Protection orders form a central plank of the various state and territory governments’ response to domestic violence. First introduced in New South Wales in the 1980s and known by a different names across Australia, protection orders are designed to provide a better, more responsive approach to domestic violence than had been provided by the criminal law.
Protection orders have clear benefits. They are relatively easy to obtain, address a range of behaviours beyond physical violence, look beyond incidents to the pattern of behaviour, and can be “tailor-made” to fit the needs of the victim.
But protection orders do not work for all victims of domestic violence. The case of Rosie Batty reminds us that even when people obtain a protection order, this does not mean that the order will be effective. Many orders are breached, often multiple times, and in this case ended in the tragic death of a child.
Breaches have long been seen as one of the weakest links in the effectiveness of protection orders. When a breach is not acted on appropriately, either by the police or the legal system, it undermines the effectiveness of the order, not only for that victim, but the system as a whole.
How many orders are issued?
The federal nature of our system means each jurisdiction has its own laws providing for protection orders, and while there is much that is shared there are also key differences. This means it can be difficult to compare statistics on orders sought, and any breaches of those orders.
From the data available for 2012-2013, Victoria experienced the highest number of applications, finalising more than 33,000; while Tasmania recorded the least applications, 913. This figure includes original applications and applications to change orders.
Most applications involve intimate partner violence, however many also involve violence by other family members.
Obtaining a protection order is a civil process in which the applicant or the police (on their behalf) need to prove to the court, on the balance of probabilities, that they require the protection of an order.
Any breach of that order, if made, is a criminal offence. Breaches rely on enforcement – either the victim, or some other person – reporting the breach to the police.
Do they work?
For many people who obtain an order, it is effective. The last extensive evaluation of apprehended violence orders in New South Wales (1997) found that for the vast majority the violence that they had been experiencing was reduced after obtaining an order.
A 2000 national study of the effectiveness of legal protection for young women (aged 18 to 23) found those who sought assistance from the police and obtained a protection order did not experience any increase in the severity of violence and over time, the violence reduced.
However, it is also clear that many people experience breaches. In 2012-2013 there were over 12,000 charges for breach of an order laid in Victoria (with over 33,000 orders made). And in Western Australia, there were 1,949 breaches reported to the police in 2011-2012, with over 5,000 orders being made in 2012-2013.
In NSW, the Judicial Commission reported that over a three year period (March 2008 to March 2011), more than 9,000 defendants were sentenced for a breach. For the same period, more than 100,000 orders were made.
These figures reveal a very small picture of the orders that are breached. They do not tell us how many people experienced breaches, simply the number of breaches officially reported in some way. Many breaches go unreported for a wide range of reasons, including fear that reporting may make things worse, previous poor response from the police, victims feeling they can deal with it themselves, and victims seeing the breach as minor and a waste of the police time.
It is also clear that some victims do report breaches and do not receive the response they need. Last year University of Sydney social work academic Dr Lesley Laing published a study of women’s experiences with the NSW ADVO system. A number of women complained that police did not act on breaches, did not treat the breach as serious, and were only interested in breaches that involved physical violence. They also reported inconsistent responses from one police station to another.
Others complained about the court response when the police did charge the perpetrator with a breach, with very small penalties being imposed, if any, when the defendant was found guilty.
In a study of over 600 breaches dealt with in the Queensland Magistrates Court in 2005, Professor Heather Douglas from the University of Queensland’s school of law also found a pattern of police and the court system undermining the harm suffered by women, long delays in the resolution of these charges, and very low penalties, if any, imposed on a finding of guilt.
In the end, we do not know enough about compliance. Why do some defendants comply with orders and others do not? Are the terms of orders clear to defendants? How can we better support victims to report breaches? What happens after a report is made? How can we reduce the rate of attrition?
The information we have to date is either old (the NSW evaluation, for instance, is from 1997), has a small targeted sample, or has focused on the written law rather than its practice.
Given the different laws across Australia, we need to know whether any of these differences are meaningful in terms of safety. Do victim’s feel safer in one jurisdiction compared to another? If so, why?
It’s important that any study on the effectiveness of protection orders does not focus solely on breaches. Studies here and overseas emphasise that there are many benefits from obtaining a protection order, including:
- a reduction in the severity and frequency of violence
- a feeling of empowerment and strength gained from reporting the violence and being believed
- being put in touch with other services that can assist.
Protection orders represent an incredibly important tool in reducing and preventing domestic violence. The effectiveness of this tool can be enhanced by turning our attention to implementation and enforcement.
The prevention of domestic violence is not just a question for law. While protection orders are important, effective prevention and reduction of domestic violence will come about through more effective integration of services. Family law, child protection and other areas such as education, health, and housing need to work together to assist victims of domestic violence.
The National Sexual Assault, Family & Domestic Violence Counselling Line – 1800 RESPECT (1800 737 732) – is available 24 hours a day, seven days a week for any Australian who has experienced, or is at risk of, family and domestic violence and/or sexual assault.
Read the other articles in The Conversation’s Domestic Violence in Australia series here.