression may have flow-on effects of abuse, and due to the level of intimacy and dependency between the perpetrator and victim, it inhibits the victims from reporting the criminal offence when it occurs. By the time a victim of domestic violence reaches out to the criminal justice system for protection, they have often endured various forms of abuse for years.
In recent years, the courts have come to recognise high levels of psychological dependency as ‘battered-women syndrome’.[17] Essentially, this notion provides an explanation for the court and jury to contextualise the victim’s actions in a timeline of abuse. In certain circumstances, it may rationalise and provide a more reasonable understanding of the reactive response of domestic violence victims. This condition encapsulates a variety of circumstances, such as inability to flee due to the protection of their children, the perception of no alternative options in their circumstances, and the fear of threats to their life or to their children’s lives.
Battered women syndrome is recognised across all Australian jurisdictions and supports several defences where a victim reacts violently towards their abuser (though it is not a stand-alone statutory or common law defence). In criminal proceedings, a judge may direct the jury to place the accused’s violent reaction to their abuser in a timeline of long-standing domestic violence. As with the nature of jury trials, the jury may deem it a full defence in their deliberation and final verdict. For evidence to be admissible in court, the syndrome requires an expert diagnosis by a medical practitioner.[18] However, it remains highly debated among academics and practitioners. It runs the risk of pathologising battered women as abnormal and creates a certain stereotype which not all victims of domestic violence may align with.[19]
The patterns of domestic violence stem from the societal acceptance of violence against women. An example of this is male control over female decision-making. This control, in turn, undermines female independence, promoting rigid gender stereotypes and normalising peer relationships that focus on aggression and disrespect towards women.[20] Violence against women and children is deeply rooted in power imbalances between the genders, reinforced by societal and cultural norms within Australia.[21] Across all jurisdictions, there are existing policies that promote victim protection and offender accountability. However, these societal beliefs undermine their effectiveness in Australia. Since legislated as a criminal offence, much has changed in how Australians perceive domestic violence, however more must be done to educate the wider public about the nature of domestic violence.
III Fast Forward To The Modern-Day, What Has Changed?
“Criminalising domestic violence 40 years ago has not reduced the significance of the problem. This deterrence has failed.”
Criminalising domestic violence 40 years ago has not reduced the significance of the problem. This deterrence has failed. While acknowledging there are higher numbers of reported incidents due to more victims seeking justice, the rates of domestic violence have increased alarmingly. In one form or another, it occurs in Australia on an unprecedented level, with state police dealing with over 5,000 matters on average every week.[22] The breakdown of these matters is 264,028 per year, 5,064 per week, 723 per day, 30 per hour, and a case every two minutes.[23] These staggering statistics reflect the harsh reality for a large percentage of Australians, of which most are women.
Too often, domestic violence escalates to murder. Current or former male partners are killing one current or former female partner per week.[24] This equates to 79 percent of intimate-partner homicides in Australia.[25] One-quarter of all homicides in Australia are spouse killings.[26] In 2018, an estimated 63 women were reported to have been killed as a result of domestic violence-related circumstances, either being murder or as a result of the effects of partner or spouse violence.[27] While murder is not typical, intimate partner violence is a leading contributor to the illness, disability, and premature death of women aged from 18 to 44 years of age.[28] Victims of image-based or technological abuse, such as revenge porn, result in high levels of psychological distress among women. [29]
The costs of domestic violence are not just social, physical or mental. For the Australian economy, the financial cost of domestic violence is estimated to be $22 billion per year, as a result of its profound effects on the female workforce.[30] Interestingly, one of the significant barriers for victims is unemployment or fear of losing employment.
Apart from welfare benefits and family support, many victims are unable to access support networks and become homeless as a result of fleeing domestic violence. Domestic violence is the leading cause of homelessness for women and children in Australia.[31] The Victorian Royal Commission into Family Violence comes along way in providing a comprehensive analysis and recommendations for reform regarding this problem.
IV The Findings and Recommendations from The 2016 Victorian Royal Commission into Family Violence
In response to public outcry for a re-evaluation of policy, a lack of assistance to victims, and a re-assessment of government spending, the Victorian government established the Royal Commission into Family Violence on 22 February 2015. Politicians on both sides of politics acknowledged that family violence was the “most unspeakable crime unfolding across our nation.”[32] The existing legislation had proven inefficient in addressing the gravity and prevalence of domestic violence in Victoria.
“The sheer number of recommendations alone are an indication of the complexities of the offence. ”
The final report handed down 227 recommendations in March 2016. The sheer number of recommendations alone were an indication of the complexities of the offence. Primarily, the recommendations revolved around the systematic review of procedures and agencies created to deal with family violence. The report focused on continuity, adaption to current circumstances and collaboration across the whole system. It included improving and fast-tracking responses to the needs of victims, greater engagement and management by the criminal justice system, and the improvement of the health system for both victims and perpetrators of family violence.[33] Several recommendations emphasised the importance of fast-tracking the sharing of information between the relevant agencies that deal with family violence. The Commission identified that a holistic and cohesive response from law enforcement agencies and the courts was necessary to ensure that the state’s resources targeted the problem of domestic violence effectively.[34]
In the final sections of the report, there were proposed reforms for appropriate means when dealing with some of the most vulnerable people of our community. These groups consisted of Aboriginal and Torres Strait Islanders, elderly people, people from culturally and linguistically diverse communities, faith communities, LGBTIQ+, and people with disabilities. For these groups, the consensus was that the existing agencies created to deal with family violence do not engage in the level of collaboration needed for efficient intervention across the state.[35]
Within the criminal justice system, the report proposed reform to the specialised multi-agency involved in the reporting, sentencing, and rehabilitation of the offenders. The logic behind the proposal was to ensure adequate responses to a victim’s needs for support and protection.[36] The report advocated for enhanced powers to be given to magistrates in the sentencing process.[37] Furthermore, there was a call for more available options and power for public prosecution of family violence-related offences.[38] One of the underlying messages of the report was a call for greater education and upskilling of the framework to deal with the complexities of family violence.[39] The information-sharing regime would be vital to the police and court’s response. Reform to the legal system focused on adopting family law reforms, across all Australian jurisdictions, to enable police to arrest perpetrators for personal protection of the victims.[40] These recommendations have significant merit as the laws and punishments across the states and territories vary for family and domestic-related offences. A standardised approach would enable consistency and fairness in its application.
In regards to the Department of Health and Human Services, the report focused upon greater engagement with both victims and perpetrators.[41] By strengthening its risk management and practice guidelines, the department could increase its effectiveness and efficiency.[42] To achieve this goal, the Commission proposed a high level of engagement with mental health, drug, and alcohol services, where necessary.[43]
In demonstrating transparency and accountability, the Victorian government has created a website on the status and progress of each recommendation from the report.[44] This move by the state government is such a simple, but effective, marketing tool in maintaining public support and confidence in the state’s ability to utilise the expenditure of a royal commission efficiently and effectively. Most notably, the Victorian government has legislated and committed funding to implement all 227 recommendations from the Royal Commission. The state has performed 120 of these recommendations and is in the process of completing the remaining 107 as of January 2019.[45]
V Support and Criticism For Federal Implementation of the Victorian Royal Commission Recommendations
For the past 15 years, Victoria has been at the forefront of policy development and reform for domestic violence in Australia. However, other Australian jurisdictions have failed to legislate and adopt these progressive policies. In regard to investment in family violence related support networks, the Victorian government’s expenditure exceeds that of all other Australian states, Territories, and Commonwealth commitments combined.[46] It is difficult to determine whether Victoria is ahead of the times or whether the rest of Australia is drastically outdated in its mediocre response to domestic violence. One state’s proactivity does not excuse a languid federal response. Victoria cannot fix this issue alone. The fragmentation in the Australian landscape will overshadow the implementation of the Victorian Royal Commission recommendations. This issue requires a federal response, and if the federal government does not adopt the Commission’s recommendation, then it must be advised to conduct an inquest of its own. All sides of politics need to take a stance against domestic violence and ensure adequate funding to support agencies.
In theory, every recommendation handed down in the Royal Commission report applies to the other states and territories around Australia. However, other states do not have the framework and agencies set up to implement this reform. The fact remains that Victoria has set the standard and that the other Australian states and territories have failed to legislate change in their respective jurisdictions. On this issue, the need for legislative reform is desperate, and one proposal would be to implement domestic violence offences in the federal Crimes Act.[47] As federal legislation prevails over state laws, this could allow for a unified approach to criminalising domestic violence. Further, greater support for victims of domestic violence should be legislated for, such as through amendments to the Fair Work Act.[48] In New Zealand, domestic violence is recognised as a valid reason for paid leave in full-time employment and acts as a mitigating factor for women and children fleeing from violence.[49] This policy is a pragmatic approach to reducing the financial barriers and possibility of homelessness for victims of domestic violence and requires immediate implementation at the federal level.
One method for changing the cultural norms towards domestic violence would be to introduce a strategy similar to the powerful anti-smoking campaigns of the 1980s, 1990s and 2000s. Over 30 years of repeat advertising, smoking rates in Australia decreased significantly.[50] In recent years, there has been a marketing campaign against domestic violence but it needs to be on the same scale as the anti-smoking advertisements to have a similar lasting impact.
“... the current federal strategies and agencies are insufficient and ineffective and Australians are suffering as a result of it. ”
By legislating for reform at the federal level, the Commonwealth can make a significant impact on the deterrence of domestic violence in Australia. There is no one ‘bright-line’ solution to the complex issue of domestic violence. However, the current federal strategies and agencies are insufficient and ineffective and Australians are suffering as a result of it. There is a desperate need for a national framework to explain the nature of domestic violence in Australian society. The change needs to occur from within all levels of governments. Both the federal, state and territory governments must examine the Victorian Royal Commission report and come to a consensus on legislation to address the national problem of domestic violence.
VI Conclusion
The Victorian Royal Commission into Family Violence was instrumental in demonstrating the desperate need for greater responsiveness and collaboration between the agencies on the front line of domestic violence in the community. By commissioning and implementing the recommendations from the report, Victoria has led the way on this issue and highlighted the need for a comprehensive support network. In the aftermath of the Royal Commission, the fact that the Victorian Government legislated for the implementation of every recommendation is, no doubt, a step in the right direction. For Victorians, there will be new procedures in place to reduce the prevalence of domestic violence.
While the post-Royal Commission work continues to improve the lives of Victorians, there is a significant separation between Victoria and the rest of Australia. This paper has contextualised the issue of domestic violence within Australia and laid out arguments for the implementation of the Commission’s recommendations at the federal level. However, such a unified response to domestic violence requires all sides of politics, from every state and territory, to stand together and show leadership in addressing past failings.
[1] Family Law Act 1975 (Cth); Family Violence Act 1975 (Cth).
[2] Mouzos, Jenny and Makkai, Toni. 2004, Women’s experiences of male violence: Findings from the Australian component of the International Violence Against Women Survey IVAWS, Research and Public Policy Series No. 56, Australian Institute of Criminology, Canberra, 10, 41.
[3] New Oxford American Dictionary (2005), 2nd Edition, Oxford University Press.
[4] Mouzos and Makkai, above n 2, 40.
[5] Zaher, Claudia (2002). When a woman’s marital status determined her legal status: a research guide on the common law doctrine of coverture. Law Library Journal, 94(3), 460.
[6] Temkin, Jennifer (2002). "Defining and redefining rape". In Temkin, Jennifer (ed.). Rape and the legal process (2nd ed.). Oxford New York: Oxford University Press, 86.
[7] Allen, Judith. 1982, 'The invention of the pathological family: a historical study of violence in NSW', in C. O'Donnell, & J. Craney, (eds), 1-2.
[8] Ibid, 19-20.
[9] Ibid.
[10] NSW Bureau of Crime Statistics and Research, Trends & Patterns In Domestic Violence Assaults, Report (27 October 2005).
[11] Hogg, Russel, and Brown, David. (1998) Rethinking Law and Order, 63-6.
[12] Australian Bureau of Statistic. 1996. Ferrante et al, 1996, Women’s Safety Survey, Australia, <https://www.abs.gov.au/ausstats/abs@.nsf/mf/4128.0/>.
[13] Devery, Christopher. (1992) Domestic Violence in NSW: A Regional Analysis, General Report Series, NSW Bureau of Crime Statistics and Research, Sydney.
[14] People, Julie. 2005. Trends and patterns in domestics violence assaults, (October 2005), <http://classic.austlii.edu.au/au/journals/NSWCrimJustB/2005/5.pdf>.
[15] NSW Bureau of Crime Statistics and Research, above n 8.
[16] Victoria, Royal Commission in Family Violence (2016), Report, 2.
[17] Runjanjic and Kontinnen [1991] SASC 2951; R v Buzzacott (Unreported, Supreme Court of South Australia, Bollen J, 21 July 1993); J v The Queen (1994) 75 A Crim R 522; Secretary (1996) 5 NTLR 96; Muy Ky Chhay v The Queen (1994) 72 A Crim R 1; ABC News, Catherine Smith sues for malicious prosecution after being acquitted of attempted murder of abusive husband, Kevin Smith (11 December 2014), <https://www.abc.net.au/news/2014-12-10/woman-aquitted-murder-sues-nsw-malicious-prosecution/5958502>.
[18] Stubbs, Julie; Tolmie, Julia --- "Falling Short of the Challenge? A Comparative Assessment of the Australian Use of Expert Evidence on the Battered Woman Syndrome" [1999] MelbULawRw 27; (1999) 23(3) Melbourne University Law Review 709, < http://www.austlii.edu.au/au/journals/MelbULawRw/1999/27.html>.
[19] Ibid.
[20] The Guardian, Quit: a model for reducing family violence (28 August 2018), <https://www.theguardian.com/commentisfree/2018/aug/28/quit-a-model-for-reducing-family-violence>.
[21] Royal Commission in Family Violence, above n 14, 2.
[22] ABC News, Australian police deal with domestic violence ever two minutes (21 April 2016), <https://www.abc.net.au/news/2016-04-21/domestic-violence/7341716?fbclid=IwAR1NMG0uZFozuUYSBnLe7yk13aYZ2UDcFCwKTeLCevOmDI8rCQoMWi5bLh4>.
[23] Ibid.
[24] Our Watch, Change the story: ten actions to prevent violence against women, <https://www.ourwatch.org.au/getmedia/f5b5a777-15fb-49ed-934b-962d5c20a21c/Framework_4pp_A4_
Online_AA.pdf.aspx>.
[25] SBS: The Feed, Myth-Busting: The True Picture of Gendered Violence (15 June 2018), <https://www.sbs.com.au/news/the-feed/myth-busting-the-true-picture-of-gendered-violence>.
[26] Report to National Crime Prevention (Cth A-G’s Dept)—Ending Domestic Violence, 1999.
[27] SBS News, Counting Dead Women: The Project keeping toll of Australia’s hidden ‘epidemic’ (18 January 2019), <https://www.sbs.com.au/news/counting-dead-women-the-project-keeping-toll-of-australia-s-hidden-epidemic>.
[28] Ayre et al. (2016). Examination of the burden of disease of intimate partner violence against women in 2011. Sydney: ANROWS.
[29] Henry, N., Powell, A. & Flynn, A. (2017). Not just ‘revenge pornography’: Australia’s experiences of image-based abuse. Melbourne: RMIT University.
[30] KPMG. (2016). The cost of violence against women and their children in Australia. Canberra: Department of Social Services, <https://www.dss.gov.au/sites/default/files/documents/08_2016/the_cost_of_violence_against_
women_and_their_children_in_australia_-_summary_report_may_2016.pdf>.
[31] Australian Institute of Health and Welfare. (2017). Specialist Homelessness Services 2016–17. Canberra: AIHW, <https://whiteribbon.org/2WDrP6u>.
[32] Royal Commission in Family Violence, above n 14, v.
[33] Ibid.
[34] Royal Commission in Family Violence, above n 14, v.
[35] Ibid.
[36] Ibid, 61.
[37] Ibid, 67.
[38] Ibid, 57.
[39] Ibid, 57.
[40] Ibid, 129-131.
[41] Ibid, 52.
[42] Ibid, 53.
[43] Royal Commission in Family Violence, above n 14, 53.
[44] Victorian Government, The 227 Recommendations, <https://w.www.vic.gov.au/familyviolence/recommendations.html>.
[45] Ibid.
[46] The Guardian, ‘Stick to the plan’: major parties at odds over Victoria’s family violence strategy (8 November 2018), <https://www.theguardian.com/society/2018/nov/08/stick-to-the-plan-major-parties-at-odds-over-victorias-family-violence-strategy>.
[47] Crimes Act 1914 (Cth).
[48] Fair Work Act 2009 (Cth).
[49] The Domestic Violence – Victims’ Protection Act 2018 (NZ), s 72C, 72D.
[50] The Guardian, Quit: a model for reducing family violence (28 August 2018), <https://www.theguardian.com/commentisfree/2018/aug/28/quit-a-model-for-reducing-family-violence>.