---

The police can get involved in domestic disputes following a complaint by the victim, someone known to the victim or a member of the public.

The police are most likely to get involved in domestic disputes after receiving a complaint from a victim. The police will also respond to complaints from concerned third parties (e.g., friends, families, colleagues or neighbors). In an emergency situation, where the victim is in immediate danger, there is an immediate fear that they will be in danger or, if their life has been threatened, victims or anyone concerned about the victims' well-being should call 000 and ask for police. In a nonemergency situation, victims and others are able to seek advice and assistance by going to a local police station. Many states and territories also have specific domestic violence units. For example, there is a specialist domestic violence unit within the Northern Territory Police in Darwin, Alice Springs and liaison officers in all major regional police stations within the Northern Territory.^[240]

Obligations on the police to act where domestic violence is suspected

The legislation in some states sets out the obligations on the police to act where domestic violence is suspected.

New South Wales

In New South Wales, an application for a protection order must generally be made by a police officer investigating the matter concerned, if they suspect or believe that a domestic violence offense or child abuse-related offense has recently been or is being committed, or is imminent, or is likely to be committed, against the person for whose protection the order would be made or proceedings have been commenced against a person for such an offense.^[241] However, the investigating police officer is not required to make an application if they believe that there is good reason not to do so or if the victim intends to make the application. In these circumstances, the police officer must make a written record of the reason.^[242] Reluctance of the victim does not on its own constitute a good reason for a police officer not to make an application if the police officer reasonably believes that the person has been the victim of violence or that there is a significant threat of violence to the person or that the person has an intellectual disability and has no guardian.^[243]

Victoria

In Victoria, the police are not obliged to investigate based on reasonable suspicion or to apply for orders. If a police officer has reasonable grounds to believe that it is necessary for the safety of a family member of the person or property of the family member, they may exercise their powers to give directions (such as to go to or remain at a place stated by the officer), apprehend and detain a person if they do not comply with a direction, or search a person who does not comply with a direction or is detained.^[244] A police officer who responds in person to a family violence incident can also apply to another police officer for a family violence safety notice if they believe it is necessary to ensure the safety of the affected family member or the property of the affected family member.^[245]

Queensland

In Queensland, if a police officer reasonably suspects that domestic violence has been committed, the police officer must investigate the complaint.^[246] If, following an investigation, the police officer suspects domestic violence has been committed, they are required to apply to a court for a protection order, variation of an existing protection order or temporary protection order, issue a police protection notice, take the respondent into custody, or take any other action appropriate in the circumstances such as taking the respondent to another place.^[247]

South Australia

In South Australia, police officers are not obliged to but can issue an interim intervention order against a defendant if it appears to the police officer that there are grounds for issuing the order and the defendant is present before the police officer or in custody.^[248]

Western Australia

In Western Australia, the police are required to investigate whether family violence is being or has been committed, or is likely to be committed, if the police officer reasonably suspects that a person is committing, or has committed, family violence that is a criminal offense or has put the safety of a person at risk.^[249] In these circumstances, a police officer can enter, without a warrant, premises to investigate whether family violence has been committed, to ensure that there is no imminent danger of family violence being committed and to give or arrange for any reasonable assistance.^[250] Following such an investigation, a police officer is required to make an application for a restraining order, make a police order or make a written record of why the officer did not take either of those actions.^[251]

Tasmania

In Tasmania, a police officer may enter, without warrant, premises to prevent family violence and can make a police family violence order against someone if the officer is satisfied that the person has committed, or is likely to commit, family violence.^[252]

Northern Territory

In the Northern Territory, a police officer may enter premises if they believe that a person has suffered, is suffering or is in imminent danger of suffering, personal injury at the hands of another person or another person at the place has contravened, is contravening or is about to contravene an order under the NT Act.^[253]

Australian Capital Territory

In the Australian Capital Territory, police officers are required to investigate a complaint. Police officers can apply for a protection order for an affected person or, if there is an immediate risk to an affected person of family violence or their property, can apply to a judicial officer for an after-hours order.^[254]

Police involvement in legal action 

Queensland: Domestic violence order

In Queensland, a person who is experiencing domestic violence can apply for a domestic violence order themselves or a police officer, lawyer, friend or family member can apply for them. Regardless of who applies, the court makes an order with the conditions it considers appropriate and the police enforce the order in the same way.

There are two types of domestic violence orders: a protection order and a temporary protection order.

A protection order is a domestic violence order made by a magistrate in court to protect people in domestic and family violence situations. Most protection orders last for five years; however, the order can be made for a shorter period, or be extended if the court determines it appropriate.

If a person needs immediate protection, they or the police can apply for a temporary protection order, which can be considered early by a magistrate. A temporary protection order is like a protection order, but for a shorter time, to protect those in danger up until the date that a magistrate can decide the application for the full protection order.

Every domestic violence order has a standard condition that the respondent must be of good behavior and not commit domestic violence against the aggrieved or any other person named on the order, including children, relatives or friends, if they are at risk of violence. When a court makes a domestic violence order, it sets out specific rules that must be obeyed by the person who has committed the violence. If a domestic violence order is made against a respondent and they have a weapons license, they can't own weapons and their license will be suspended, or canceled, and they can't hold another license for up to five years.

An order can also have other conditions, such as to stop someone from doing any of the following:

• approaching the aggrieved at home or work
• staying in a home they both currently share or previously shared, even if the house is owned or rented in the respondent's name
• approaching relatives or friends (if named in the order)
• going to a child's school or day care center

Police-initiated application

If a person experiences domestic violence in Queensland, a police officer can apply for a domestic violence order on their behalf.^[263]

Private application

If a person experiences domestic violence, they can make an application for a domestic violence order themselves or a lawyer, friend or family member can apply for them. If the applicant applies themselves, this can be done either online or by going to the nearest magistrates' court to complete and file the relevant form.^[264]

South Australia: Intervention orders

In South Australia, intervention orders can be issued by the police or by a court.

Laws have been passed in South Australia so that all domestic violence-related intervention orders made on or after 25 November 2017 will be nationally recognized and enforceable. This means, wherever the order is issued, it will apply in all states and territories. An application can be made in relation to orders issued prior to this date to have a court declare the order has national effect.

Police interim intervention orders

Police can issue intervention orders when called out to an incident if the need for the order is urgent. The police will:

• assess the risk to the victim and any children
• ask the victim to make a statement about what happened and why an intervention order is needed

If the victim and/or any children are considered to be at risk and the person causing the harm is present, the police may issue an intervention order and serve the order on the other person. The order begins to work as soon as it is served on the person.

The order will include a summons for the other person to appear in court at a set date and time. At the hearing, the magistrate will do one of the following:

• make the order permanent
• vary the conditions of the order
• accept the interim order and postpone the hearing for further consideration and/or information
• cancel the order^[265]

Applications for intervention orders

A person can also make an application for an intervention order themselves at a local police station when there has been some behavior toward them that amounts to a criminal offense, or the threat of such an offense. If there is no criminal behavior evident, the police can ask the applicant to make a private application to the court and will assist the person with that process.

At the police station, the applicant will be asked to make a statement about what has happened or has been happening and why an intervention order is needed. The statement will be sent to the police prosecutor to make sure that there are sufficient grounds to ask the court for an order. When it goes to court, the applicant will need to be present on the day but the police prosecutor will do the talking. If an intervention is issued by the court, it will be sent to the police to serve the order on the other person. The order will not commence until the other person has received the order.^[266]

Western Australia: Restraining orders

There are two types of restraining orders that can be granted in Western Australia: violence restraining orders and misconduct restraining orders.

If the violence is by a family member, a family violence restraining order can be applied for to protect a person from violence, threats of violence or any other behavior that coerces or controls them or that causes them to be fearful. A family violence restraining order can be obtained against a partner, ex-partner or another family member, such as a brother, sister or grandparent.

A violence restraining order protects a person from "acts of abuse" by someone other than a family member, which includes assault, kidnapping, destruction of property and behavior that is threatening or intimidating. The violence restraining order takes the form of a brief document stating who the parties are and what the person who is bound cannot do.

A misconduct restraining order can be used in instances where a person's behavior toward another person falls short of physical violence but still makes that person feel intimidated, causes damage to property or involves a breach of the peace. The court process for a misconduct restraining order is similar to that for a violence restraining order but at a final hearing, the magistrate can grant a violence restraining order even if the application was for a misconduct restraining order.

Police-initiated restraining orders

In some situations, a police officer may apply for a violence restraining order on an applicant's behalf. This will usually result in the issue of a police order that has a similar effect to a violence restraining order but only lasts for 72 hours.

In Western Australia, police are authorized at any stage of a hearing of an application for a restraining order made by another person, to conduct proceedings on behalf of that person, if the person requests.^[267]

Applications for restraining orders

Typically, to obtain a violence restraining order or a misconduct restraining order the person who has experienced the domestic violence must apply for it. This can be done at any magistrates' court in Western Australia. Following this, a hearing will be scheduled before a magistrate. If the applicant is in fear of the respondent, they can apply for the hearing to be held in the absence of the respondent. This is known as an ex parte hearing. At the hearing, the applicant will need to convince the court that there are grounds for the application. Usually, this will involve describing physical acts or threats made by the respondent. The court may grant a violence restraining order if the respondent has committed an act of abuse, and unless restrained, is likely to commit such an act again, or the applicant fears that the respondent is likely to commit an act of abuse. The court must also be convinced that a violence restraining order is appropriate in the circumstances. If the magistrate believes a restraining order is necessary, they will grant an interim order that is temporary and normally lasts for six months or until a court makes a final decision regarding the application.

The court will then take steps to serve the order on the respondent. The respondent is given 21 days to object to the order. If they object, it means that the respondent wants to defend the application and the matter will then proceed to a final order hearing. If the respondent does not object to the application, the violence restraining order will be made final and will normally last for two years.

If the respondent breaches a violence restraining order, the penalty is a fine of up to AUD 6,000, imprisonment for two years or both. The breach will be considered more serious if it involves a child being exposed to an act of violence. The penalty for breaching a misconduct restraining order is AUD 1,000. If a repeat offender has been convicted twice before of breaching a violence restraining order, then on the third occasion if they are found guilty of a breach, the penalty must involve a period of imprisonment.^[268]

Tasmania

Family violence orders and restraint orders can be sought in Tasmania to stop threats, property damage, violence, intimidating behavior and emotional abuse in the future. Orders essentially provide that the offender has to stay away from the applicant and/or to stop them behaving in certain ways. They are written to suit the particular situation. A family violence order is against a person that the applicant is in a family or domestic relationship with. An authorized police officer can also issue a police family violence order.^[269]

Police family violence order

Private application

A family violence order may involve an urgent hearing if an interim order is needed, a hearing to give the respondent an opportunity to say whether they consent to the order, and a final hearing if the respondent contests the application.^[270]

Applicants can receive free legal advice from the Tasmania Legal Aid telephone advice service or a clinic advice session where an applicant can speak face-to-face with a lawyer. If the applicant is going to appear in the magistrates' court in relation to an application, a duty lawyer at Legal Aid may be able to provide information about court procedure.

An applicant can also be self-represented in court in relation to the application and Legal Aid has procedural advice sessions for self-represented litigants. More information in relation to this and contact details for Legal Aid are available here.

There are also organizations such as Women's Legal Service Tasmania, which is a confidential and free legal advice and referral service for family law legal matters, and Aboriginal Services, which provides services including legal representation of indigenous Australians in Tasmania.^[271]

Victims of domestic abuse have rights under both civil and criminal law. Civil law claims are not common and are aimed at claiming damages.^[279] Although a domestic violence offender is liable to face criminal charges, the right of a victim to bring a civil claim is not dependent on the outcome of those charges. The victim's lawyer would usually make the civil claims. The offender may also engage a lawyer to defend them or, if they cannot afford to pay legal fees, they may be eligible for Legal Aid, in which case a lawyer will be appointed to represent them. In situations where the offender has no means to pay a damages claim, a victim could consider making a claim under the relevant Victims Support Scheme. For example, in New South Wales, the Victims Support Scheme helps people who are victims of a violent crime that happened in New South Wales. This includes counseling, financial assistance for immediate needs, economic loss, funeral expenses, if there has been a homicide, and recognition payments (to acknowledge that a violent crime has been committed, the amount is based on the offense committed). Maximum compensation is AUD 100,000 (for claims arising out of incidents in New South Wales that occurred on or after 1 July 2015).^[280] There are similar government services available in the other states and territories.^[281]

Criminal law is primarily aimed at punishing the offender. The police initiate this process. If there is a hearing, this is usually in a local court. There are no specific offenses for "domestic violence" in the states and territories; however, the courts and legislation still consider domestic violence a crime. Accusations of domestic violence can lead to the offender being charged with a criminal offense such as common assault, stalking and intimidating, contravening a domestic violence order, assault occasioning bodily harm, murder, wounding with intent to cause grievous bodily harm, recklessly causing grievous bodily harm and recklessly wounding. In some jurisdictions, there is also a mandatory sentencing regime for certain domestic violence offenses. For example, if someone is subject to a domestic violence order and that order is breached by an act of violence, the courts must sentence the offender to a term of imprisonment.^[282]

There is no requirement for victims to seek legal representation or advice from a solicitor. Individuals may make applications and attend court themselves, in which case they are self-represented litigants and act for themselves in any proceedings. However, it is advisable for a victim to seek the advice of a qualified solicitor. As mentioned above, free legal services are available in each state and territory to victims wanting to make an application if they are not able to afford to pay legal costs, including Legal Aid. Victims can also find contact details of a lawyer by contacting the relevant state or territory law society.

---

Domestic abuse offenses in Australia may fall within either or both of the criminal law and civil law systems. Criminal courts apply a stricter standard of proof than that required in civil proceedings. A criminal case must be proved "beyond reasonable doubt" and the prosecution bears the legal burden of proving every essential element of an offense. Civil cases must be proved on the "balance of probabilities," which means whether it is more likely than not that something has occurred.^[283] If the probabilities are equal, the burden of proof is not satisfied. However, if there are other possible explanations for the occurrence of something, this is not conclusive proof that something did not occur on the balance of probabilities. 

A particular statute may specify the standard of proof. There are numerous laws providing protection for domestic abuse victims in Australia, and they differ in each state and territory. For example, in all jurisdictions, the standard of proof required to obtain a domestic violence or protection order, is the civil standard.^[284] Offenses relating to serious conduct such as persistent child sexual abuse, sexual servitude, choking, suffocation or strangulation in a domestic setting, or murder, require the criminal standard of proof.^[285]

The party that bears the legal burden of proof must use evidence to persuade the magistrate, judge or a jury to the applicable standard. In civil cases, the strength of the evidence necessary to establish a matter on the balance of probabilities may vary according to the nature and gravity of what must be proved.^[286]

Australian courts are required to comply with rules of evidence, which differ based on jurisdiction. The Commonwealth and the states and territories have developed evidence legislation that is uniform in many ways. The laws of evidence are essentially concerned with what evidence is relevant and admissible in court, who has the burden of proof and what facts may be proven. The laws are also concerned with the types of evidence (such as documentary, real and witness evidence). There are also procedural rules that must be followed in criminal courts.

Laws of evidence — relevance and admissibility

To be allowed to be heard in court, or "admissible," evidence must be relevant to the case at hand. This means it must be able to "rationally affect the probability of a fact in issue" in the case. Once evidence is considered relevant, it is admissible unless one of the exclusionary rules of evidence causes it to be inadmissible.^[287] The rules of evidence in criminal and civil cases relating to admissibility are largely applied in the same way.^[288]

Evidence may be inadmissible for a number of reasons. These include:

• "Hearsay" evidence that is evidence of a previous representation made by a person,^[289] this is most commonly understood as evidence given at trial by Person A that Person B said something prior to the trial. There are a number of exceptions to the hearsay rule, such as where something was a contemporaneous representation about someone's health, feelings or state or mind. This rule is designed to make sure that a witness has personal knowledge of the facts that they are giving testimony about, not what they believe based on rumor or conjecture.
• Certain "tendency" or "coincidence" evidence, which is evidence relating to the following:
  • the character, reputation or conduct of a person, or a tendency that they have, when used to prove that the person has acted in conformity with that tendency
  • two or more events, when used to prove that it is improbable that these events occurred coincidentally^[290]
• Evidence that is only relevant to a witness' credibility; however, several exceptions apply including when this evidence is used in cross-examination.^[291]
• Evidence of an opinion that is being used to prove the truth of the fact about which the person expressed an opinion.^[292] Essentially, when someone expresses an opinion about something, this does not necessarily make it true. The court wants to hear what a witness personally knows, not what they have heard others say.

Laws of evidence relating to specific types of domestic abuse cases

Other rules of evidence may apply in certain types of domestic abuse cases. For example, under the Commonwealth Act, the rules of evidence do not apply in child-related proceedings unless the court decides.^[293] The evidence of children is also treated differently. Hearsay evidence of a child that is relevant to any child's welfare will not be inadmissible simply because of the law against hearsay.^[294] This is because child protection is a highly sensitive issue. Courts are not prevented from taking into account statements that children have made prior to trial that may be essential to protect them. Commonwealth courts can also make orders directing certain state and territory agencies to provide documents or information relating to child abuse.^[295]

From a practical perspective, giving evidence in court can be especially challenging and intimidating for people subjected to domestic abuse. It can involve giving evidence of traumatic and personal events in public, and potentially in the presence of the person who has committed the violent act(s). This can undermine the quality of evidence. In addition, evidence of domestic abuse, by its nature, can be difficult to corroborate and prove. If there are no police or medical reports of the abuse, or it is otherwise undocumented, this can present a challenge in court. 

Oral and written testimony

Different courts in Australia impose different procedural requirements. For example, some may require evidence by written affidavit, while others only allow oral testimony. For protection orders, which are often dealt with by the lower courts in the various states and territories, the high volume of applications can mean limited opportunities to give oral evidence. 

New South Wales

A committal hearing is where the charges are put to the accused, and they have the opportunity to plead guilty or not guilty. A victim of domestic violence generally does not need to attend a committal hearing unless the magistrate thinks there are special reasons why they should attend and provide oral evidence.^[296] However, if they are directed to attend, they can provide a written statement, if both the accused and the prosecutor consent, and the magistrate is satisfied that there is substantial reason that evidence should be given by a written statement.^[297]

In a trial, victims of domestic violence can give their evidence via recorded statement but they must be available for cross-examination and reexamination orally in a courtroom, unless an alternative arrangement is reached.^[298] Alternative arrangements include allowing the complainant to give evidence by audiovisual link or restricting their contact with the accused through screens or planned seating arrangements.^[299]

Victoria

In Victoria, evidence is usually provided orally. However, in criminal cases, alternative arrangements, such as the following, may be possible:

• evidence is given via closed-circuit television
• screens may be used to remove the accused from the witness's line of sight
• a support person is present in court
• only specified people are allowed in the courtroom^[300]

There are also specific rules for offenses under the Victorian Act. A witness may give evidence in the form of an audio or audiovisual recording, rather than attending court to given evidence in real time.^[301]

In addition, if a complainant is a "protected witness" under the legislation, they cannot be cross-examined by the accused in person.^[302]

Queensland

There are special arrangements for someone who is considered to be a "protected witness" under Queensland's evidence legislation, which a victim of domestic abuse can be.^[303] A protected witness includes those under 16 years old, alleged victims of certain offenses, and alleged victims of certain offenses that the court considers may be likely to suffer disadvantage or severe emotional trauma, unless treated as a protected witness.^[304]

Additionally, there are separate provisions for protected witnesses under Queensland's domestic and family violence legislation, including those that allow the following: 

• protected witnesses to give evidence via an audiovisual link
• protected witnesses to give evidence via an audiovisual recording that can be replayed in court
• a screen to be placed between the protected witness and the accused
• support persons in the courtroom
• any other alternative means that the courts think are necessary^[305]

In addition, the accused cannot cross-examine someone who has made a complaint under this legislation.^[306]

South Australia

Domestic abuse victims in family violence proceedings are afforded some protections in South Australia. Recordings can be used in lieu of giving evidence in a courtroom.^[307] Ordinarily, the complainant cannot be further examined, cross-examined or re-examined based on the evidence protected in the recording.^[308]

A victim of domestic violence may be considered a "vulnerable witness." If they are, the court can make orders to allow the following:

• evidence to be given outside the court and transmitted via closed-circuit television
• evidence to be taken outside the court and made and replayed in court
• a screen or partition to be placed between the witness and the accused
• the accused not to be present while the witness gives evidence
• the witness to be accompanied by a support person
• additional breaks to be given
• while evidence is given, the judge and lawyer not to be wearing a wig or gown^[309]

The accused also cannot cross-examine a victim witness without legal representation.^[310]

Western Australia

In Western Australia, "special witnesses" can be given certain special arrangements. Special witnesses may include victims of domestic abuse because they have suffered severe emotional trauma, or have been intimidated or distressed to the extent that they cannot give evidence.^[311] Special arrangements for special witnesses include allowing them to have a support person or communicator present.^[312] Recorded evidence can be used in lieu of giving evidence in court.^[313] The court can also order that an unrepresented accused cannot cross-examine a witness in person. The court can order that the witness connect to the courtroom via video link or make arrangements so that the witness cannot see the accused.^[314]

Tasmania

A victim of family violence who is giving evidence can be considered a "special witness."^[315] If that is the case, a court can make orders to allow the following:

• the witness to have a support person present
• the special witness's evidence to be given by audiovisual link
• a prior statement made by the witness to be provided as evidence
• a special hearing to be held to take and record evidence that can later be presented to the court
• the special witness not to be present at the hearing
• all people to leave the courtroom while the special witness gives evidence^[316]

Like the other states and territories, the accused cannot cross-examine a victim unless the counsel undertakes the cross-examination.^[317]

Northern Territory

Recorded statements taken by police can be used in a hearing or trial as a complainant's evidence but it must be made as soon as practicable after the event, and with the complainant's consent.^[318] Additionally, a complainant in domestic abuse proceedings is considered to be a "vulnerable witness," meaning that the defendant cannot cross-examine them without the court's permission.^[319] The court can only grant this permission if it is satisfied that the vulnerable witness's ability to testify will not be adversely affected.^[320]

Australian Capital Territory

There are protections for complainants in sexual, violent and family violence proceedings.^[321] A court can allow a complainant to give evidence in a courtroom without the accused person or any other relevant person present.^[322] The accused cannot personally examine the complainant.^[323] A complainant can also have a support person in court, and the court can be closed to the public while evidence is given.^[324] Witnesses can also give evidence by audiovisual link, and a witness must not be able to see or hear the accused.^[325]

As in other states and territories, recorded statements can be used as evidence in domestic violence proceedings.^[326] However, the complainant may be called to give evidence under cross-examination at the hearing. The recorded statement may also be used in proceedings for an application for a protection order under the specific family violence legislation in the Australian Capital Territory.^[327]

Yes, for criminal offenses — please refer to Section 5.2.1 above. 

Australian state and territory legislation allows interim and ex parte domestic abuse orders to be made before there has been a full hearing. In most jurisdictions (all except the Australian Capital Territory, Queensland and the Northern Territory), these orders may be sought over the phone or via electronic communication.^[328]

The standard of proof differs based on the state or territory, and the type of interim, temporary or ex parte orders available. Some states and territories allow for a lower standard of proof for temporary orders.

New South Wales

In New South Wales, a court can make an interim order where it appears necessary or appropriate to do so in the circumstances.^[329] A court can make an order regardless of whether the defendant is present or has been given notice of the proceedings.^[230]

Victoria

In Victoria, a court can make an interim order if satisfied on the balance of probabilities that the order is necessary to ensure the safety of the applicant or to preserve any property of the applicant pending the hearing and determination of the complaint.^[231] A court can also make an interim order to protect a child if it is satisfied on the balance of probabilities that the child has been subjected to family violence and an interim order is necessary to protect the child pending a final decision about the application.^[232]

Queensland

In Queensland, a court can make a temporary protection order in the following circumstances:

1. the court adjourns a hearing of an application for an order
2. the applicant seeks a temporary protection order from the court before the alleged perpetrator is served with the application for a protection order (or variation of a protection order)
3. a police officer applies for a temporary protection order^[333]

Before making the temporary order, a court must be satisfied that a relevant relationship exists between the aggrieved person and the perpetrator and that the perpetrator has committed domestic violence against the aggrieved person.^[334]

South Australia

In South Australia, a police officer may issue an interim order against a defendant if it appears that there are grounds for issuing the order and the defendant is present before the police officer or is in custody.^[335]

Western Australia

In Western Australia, an interim order is called a violence restraining order. It must be appropriate in the circumstances, and a court must be satisfied that either:

1. the respondent has committed personal violence against the applicant, and is likely to do so again
2. someone applying for the violence restraining order on behalf of another has reasonable grounds to think that the respondent will commit personal violence against the person seeking to be protected^[336]

Tasmania

In Tasmania, a court can make both a family violence order and an interim family violence order. To grant the former, a court must be satisfied, on the balance of probabilities, that a person has committed family violence, and may again commit family violence.^[337] There is a lower burden of proof for interim family violence orders — a court does not need to be satisfied of these things. Under separate legislation that is not specific to domestic abuse, restraining orders can be made by a court at any stage of proceedings if the court sees sufficient cause to do so.^[338]

Northern Territory

In the Northern Territory, a court can make an interim domestic violence order at any time during the proceedings for the application of a domestic violence order, and can do so regardless of whether the defendant appears at the hearing.^[339]

Australian Capital Territory

In the Australian Capital Territory, the order must be necessary to ensure the safety of the aggrieved person or of his or her children, employees or co-workers, or to prevent substantial damage to the property of the aggrieved person or of his or her children.^[340]

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Yes. There are two types of criminal defenses. The first is often called the primary or "denial" defense, where the defendant asserts that based on the evidence, the prosecution has failed to prove each of the elements of the offense beyond a reasonable doubt and, therefore, the defendant is not guilty. The second type of defense is called a secondary or "affirmative" defense, which is based on facts other than those that support the prosecution's claim, for example, things like self-defense, duress and insanity. With this type of defense, the accused is claiming that even if the prosecution has proven each of the elements of the offense beyond a reasonable doubt, they should still be acquitted because of a defense that is recognized in law and supported by evidence at trial.

Duress

As mentioned, one example of an affirmative defense is duress. Duress is a complete defense to a crime but it is a complicated area of law and can be a difficult defense to establish. Duress means that someone acted involuntarily because of the threat (either express or implied), or death or serious injury. It is recognized in all states and territories in Australia. In New South Wales and South Australia, duress is governed by common law, whereas duress is set out in federal criminal legislation and in the criminal codes of the Australian Capital Territory, Victoria, Queensland, Northern Territory and Western Australia.^[341]

Self defense

Self-defense is available as a defense to certain crimes in Australia, and depends on the particular crime and the relevant state and territory legislation.

For example, self-defense is a defense to assault in all states and territories. The accused can claim that they committed the alleged offense while defending themselves or another person against an attack. Under the Criminal Code Act 1995 (Commonwealth), and in the Australian Capital Territory, New South Wales, South Australia, Victoria, Western Australia and the Northern Territory, the conduct used in self-defense or the force used, must be "necessary" and "reasonable."^[342] In Tasmania, the force must be "justified" and "reasonable."^[343]

In Queensland, the legislation distinguishes between provoked and unprovoked assault. When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force as is "reasonably necessary" to defend against the assault, so long as the force is not intended and is not likely to cause death or grievous bodily harm (however, there is an exception if the assailant is causing a reasonable apprehension of death or grievous bodily harm).^[344] When a person provokes an assault, and is then assaulted with such violence as to cause a reasonable apprehension of death or grievous bodily harm, to induce their belief, on reasonable grounds, that it is necessary for them to use force in self-defense, to prevent death or grievous bodily harm, the person is not criminally responsible for that use of force. The force they used must also be reasonably necessary.^[345]

Insanity

Insanity is a defense to criminal responsibility in Australia. This means that a person accused of a crime can claim that mental incapacity affects their ability to reason.

Each of the states and territories have specific statutory defenses, which are worded slightly differently but share similarities.

The defenses in New South Wales, South Australia and Victoria are very similar, and require a "mental health impairment," "cognitive impairment" or "mental impairment."^[346] This impairment must make the person unable to know the nature and quality of their conduct or act, or that it was wrong or, in South Australia, it will be recognized if it makes them "unable to control" their conduct.

In all the other states and territories (except Tasmania), and under the Criminal Code Act 1995 (Commonwealth), a person is not criminally responsible if, at the time of their act or omission, they were in such a state of metal impairment, mental disease or natural mental infirmity as to deprive them of capacity to do any of the following:

1. understand what they were doing
2. control their actions
3. know that they ought not do the act or make the omission^[347]

In Tasmania, the offense is phrased slightly differently. A person is not criminally responsible for an act or omission where they were afflicted with mental disease to such an extent as to render them incapable of either:

1. understanding the physical character of the act or omission
2. knowing that such an act or omission is one which they ought not to do or make^[348]

For context, each crime is comprised of certain "elements" and each of these must be present in order for the prosecution to prove beyond a reasonable doubt that the accused committed the crime. 

The term actus reus refers to the physical element of a crime or, in simple terms, what the person did. In most cases, the actus reus of the offense will be a positive act, which means it was independently willed by a person, although it may also be a failure to act or an omission (which is an act that should have been done). 

Many crimes also require, as an essential element, that the defendant must have acted with a particular state of mind. This is referred to as mens rea, which effectively means "bad or guilty mind." In Australia, the courts recognize the following three categories of offenses in relation to the mens rea requirement:

1. offenses where mens rea must be established as an element of the offense
2. offenses of "strict liability," which means that there is no need to establish mens rea (for these offenses, the defendant can claim honest and reasonable mistake as a defense)
3. offenses of "absolute liability," which means that there is no requirement to establish mens rea, and the defendant cannot claim an honest and reasonable mistake as a defense

The mens rea element can mean one or more of the following mental states:

• intention — meaning that the defendant acted (or failed to act) with the actual subjective intention of bringing about the result
• knowledge — meaning that the defendant acted (or failed to act) while holding certain facts to be true
• belief — meaning that the defendant acted (or failed to act) with the belief that certain facts were true
• recklessness — meaning that the defendant acted (or failed to act) with knowledge that there was a possibility or probability (depending on the crime), that the result would occur

The mens rea element differs depending on the legislation and the specific crime. The mens rea elements of several crimes relating to domestic abuse are set out as follows:

New South Wales

Intention is required for murder.^[349]

Knowledge of lack of consent is required for sexual assault, including:

• aggravated sexual intercourse without consent
• sexually aggravated sexual intercourse without consent
• sexual touching without consent
• aggravated sexual touching without consent^[350]

Intention is not required for common assault that either does, or does not, occasion actual bodily harm.^[351]

Knowledge is required for breaches of apprehended violence orders in New South Wales.^[352]

Victoria

Intention is required for sexual assault and rape in Victoria.^[353] Intention or recklessness is also required for assault.^[354]

Intention or knowledge is not required for a breach of a family violence order in Victoria.^[355]

Queensland

Intention is not required for sexual assault in Queensland. Any person who unlawfully or indecently assaults another person, or procedures another person, without their consent, to commit an act of gross indecency, or witness an act of gross indecency, is guilty of a crime.^[356] Equally, there is no requirement for intention or knowledge of lack of consent for rape.^[357]

Assault also does not require intention, however, the assailant must intend to apply force or "create an apprehension of the use of force."^[358]

For protection order breaches, the person must have knowledge that the order exists.^[359]

South Australia

Intention is required for physical assault. A person commits an assault if they, without the consent of another person, "intentionally appl[y] force to the victim or intentionally [make] physical contact."^[360] However, intention is not required for indecent assault.^[361]

Knowledge or "reckless indifference" are required for rape. If the perpetrator knows, or is recklessly indifferent to, the fact that the other person does not consent, or has withdrawn their consent, this is an offense.^[362]

Protection order breaches in South Australia do not require a knowledge element. A person who contravenes any term of a protection order is guilty of an offense.^[363]

Western Australia

On its face, the legislation in Western Australia does not require intention for assault, nor for indecent assault.^[364] However, the courts in Western Australia have said that the person must at least have intended to "apply force" or "create an apprehension of the use of force."^[365] This means that the accused need not have intended to hurt or injure the other person but must have intended to harm the person. 

Intention is not required for protection order breaches, nor is knowledge. A person who is bound by an order and who breaches that order, commits an offense.^[366]

Tasmania

Intention is required for assault in Tasmania. It is a criminal offense to "unlawfully and indecently assault another person" and "an assault" is expressed as an "act of intentionally applying force."^[367]

Intention is not required for rape. Any person who has sexual intercourse with another person without that person's consent is guilty of a crime.^[368]

Knowledge is not required to breach a protection order in Tasmania. ^[369]

Northern Territory

In the Northern Territory, knowledge or recklessness are required for sexual intercourse and gross indecency without consent. A person is guilty of an offense if they have sexual intercourse with another person without consent, or if they know about or are reckless as to the lack of consent.^[370]

Intention is not required for common assault. Any person who unlawfully assaults another is guilty of an offense and, if no greater punishment is provided, is liable to imprisonment for one year.^[371]

For protection order breaches, the accused must have been given a copy of the order or the varied order; otherwise they cannot be taken to have committed an offense for breaching it.^[372]

Australian Capital Territory

Intention is required for sexual assault but is not required for common assault or assault occasioning actual bodily harm.^[373] There are various offenses relating to sexual assault, including where a person:

• inflicts actual or grievous bodily harm with the intent to engage in sexual intercourse
• unlawfully assaults or threatens to inflict grievous or actual bodily harm with the intent to engage in sexual intercourse^[374]

Common assault is punishable by imprisonment for two years, and assault occasioning actual bodily harm is punishable by imprisonment for five years.

A person must have knowledge of a family violence order in order to contravene it.^[375]

Yes. The law requires that the truth be told when:

• reporting a crime
• giving evidence in court
• swearing an affidavit
• making a statutory declaration

If the truth is not told in these situations, then a crime may be committed and the person who made the false statement could be charged with an offense including perjury (deliberately giving false evidence), making a false statement or making a false report to police. The relevant offenses in the states and territories are set out below.

New South Wales

It is an offense to knowingly make a false complaint or to give false or misleading information during the investigation of a complaint. This is punishable by up to 12 months' imprisonment.^[376]

Section 314 of the Crimes Act 1900 (New South Wales) provides that a person who makes an accusation intending a person to be the subject of an investigation of an offense, knowing that other person to be innocent of the offense, is liable to imprisonment for seven years.

Section 319 also provides for a general offense of perverting the course of justice, which states that a person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years.

Victoria

In Victoria, if a false accusation is made then a crime may be committed and the person who made the false statement could be charged with an offense including perjury (deliberately giving false evidence), making a false statement or making a false report to the police.

Making a false report to the police about an act or event that requires an investigation by a police officer is an offense with a penalty of one year imprisonment.^[377] Perjury is also a serious offense and carries a maximum penalty of 15 years' imprisonment. Actions that might constitute perjury include if a person gives and signs a witness statement to the police knowing that some or all of it is false, if they lie in an affidavit or statutory declaration or give false evidence in court.^[378]

Queensland

If a person is sworn in as a witness and they knowingly make a false statement that could affect the outcome of the proceeding they may commit an offense of perjury. This can be an offense regardless of whether the evidence is given in oral or written statements and regardless of the form of oath or affirmation that the witness took.^[379]

South Australia

In South Australia, if a person knowingly makes a false report to the police, or to a person who is not a police officer but knowing that it is likely that the representation will be communicated by that person to a police officer, it is an offense.^[380] The maximum penalty is AUD 10,000 or imprisonment for two years.^[381] It is also an offense for a person to create a false belief that an offense has been committed calling for police action. The maximum penalty is also AUD 10,000 or imprisonment for two years.^[382]

If a person makes a false statement under oath, they will be guilty of perjury. The maximum penalty for perjury is imprisonment for seven years.^[383]

Western Australia

In Western Australia, if a person creates a false belief about any of the following, the person will be guilty of a crime and will are liable to imprisonment for two years:

• an offense has been or is about to be committed
• human safety is or may be endangered
• human life has or may have been lost
• property is or may have been endangered
• property has or may have been destroyed

If convicted of a summary offense, the penalty is imprisonment for 12 months and a fine of AUD 12,000.^[384]

If the police took any action as a result of the person creating the false belief, a court can, when convicting a person for the offense, order the person to pay all or some of the reasonable expenses involved in the police or emergency services taking action as a result of the offense.

Giving false testimony is also an offense.^[385] Any person who commits perjury is liable to imprisonment for 14 years.^[386]

Tasmania

It is an offense to knowingly make a false report to a police officer that an act has been done or circumstances have occurred that would reasonably call for investigation by the police.^[387] The maximum penalty is a fine not exceeding 100 penalty units or imprisonment for up to one year.^[388]

Perjury is also an offense in Tasmania. If a person sworn as a witness makes a statement they know to be false or does not believe to be true, they will be guilty of an offense.

Northern Territory

It is an offense for a person to knowingly make a false statement to any member of the police force that any act has been done or that any circumstances have occurred, which would reasonably call for investigation by the police. The maximum penalty is AUD 11,000 or two years' imprisonment.^[389] If a person is found guilty of making a false report to the police, the court can also order that the person to pay a sum for reasonable expenses of or incidental to any investigation made by any member of the police force as a result of the false statement.

Perjury is also an offense for a person who knowingly gives false testimony, whether written or oral.^[390] The penalty is imprisonment for 14 years.^[391]

In all Australian states and territories except the Australian Capital Territory, consent in relation to sexual offenses is defined by statute. It is usually defined as a "free" and/or "voluntary" agreement.^[392] Consent must be actively communicated, which means that it must be "positive" or "express." Implied consent to sexual acts is not recognized in Australia. It is not enough to say that someone consented because they did not refuse or resist. Consent that was freely given can be withdrawn.^[393]

In all Australian states and territories, it is an offense to have sexual intercourse with another person without their consent. The terminology differs across jurisdictions. Most jurisdictions also have offenses of assault with intent to have sexual intercourse.^[394]

Consent is negated in certain circumstances, including where it is obtained:

• by force or violence, or fear of force, threat of intimidation
• by deception or fraud
• by the abuse of power of authority
• because someone is physically helpless, young or mentally incapacitated
• as a result of unlawful detention
• when someone is asleep, unconscious or intoxicated
• due to a mistake as to the sexual nature of an act or the identity of the person
• due to a mistaken belief that the act is for a medical, health or hygienic purpose

The legal age for consent is 16 in all states and territories, except South Australia and Tasmania where it is 17.^[395] In the Australian Capital Territory, New South Wales, the Northern Territory, South Australia, Victoria and Western Australia, it is also illegal for a person in a supervisory role to have sexual interactions with a person under their special care who is 16 or 17 years old.^[396] This includes teachers, foster parents, religious or spiritual leaders, medical practitioners or employers.

In addition, a couple of key reforms have occurred in recent years. The fact that the accused is married to another person is no longer a bar to a conviction for nonconsensual sexual intercourse. The previous assumption that a boy under 14 years old is incapable of sexual intercourse has also been removed.

Yes, self-defense and insanity are both forms of "affirmative" defenses. Please refer to the response to Question 5.3.1 above.

---

A witness will be asked to take an oath or affirmation to tell the truth. An oath has religious significance and an affirmation does not. The evidence will be considered in the same way regardless of the choice the witness makes. It is an offense to give false evidence in court after taking this oath or affirmation.

A witness can give written evidence in the form of an affidavit, which is also sworn or affirmed. It is an offense to make a false statement in an affidavit.

In most jurisdictions,^[397] in criminal proceedings, a spouse, de facto partner, parent or child of a defendant may object to giving evidence as a witness for the prosecution.^[398] The court must then make a finding on the following:

1. whether there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence
2. whether the nature and extent of that harm outweighs the desirability of having the evidence given

The court must take into account the following (which are non-exhaustive):^[399]

1. the nature and gravity of the offense for which the defendant is being prosecuted
2. the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it
3. whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor
4. the nature of the relationship between the defendant and the person
5. whether, in giving the evidence, the person would have to disclose things they received in confidence from the defendant

If the court determines the harm outweighs the desirability of the evidence being given, the person must not be required to give the evidence.

Whether the objection will succeed and the matter will continue without the evidence will depend on the facts of the case.

As above, in most jurisdictions, a witness can object to testify based on the following:

1. harm would or might be caused (whether directly or indirectly) to the witness
2. harm would or might be caused to the relationship between the witness and the defendant

Harm is not defined, but it should be “construed widely and not constrained artificially”^[400]Harm includes psychological harm.^[401] As the legislation uses the word “might,” the threshold is low (but any potential harm will still need to be balanced against the desirability of the evidence).^[402]

As an initial action, it is recommended that the witness discuss their unwillingness to testify with the police. It may be that the police or prosecution will not try to call the witness.

Yes. The following table summarizes the approach in different jurisdictions.

Australian Capital Territory

Chapter 2, Part 2.2 of the Evidence (Miscellaneous Provisions) Act 1991 (Australian Capital Territory)

Children should give evidence by audiovisual link, unless they wish to be present in court.

Chapter 4 of the Evidence (Miscellaneous Provisions) Act 1991 (Australian Capital Territory)

Special protections (children and domestic violence proceedings):

• the accused may be screened from the witness in court
• no examination of the witness by the self-represented accused
• the witness may have a support person in court
• evidence to be given in closed court

New South Wales

Apprehended violence order/domestic violence order proceedings

Part 9 of the NSW Act

Closed court.

A child should not be required to give evidence in any manner about a matter unless the court is of the opinion that it is in the interests of justice for the child to do so.

Part 9 of the NSW Act Pt 9 and Chapter 6, Part 6 of the Criminal Procedure Act 1986 (New South Wales)

If an investigating official provides prerecorded evidence, the witness’s evidence may come solely via that recording. A person must not call the child to give evidence other than via the recording, unless the person has taken into account any wishes of the child, considered in light of their age and understanding.

Section 306ZK of the Criminal Procedure Act 1986 (New South Wales) 

The child has a right to a support person.

Criminal proceedings (personal assault; child protection)

Chapter 6, Part 6, Division 4 of the Criminal Procedure Act 1986 (New South Wales) 

The child has a right to give evidence by CCTV/audiovisual link.

Section 306ZK of the Criminal Procedure Act 1986 (New South Wales) 

The child has a right to a support person.

Northern Territory

Domestic violence order proceedings

Chapter 4, Part 4.1, Division 2 of the NT Act

Closed court

Chapter 4, Part 4.1, Division 3 of the NT Act

Evidence via written or recorded statement

Chapter 4, Part 4.1, Division 3 of the NT Act

Support person

Chapter 4, Part 4.1, Division 3 of the NT Act

No cross-examination

Criminal proceedings

Part 3 of the Evidence Act 1939 (Northern Territory)

Evidence via audiovisual link unless they choose otherwise

Part 3 of the Evidence Act 1939 (Northern Territory)

If in court, entitled to screen/partition

Part 3 of the Evidence Act 1939 (Northern Territory)

Support person

Part 3 of the Evidence Act 1939 (Northern Territory)

For sexual assault or serious violence offenses, may admit a recorded statement

Part 3 of the Evidence Act 1939 (Northern Territory)

For sexual assault or serious violence offenses, closed court.

Queensland

Domestic violence proceedings

Section 148 of the Queensland Act

A child who is not an aggrieved person can only be called with the leave of the court (and only if they are at least 12 years old and the representative agrees).

Section 150 of the Queensland Act

Where the witness is a child, the court must consider making (and must make at least one of) the following orders:

• audiovisual link evidence
• prerecorded evidence
• use of in-court screen
• defendant in a separate room
• support person

Section 151 of the Queensland Act

No in-person cross-examination by the unrepresented party

Criminal proceedings (child under 16 years old at the arrest/complaint)

Division 4A of the Evidence Act 1977 (Queensland) 

Committal: evidence to be prerecorded

Division 4A of the Evidence Act 1977 (Queensland)

Committal: no cross-examination unless the magistrate requires it (they must be satisfied of certain factors, including that the issue could not be left to trial)

Division 4A of the Evidence Act 1977 (Queensland)

Trial: prerecorded or, if not possible, an audiovisual link or screen

Division 4A of the Evidence Act 1977 (Queensland)

Closed court

Division 4A of the Evidence Act 1977 (Queensland)

Support person

South Australia

Section 12 of the Evidence Act 1929 (South Australia)

Support person for a young child (under 14 years old)

Section 13A of the Evidence Act 1929 (South Australia)

Where the witness is a child (under 16 years old) and an application is made, the court must make special arrangements, which may include:

• audiovisual link evidence
• prerecorded evidence
• use of in-court screen
• defendant in a separate room
• support person
• judge and lawyers not in wigs/gowns

Section 13B of the Evidence Act 1929 (South Australia)

No cross-examination of the victim by the unrepresented defendant

Section 13BA of the Evidence Act 1929 (South Australia)

The court may make an order that the evidence given be prerecorded, with no further cross-examination without leave.

Tasmania

Part 2 of the Evidence (Children and Special Witnesses) Act 2001 (Tasmania) 

Support person

Part 2 of the Evidence (Children and Special Witnesses) Act 2001 (Tasmania)

Can make an application for a special hearing to record evidence in full and not be present at trial

Part 2 of the Evidence (Children and Special Witnesses) Act 2001 (Tasmania)

Evidence is to be given by audiovisual link unless, upon an application by the prosecution, the court is satisfied that the child is willing and able to give evidence in court.

Section 8A of the Evidence (Children and Special Witnesses) Act 2001 (Tasmania) 

No cross-examination by the unrepresented defendant

Victoria

Family violence intervention order proceedings

Section 67 of the Victorian Act

The child, other than the applicant for a family violence intervention order, must not give evidence without the leave of the court.

Section 69 of the Victorian Act

Unless the court considers otherwise (having regard to such factors as the wishes and maturity of the child), it must make orders like the following:

• audiovisual evidence
• screens
• support person
• legal practitioners being seated

Section 70 of the Victorian Act

No cross-examination by the unrepresented defendant

Criminal proceedings (family violence or assault)

Chapter 8, Part 8.2, Division 5 of the Criminal Procedure Act 2009 (Victoria)

Can give prerecorded evidence in chief

Section 356 of the Criminal Procedure Act 2009 (Victoria)

No cross-examination by the unrepresented defendant

Section 360 of the Criminal Procedure Act 2009 (Victoria)

The court may make orders, such as the following:

• audiovisual evidence
• screens
• support person
• closed court
• legal practitioners being seated or not robed

Western Australia

Section 106HB of the Evidence Act 1906 (Western Australia)

A prerecorded interview may be admitted as evidence in chief.

Section 106I of the Evidence Act 1906 (Western Australia)

According to Schedule 7 of the proceedings (including assaults against a child), the prosecution may make an application that the whole of the child’s evidence be prerecorded and that the child not be present at the proceedings.

Section 106K of the Evidence Act 1906 (Western Australia)

In a special hearing, closed court and with the accused in another room (or, if not possible, behind a screen)

Section 106E of the Evidence Act 1906 (Western Australia)

The child is entitled to a support person.

Yes. However, as outlined above, all jurisdictions have special procedures that attempt to maximize the support available for child witnesses. Many jurisdictions also require the leave of the court to call a child witness, which is only granted after considering factors such as the desirability of protecting children from unnecessary exposure to the court system.

Across jurisdictions, there is no minimum age for domestic violence and assault offenses. There is also no requirement for a sustained pattern of abuse. As detailed below, there are specific offenses against children that may be relevant in a domestic setting. These offenses are based both in criminal law and child protection legislation.

I) Commonwealth — child marriage offenses

The legal age of marriage in Australia is 18 years old.^[404] A marriage is invalid where it involves a person below 18 years old and it is only legal to marry a person below 18 years old in highly exceptional circumstances.^[405]

There are three main groups of offenses: forced marriage offenses (which include children under 16 years old),^[406] marrying a minor offenses^[407] and solemnizing offenses.^[408]

II) New South Wales

Failure of a person with parental responsibility to care for a child:^[409] The offense involves a parent who, without reasonable excuse, intentionally or recklessly fails to provide the child (under 16 years old) with the necessities of life. The penalty is imprisonment for five years.

Child protection offenses: A person (this is not restricted to parents) who takes action that results in or is likely to result in significant harm to a child is guilty of an offense.^[410] The maximum penalty is 200 penalty units, imprisonment for two years or both.^[411]

A person who, without reasonable excuse, neglects to provide adequate and proper food, nursing, clothing, medical aid or lodging for a child or young person in their care is guilty of an offense. The maximum penalty is 200 penalty units, imprisonment for two years or both.^[412]

Sexual offenses against children: These often distinguish between children of different ages. Offenses may include those in the table below.

Offense	Child under 10 years old	Child 10 to 14 years old	Child 14 to 16 years old
Sexual intercourse	Life[413]	16 years[414]	10 years[415]
Sexual intercourse — aggravated[416]		20 years[417]	12 years[418]
Sexual intercourse — attempted or assaulting with intent	25 years[419]	16 years[420]	10 years[421]
Sexual touching	16 years[422]	10 years[423]	10 years[424]
Sexual act	Seven years[425]	Two years[426]	Two years[427]
Sexual act — aggravated		Five years[428]	Five years[429]
Persistent sexual abuse of a child	Life[430]	Life[431]	Life[432]
Procuring or grooming a child under 16 years old for unlawful sexual activity	15 years[433]	15 years[434]	12 years[435]
Incest	Eight years[436]	Eight years[437]	Eight years[438]
Promoting or engaging in acts of child prostitution	14 years[439]	14 years[440]	10 years[441]
Child not to be used for the production of child abuse material	14 years[442]	14 years[443]	10 years[444]

Negligently causing serious injury: This would apply to a parent who has a legal duty to care for a child.^[445] The maximum penalty is 10 years of imprisonment.

Child protection offenses: A person who has a duty of care for a child (such as a parent) and who takes action that results in or is likely to result in significant harm, or who intentionally fails to take action that results in or is likely to result in harm to the child’s development or health of the child is guilty of an offense.^[446] The maximum penalty is a fine of 50 penalty units or imprisonment for 12 months.^[447]

Sexual offenses against children

Offense	Child under 12 years old	Child under 16 years old	Child under 18 years old
Sexual penetration	25 years[448]	15 years[449]
Sexual assault		10 years[450]
Sexual activity in the presence of a child		10 years[451]
Causing a child to be present during sexual activity		10 years[452]
Persistent sexual abuse		25 years[453]
Encouraging a child to engage/be involved in sexual activity		10 years[454]
Grooming for sexual conduct		10 years[455]
Abduction or detention for a sexual purpose		10 years[456]
Causing or allowing a sexual performance			10 years[457]
Inviting or offering a sexual performance			10 years[458]
Facilitating a sexual offense against a child		20 years[459]
Sexual penetration of a child, stepchild or lineal descendent[460]			25 years[461]
Involving a child in the production of child abuse material			10 years[462]
Producing child abuse material			10 years[463]
Distributing child abuse material			10 years[464]
Possessing child abuse material			10 years[465]

IV) Queensland

Negligently causing harm: This would apply to a parent who has a legal duty to care for a child.^[466] The maximum penalty is 10 years of imprisonment.

Sexual offenses against children

Criminal neglect of a child: The maximum penalty is imprisonment for 15 years.^[493] There is also the offense of failing to provide the necessary food, clothing or accommodation to a child.^[494]

Sexual offenses against children

Offense	Child under 14 years old	Child under 17 years old	Child under 18 years old
Sexual intercourse	Life[495]	10 years[496]
Maintaining a sexual relationship		Life[497]
Indecent assault			10 years[498]
Gross indecency with or in the presence of a person under 16 years old		Three years[499]
Incest			10 years[500]
Production or dissemination of child exploitation material		12 years[501]
Possessing child exploitation material		Five years[502]
Procuring a child to commit an in decent act		12 years[503]
Use of children in commercial sexual services	Life[504]		Nine years[505]
Requesting that children provide commercial sexual services	Nine years[506]		Three years[507]

VI) Western Australia

Duty to provide necessities of life: A person with charge of another who is unable to provide for themselves (e.g., because of age) and a head of a family with a child under 16 years old must provide the necessities of life for that child. The adult will be liable for any consequences caused by an omission of that duty.^[508]

Child protection offenses: A person who has the care or control of a child and who engages in conduct (act or omission) knowing that the conduct may result in the child suffering harm (physical, sexual, emotional abuse or neglect) or who engages in conduct that is reckless is guilty of an offense. The maximum penalty is 10 years of imprisonment.^[509]

Sexual offenses against children

Offense	Child under 13 years old	Child under 16 years old	Child 16 to 18 years old
Sexual penetration	20 years[510]	20 years[511]	10 years[512]
Procuring, encouraging or inciting a child to engage in sexual behavior	20 years[513]	20 years[514]	10 years[515]
Indecent dealing	10 years[516]	10 years[517]	Five years[518]
Procuring, encouraging or inciting a child to do an indecent act	10 years[519]	10 years[520]	Five years[521]
Indecently records a child	10 years[522]	10 years[523]	Five years[524]
Persistent sexual conduct		20 years[525]
Occupier or owner allowing a young person to be on their premises for unlawful carnal knowledge		Two years[526]
Showing offensive material to a child under 16 years old		Five years[527]
Involving a child in child exploitation		10 years[528]
Producing child exploitation material		10 years[529]
Distributing child exploitation material		10 years[530]

Failure to supply necessities and ill-treating a child:^[531] The first offense involves a person with a duty to do so failing to provide the necessities of life (such as a parent to a child). The second involves a person with custody, care or control of a child under 14 years old, neglecting or mistreating them such that they will suffer injury. The maximum penalty is 21 years of imprisonment.^[532]

Child protection offenses: A person who has a duty of care for a child (such as a parent) and who takes action/fails to take action that is reasonably expected to result in significant harm to the child is guilty of an offense.^[533] The maximum penalty is a fine of 50 penalty units or imprisonment for two years.^[534]

Sexual offenses against children

Offense	Child under 17 years old	Child under 18 years old
Penetrative sexual abuse of a child or young person	21 years[535]
Person permitting penetrative sexual abuse of a child or young person on their premises	21 years[536]
Persistent sexual abuse of a child or young person	21 years[537]
Indecent act with a child or young person	21 years[538]
Procuring a child or young person for sexual abuse	21 years[539]
Grooming with intent	21 years[540]
Involving a person under 18 years old in the production of child exploitation material		21 years[541]
Producing child exploitation material		21 years[542]
Distributing child exploitation material		21 years[543]
Incest		21 years[544]

VIII) Australian  Capital Territory

Criminal neglect: A person with caring or parental responsibility of a child must not neglect them. The punishment is 200 penalty units, imprisonment for two years or both.^[545] A person must not leave a child unattended in such circumstances and for such a time that the child could suffer injury or sickness, or otherwise be in danger. The punishment is 100 penalty units, imprisonment for one year or both.^[546]

Sexual offenses against children

Offense	Child under 10 years old	Child under 16 years old	Child 16 to 18 years old
Sexual intercourse with a young person	17 years[547]	14 years[548]	10 years[549]
Sexual relationship with a young person		25 years[550]	25 years[551]
Acts of indecency with young people	12 years[552]	10 years[553]	Seven years[554]
Incest	20 years[555]	15 years[556]	10 years[557]
Grooming	Nine years[558]	Seven years[559]	Seven years[560]
Using a child for the production of child exploitation material	Child under 12 years old		Child 12 to 18 years old
	1,500 penalty units, imprisonment for 15 years or both[561]		1,000 penalty units, imprisonment for 10 years or both[562]
Trading in child exploitation material	Child under 18 years old
	1,200 penalty units, imprisonment for 12 years or both[563]

IX) Northern Territory

Failing to supply necessities: Any person with a duty to provide the necessities of life (such as a parent for a child) who fails to do so is guilty of an offense. The maximum sentence is imprisonment for seven years.^[564]

Sexual offenses against children

Offense	Child under 10 years old	Child under 16 years old	Child under 18 years old
Possession, distribution, production or sale of child abuse material			10 years[565]
Use of a child for the production of child abuse material			14 years[566]
Sexual intercourse or gross indecency	25 years[567]	20 years[568]	Eight years[569]
Sexual relationship with a child		Seven years[570]
Indecent dealing	14 years[571]	10 years[572]
Incest	25 years[573]	20 years[574]	14 years[575]

---

Like most law with respect to domestic violence, each state or territory individually enacts and enforces sentencing laws. Therefore, the penalties for domestic violence offenses vary between jurisdictions. However, the general principals of aggravating and mitigating factors are consistent across jurisdictions. The starting point for determining a sentence will be the seriousness of the offense that the offender is convicted of and whether this is an assault, threats or another offense. The sentence imposed must be proportional to the severity of the offense committed.^[576] The table below (under “B. Maximum penalties”) outlines the maximum sentences provided in the criminal statutes of different states. These maximum sentences are treated by the courts as an indication of the policy of the legislature toward the offense and the seriousness of the offense. In addition, each state’s sentencing act^[577] provides the power of the relevant courts to sentence offenders, the kinds of orders that can be made and the factors that the courts are to take into account when determining a sentence. The sentencing acts in each state, territory and the commonwealth are as follows:

1. Crimes (Sentencing) Act 2005 (Australian Capital Territory)
2. Sentencing Act 1995 (Northern Territory)
3. Crimes (Sentencing Procedure) Act 1999 (New South Wales)
4. Penalties and Sentences Act 1992 (Queensland)
5. Sentencing Act 2017 (South Australia)
6. Sentencing Act 1997 (Tasmania)
7. Sentencing Act 1991 (Victoria)
8. Sentencing Act 1995 (Western Australia)
9. Crimes Act 1914 (commonwealth)

The purpose of criminal law in Australia is the protection of the public and, along with the related aims of retribution, deterrence and rehabilitation, protection will be the primary goal of any penalty imposed.^[578] Based on common law^[579] and in some states’ sentencing statutes,^[580] a sentence of imprisonment is only to be used as a punishment of last resort, meaning it should only be used where there is no other sentencing option available to the court. Other sentencing options are discussed below.

In relation to offenses committed in a domestic setting, the need for general deterrence may warrant a harsher sentence than a similar offense that occurs outside of a domestic setting. In a recent case, Justice Hiley of the Supreme Court of the Northern Territory said the following:^[581]

Domestic violence has been and continues to be a serious concern in today’s society. In Fairbrother; ex parte A-G (Qld) [[2005] QCA 105 at [23]] McMurdo P said, Jerrard JA and Cullinane J agreeing:

Domestic violence is an insidious, prevalent and serious problem in our society. Victims are often too ashamed to publicly complain, partly because of misguided feelings of guilt and responsibility for the perpetrator’s actions. Members of the community are often reluctant to become involved in the personal relationships of others where domestic violence is concerned. Perpetrators of domestic violence often fail to have insight into the seriousness of their offending, claiming an entitlement to behave in that way or at least to be forgiven by the victim and to evade punishment by society. Domestic violence has a deleterious on-going impact not only on the immediate victim but on the victim’s wider family and ultimately on the whole of society. It is not solely a domestic issue; it is a crime against the State warranting salutary punishment. The cost to the community in terms of lost income and productivity, medical and psychological treatment and on-going social problems is immense. Perpetrators of serious acts of domestic violence must know that society will not tolerate such behaviour. They can expect the courts to impose significant sentences of imprisonment involving actual custody to deter not only individual offenders but also others who might otherwise think they can commit such acts with near impunity.

Despite repeated references to the seriousness of domestic violence in the media, public campaigns and elsewhere, most if not all cases involving domestic violence call for denunciation and sentences aimed at deterring others from engaging in such conduct, whether it be physical or emotional or both. Many cases require sentences that also reflect the need for personal deterrence and protection of the community. [Emphasis added.]

The severe view taken of domestic violence is consistent across Australian courts and it is not a new invention. The High Court of Australia in Munda v. Western Australia (2013) 249 CLR 600 at [54]-[55] stated the following:

A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fueled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.

A. Aggravating and mitigating factors

The factors that judges will take into consideration are commonly categorized as either mitigating factors (in favor of a lesser penalty) or aggravating factors (in favor of a greater penalty).^[582] Generally, an aggravating or mitigating factor will not be relevant to sentencing if it is an element of the offense for which the offender is being sentenced. Relevant factors include the following:

• the offense committed and the maximum penalty prescribed by statute for that offense (see the table below)
• the nature and circumstances of the offense^[583]
• the degree of responsibility of the offender for the offense^[584]
• aggravating factors, including the following:
  • that the offense is a domestic violence offense^[585]
  • whether the offense was committed in the home of the victim or another person^[586]
  • the personal circumstances of the victim^[587] if known to the offender^[588]
  • if the victim was a public official (including health workers, community workers and law enforcement officers) and the offense arose because of the victim’s occupation or voluntary work^[589]
  • if the victim was a pregnant woman, whether the offender knew or ought to have known of the pregnancy, intended to cause loss of or harm to the pregnancy, or caused or intended to cause harm to a child as a result of the pregnancy^[590]
  • if the offense involved the offender causing the victim to take or be affected by an intoxicating substance^[591]
  • if the victim was a vulnerable person, whether the offender knew or ought to have known of the vulnerability and the loss or harm caused^[592]
  • if the victim had a disability or was under 13 years old^[593]
  • whether the offense was planned or deliberately committed^[594]
  • actual or threatened use of violence or with a weapon^[595]
  • whether the offense was part of a series of acts or involved multiple victims^[596]
  • whether the offense was committed in front of other people^[597]
  • whether the offense was motivated by hatred or prejudice against a group of people to which the offender believed the victim belonged^[598]
  • whether the offender was in a position of trust or authority when the offense was committed^[599]
  • the offense was committed for financial gain^[600]
  • whether the offense involved gratuitous cruelty^[601]
  • the impact of the crime on the victim (including injury, loss or damage)^[602]
  • the impact of the crime on the community^[603]
  • if the offense involved violence or caused physical harm to another person, the risk of physical harm to the community and the need to protect the community^[604]
  • the offense was committed without regard for public safety^[605]
  • the prevalence of the offense^[606]
  • the offense involved grave risk of death to another person^[607]
  • whether the offense was committed in front of a person under 18 years old^[608]
  • the effect of the offense on any child under 16 years old who may have been directly exposed to or a witness to the offense^[609]
  • if the offense was a sexual offense, whether the victim contracted a sexually transmitted disease and whether the offender knew that they had such a disease^[610]
  • any previous convictions (whether for a domestic violence offense or otherwise)^[611]
  • whether the offense was committed while the offender was on conditional liberty in relation to another offense^[612]
  • whether the offender used their standing in the community to aid in committing the offense^[613]
• mitigating factors, including the following:
• the injury, emotional harm, loss or damage caused by the offense was not substantial^[614]
• provocation, duress or entrapment^[615]
• the offender does not have any record of previous convictions^[616]
• any relevant cultural background, age, character, antecedents, physical or mental condition of the offender^[617]
• the offender is unlikely to reoffend or has good prospects of rehabilitation^[618]
• financial circumstances of the offender^[619]
• the impact of the sentence on the offender’s family or dependents^[620]
• whether the offender was affected by alcohol or a controlled drug at the time of the offense and the circumstances in which the offender became affected^[621]
• whether the offender is voluntarily seeking treatment for any mental or physical condition that may have contributed to committing the offense^[622]
• contrition or remorse for the offense (such as making reparations)^[623]
• any honest but mistaken belief of fact
• if the offender was not fully aware of their actions because of age or disability^[624]
• if the offender is on bail and is required to attend a rehabilitation treatment or other intervention program, the offender’s successful completion of the program/course^[625]
• if the offender is an Aboriginal or Torres Strait Islander person, submissions made by a community representative with regard to the offender’s relationship to the community, cultural considerations or considerations relating to established programs for offenders^[626]
• assistance by the offender with the administration of justice^[627] or law enforcement authorities^[628]
• conduct of the offender during proceedings^[629]
• any jury recommendation for mercy^[630]
• whether recording an offense would cause particular hardship^[631]
• time spent by the offender in jail before sentencing, sentences imposed for other offenses and sentences imposed on the offender that have not been served^[632]
• a guilty plea^[633]

B. Maximum penalties

Section 389 of the Criminal Code Act 1924 (Tasmania) sets a maximum sentence for all crimes at 21 years — except for murder and treason, which have a maximum sentence of life. The table below sets out the maximum sentences across the other Australian states and territories for crimes that may be committed in a domestic violence context. The table is not exhaustive; depending on the circumstances, other criminal offenses may be relevant. While there is some variety in the maximum sentences between states, the scope and severity of punishments is generally similar.

Offense	Maximum penalty	Relevant legislation
Assault	Five years of imprisonment	Section 31(1) of the Crimes Act 1958 (Victoria)
		Section 58 of the Crimes Act 1900 (New South Wales)
	Three years of imprisonment	Section 335 of the Criminal Code 1899 (Queensland)
	Two years of imprisonment	Section 26 of the Crimes Act 1900 (Australian Capital Territory)
	Common assault: 18 months to three years of imprisonment and a fine (AUD 18,000 to AUD 36,000) Assault causing bodily harm: five to seven years of imprisonment	Sections 313 and 317 of the Criminal Code 1913 (Western Australia)
	Two to five years of imprisonment	Section 20 of the Criminal Code 1935 (South Australia)
	One to five years of imprisonment	Section 188 of the Criminal Code Act 1983 (Northern Territory)
Murder	Life imprisonment (15 years of imprisonment for child homicide)	Section 5A of the Crimes Act 1958 (Victoria)
	Life imprisonment	Section 19A of the Crimes Act 1900 (New South Wales)
		Section 279 of the Criminal Code 1913 (Western Australia)
		Section 12 of the Crimes Act 1900 (Queensland)
		Section 11 of the Criminal Code 1935 (South Australia)
		Section 157 of the Criminal Code Act 1983 (Northern Territory)
Intentionally causing serious injury	20 years of imprisonment	Section 16 of the Crimes Act 1958 (Victoria)
	25 years of imprisonment	Section 33 of the Crimes Act 1900 (New South Wales)
	Life imprisonment	Section 317 of the Criminal Code 1899 (Queensland)
	20 to 25 years of imprisonment	Section 19 of the Crimes Act 1900 (Australian Capital Territory)
		Section 23 of the Criminal Code 1935 (South Australia)
	10 years of imprisonment	Section 297 of the Criminal Code 1913 (Western Australia)
	Life imprisonment	Section 177 of the Criminal Code Act 1983 (Northern Territory)
Recklessly causing serious injury	15 years of imprisonment	Section 17 of the Crimes Act 1958(Victoria)
	10 to 14 years of imprisonment	Section 25 of the Crimes Act 1900 (New South Wales)
	14 years of imprisonment	Section 320 of the Criminal Code 1899 (Queensland)
	13 to 15 years of imprisonment	Section 20 of the Crimes Act 1900 (Australian Capital Territory)
	14 years of imprisonment	Section 181 of the Criminal Code Act 1983 (Northern Territory)
Intentionally causing injury	10 years of imprisonment	Section 18 of the Crimes Act 1958(Victoria)
Recklessly causing injury	Five years of imprisonment	Section 359 of the Criminal Code 1899 (Queensland)
	Seven to 14 years of imprisonment (threats to kill)	Section 18 of the Crimes Act 1958(Victoria)
		Section 23 of the Crimes Act 1900 (Australian Capital Territory)
	Seven to 10 years of imprisonment	Section 35 of the Crimes Act 1900 (New South Wales)
	Seven years of imprisonment	Section 323 of the Criminal Code 1899 (Queensland)
	Five years of imprisonment	Section 301 of the Crimes Act 1913 (Western Australia)
	Five years of imprisonment	Section 186 of the criminal Code Act 1983 (Northern Territory)[634]
Stalking	10 years of imprisonment	Section 31A of the Crimes Act 1958 (Victoria)
	Five years of imprisonment	Section 13 of the NSW Act
	Five to seven years of imprisonment	Section 359E of the Criminal Code 1899 (Queensland)
	Two to five years of imprisonment	Section 35 of the Crimes Act 1900 (Australian Capital Territory)
	Three to eight years of imprisonment	Section 338E of the Criminal Code 1913 (Western Australia)
	Three to five years of imprisonment	Section 19AA of the Criminal Code 1935 (South Australia)
	Two to five years of imprisonment	Section 189 of the Criminal Code Act 1983 (Northern Territory)
Threats	10 years of imprisonment (threats to kill)	Section 20 of the Crimes Act 1958(Victoria)
		Section 30 of the Criminal Code 1900 (Australian Capital Territory)
	Five years of imprisonment (threats to injure)	Section 21 of the Crimes Act 1958(Victoria)
		Section 338B(1)(a) of the Criminal Code 1913 (Western Australia)
	Three to six years of imprisonment (threats to injure)	Section 338B(1)(b) of the Criminal Code 1913 (Western Australia)
	Five to seven years of imprisonment	Section 19 of the Criminal Code 1935 (South Australia)
	Two years of imprisonment (threats generally)	Section 200 of the Criminal Code Act 1983 (Northern Territory)
	Seven years of imprisonment (threats to kill)	Section 166 of the Criminal Code Act 1983 (Northern Territory)
	Five years of imprisonment	Section 23 of the Crimes Act 1958(Victoria)
Conduct endangering injury	Seven to 10 years of imprisonment (serious injury)	Section 174C of the Criminal Code Act 1983 (Northern Territory)
Choking, suffocation or strangulation in a domestic setting	Seven years of imprisonment	Section 20A of the Criminal Code 1935 (South Australia)
	Five years of imprisonment	Section 186AA of the Criminal Code Act 1983 (Northern Territory)
Administering a substance that interferes substantially with bodily functions	Five years of imprisonment	Section 19 of the Crimes Act 1958(Victoria)
	Five years of imprisonment	Section 316A of the Criminal Code 1899 (Queensland)
	Two years of imprisonment or a fine or both	Section 38A of the Crimes Act 1900 (New South Wales)
	Five years of imprisonment or a fine or both	Section 28AA of the Crimes Act 1900 (Australian Capital Territory)
	Three years of imprisonment	Section 305A of the Criminal Code 1913 (Western Australia)
	Two years of imprisonment	Section 176A of the Criminal Code Act 1983 (Northern Territory)
FGM	15 years of imprisonment	Section 32 of the Crimes Act 1959(Victoria)
		Section 74 of the Crimes Act 1900 (Australian Capital Territory)
	21 years of imprisonment	Section 45 of the Crimes Act 1900 (New South Wales)
	14 years of imprisonment	Section 323A of the Criminal Code Act 1899 (Queensland)
		Section 186B of the Criminal Code Act 1983 (Northern Territory)
	20 years of imprisonment	Section 306(2) of the Criminal Code 1913 (Western Australia)
	Seven years of imprisonment	Section 33A of the Criminal Code 1935 (South Australia)
Rape	25 years of imprisonment	Section 38 of the Crimes Act 1959(Victoria)
	14 to 20 years of imprisonment	Section 61I of the Crimes Act 1900 (New South Wales)
	Life imprisonment	Section 349 of the Criminal Code 1899 (Queensland)
		Section 48 of the Criminal Code 1935 (South Australia)
		Section 192 of the Criminal Code 1983 (Northern Territory)
	12 years of imprisonment	Section 54 of the Crimes Act 1900 (Australian Capital Territory)
	14 years of imprisonment	Section 325 of the Criminal Code 1913 (Western Australia)
Sexual assault/touching	10 years of imprisonment	Section 40 of the Crimes Act 1959(Victoria)
	Five years of imprisonment	Section 61KC of the Crimes Act 1900 (New South Wales)
	10 years of imprisonment	Section 352 of the Criminal Code 1899 (Queensland)
	Seven to nine years of imprisonment	Section 60 of the Crimes Act 1900 (Australian Capital Territory)
	Five years of imprisonment	Section 323 of the Criminal Code 1913 (Western Australia)
Using force or threat to cause another person to provide commercial sexual services	15 years of imprisonment	Section 53B of the Crimes Act 1959(Victoria)
		Section 202B of the Criminal Code Act 1983 (Northern Territory)
	15 to 19 years of imprisonment	Section 79 of the Crimes Act 1900 (Australian Capital Territory)
	14 to 20 years of imprisonment	Section 331B of the Criminal Code 1913 (Western Australia)
Forced Marriage	Seven to nine years of imprisonment	Section 270.7B of the Criminal Code Act 1995 (commonwealth)
Persistent family violence	14 years of imprisonment	Section 300 of the Criminal Code 1913 (Western Australia)

Please refer to Section 5.5.1.

If a person contravenes an existing order of protection by committing an act of violence against a person, the offender may be sentenced to imprisonment. The table below outlines the maximum penalties in each state and territory applicable for a breach of a protection order. The purpose of a heavy sentence is to show that there is a heavy price to pay for committing acts of domestic violence, especially where a court has issued an order otherwise.

Maximum penalty

a) Two years of imprisonment, 50 penalty units (AUD 5,500) or both - Section 14 of the NSW Act

b) Two years of imprisonment, 240 penalty units (AUD 27,220.80) or both - Sections 27 and 123 of the Victorian Act

c) One year of imprisonment or 40 penalty units (AUD 40,000) for the first offense, and two years of imprisonment for the third and subsequent offenses within a period of three years - Section 80 of the Domestic and Family Violence Protection Act 1989 (Queensland)

d) Two years of imprisonment, a fine of AUD 6,000 or both - Section 61 of the WA Act

e) Two years of imprisonment or (if a breach of an intervention order under Section 13) a maximum penalty of AUD 1,250 - Section 31 of the SA Act

f) Tiered penalties: one year of imprisonment or a fine of 20 penalty units (AUD 2,400) for the first offense, and five years of imprisonment for the fourth or subsequent offense - Section 35 of the Tasmanian Act

g) Five years of imprisonment, 500 penalty units (AUD 50,000) or both - Section 90 of the Domestic Violence and Protection Orders Act 2008 (Australian Capital Territory)

h) Five years of imprisonment, 400 penalty units (AUD 44,000) or both - Sections 121 and 122 of the NT Act

As outlined in the table above, the maximum penalties for some offenses include a fine in addition to or instead of incarceration. Penalties that may be imposed for particular offenses will vary from state to state, but can include the following:

• community correction orders, which may include supervision, community service or treatment conditions
• suspended sentences, where the offender only serves a term of imprisonment if the conditions of the suspended sentence are breached with the suspension period
• home detention, where the offender is restricted to their home for a period ordered by the court

While most offenses listed above have a maximum punishment comprising a term of incarceration, whether a custodial sentence is imposed will depend on the facts of the case and the discretion of the judge. As outlined above, the judge also has the option to impose a community correction order, fine or to mandate participation in a perpetrator intervention program. Section A below provides further detail on alternate sentences and how they operate in each state and territory. 

A. Sentences other than imprisonment

(i) Fines

Fines are available as a sentencing option in all states and territories, and they are often used for less serious offenses.

(ii) Community-based orders and supervision orders

In the Australian Capital Territory, Section 11 of the Crimes (Sentencing) Act 2005 (Australian Capital Territory) allows for the imposition of intensive correction orders for offenders sentenced to imprisonment for less than two years. For offenders sentenced to imprisonment for two to four years, the offender may serve the sentence through an intensive correction order if the court considers it appropriate, having regard to the level of harm caused by the offense to the victim and the community, whether the offender poses a risk to anyone and the offender’s culpability for the offense. An intensive correction order can include conditions such as a community service condition, rehabilitation program condition or restrictions on association or movement.

In the Northern Territory, Section 34 of the Sentencing Act 1995 (Northern Territory) allows for the imposition of a community work order or a community-based order requiring the offender to participate in a specified number of hours of community work. A court can only make such an order if it is satisfied that the offender is an appropriate person to participate in a community work program. Where an offender is convicted of a sexual or violent offense and the court decides to impose a sentence of imprisonment of less than 12 months, the court may order that such sentence be served by way of a community custody order under Sections 48A and 48B of the Sentencing Act 1995 (Northern Territory). The conditions for such an order are set out in Section 48E. They include that the offender must not commit another offense, must fulfill a community work program, must report to a probation and parole officer and must not leave the Northern Territory.

In New South Wales, Section 8 of the Crimes (Sentencing Procedure) Act 1999 (New South Wales) allows a court to make a community correction order instead of ordering a sentence of imprisonment, which includes conditions that the offender must not commit any offense, that the offender must appear before the court if called upon and must not leave the state, and may include a curfew, community work for a specified number of hours, abstention condition, non-association condition, place restriction or supervision condition. The Sentencing Act 199 (Tasmania) provides for a similar community correction order to be made under Part 5B. A community correction order may be made in Victoria where an offender has been convicted or found guilty of an offense punishable by more than 5 penalty units (the value of a penalty unit varies from time to time), on similar conditions to the New South Wales and Tasmanian orders, in accordance with Section 37 of the Sentencing Act 1991 (Victoria).

The court can also impose a conditional release order (either with or without recording a conviction) under Section 9 of the Crimes (Sentencing Procedure) Act 1999 (New South Wales). Such order includes conditions that the offender must not commit any offense, that the offender must appear before the court if called upon, and may include a community service work condition, a rehabilitation condition, abstention condition, non-association condition, place restriction or supervision condition.

In Queensland, the court may make a community service order under Section 101 or a probation order under Section 91 of the Penalties and Sentences Act 1992 (Queensland). The court may make both orders for an offender. The effect of a community service order is to require that the offender not commit another offense, report to corrective services, perform community service as specified in the order and not leave Queensland without permission. The effect of a probation order is that the offender be released under the supervision of corrective services (either with or without first serving a term of imprisonment of up to a year). The probationary period can be between six months and three years. The order will contain conditions that the offender not commit another offense, be supervised by an officer (including reporting and visits), must take part in counseling and attend other programs as ordered and must not leave Queensland without permission. The order may contain conditions that the offender submit to specified treatment and other conditions that the court considers necessary to prevent re-offense.

If a Queensland court sentences an offender to a term of imprisonment of one year or less, the offender may serve that sentence by way of an intensive correction order. The conditions of an intensive correction order are generally similar to that of a probation order, but they also include a condition to perform community service and attend programs as directed, and a condition that the offender be directed to reside at community residential facilities for periods of up to seven days.

A court in South Australia may, if it finds an offender guilty of an offense, either with or without recording a conviction, discharge the offender on the condition that the offender enter into a bond of good behavior and any other conditions that the court considers appropriate. If the offender fails to comply with the terms of the bond, then the offender may be liable to sentence at that stage. Conditions may include that the defendant be under the supervision of a community corrections office; that the offender reside in a specified place; that the offender perform a specified number of hours of community service, undertake an intervention program or medical or psychiatric treatment, abstain from a specified class of drugs, submit to tests, restore misappropriated property or pay compensation; or that the offender attend and complete a specified education program.

In Western Australia, a community-based order may be imposed in relation to an offense under Part 8 of the Sentencing Act 1995 (Western Australia). If the offender re-offends while the order is in force, they may be sentenced again for the original offense. While the order is in effect, the offender must report to a community corrections center, must not leave the state and will be subject to at least a supervision order, program requirement (such as a drug or alcohol program, medical, educational or personal development program) or community service requirement. An intensive correction order is a similar order available under Part 10 of the Sentencing Act 1995 (Western Australia), but it must contain a supervision requirement and may contain a program requirement, community service requirement or curfew requirement.

(iii) Suspended sentence

In the Australian Capital Territory and Tasmania, a court may suspend a sentence of imprisonment, meaning it will only be served by the offender if the offender breaches the terms of the suspension, in accordance with Section 12 of the Crimes (Sentencing) Act 2005 (Australian Capital Territory) and Section 24 of the Sentencing Act 1997 (Tasmania). In the Northern Territory and Queensland, a sentence up to five years may be suspended in whole or in part in accordance with Section 40 of the Sentencing Act 1995 (Northern Territory) and Section 144 of the Penalties and Sentences Act 1992 (Queensland). In Western Australia, a sentence of imprisonment may be suspended if it is for a period of less than 60 months under Section 76 of the Sentencing Act 1995 (Western Australia). Section 81 of the Sentencing Act 1995 (Western Australia) also allows a court to conditionally suspend a term of imprisonment. The conditions include reporting to a community corrections center, not leaving Western Australia, and a program requirement, a supervision requirement or a curfew requirement.

In South Australia, under Section 96 of the Sentencing Act 2017 (South Australia), a court may suspend a sentence of imprisonment that has been imposed on the conditions that the offender enter into a bond of good behavior and not possess a firearm, and any other conditions the court may consider appropriate. Sentences of offenses such as serious sexual offenses or sentences of more than two years of imprisonment for some offenses cannot be suspended.

New South Wales and Victoria do not allow a court to suspend a sentence, but a court that has found an offender guilty of an offense may defer (by adjourning proceedings) the sentencing of the offender for purposes including the consideration of rehabilitation prospects, participation in an intervention program or another purpose appropriate in the circumstances. Additionally, Section 36(2) of the Sentencing Act 1991 (Victoria) provides that a community correction order may be appropriate where a court previously would have imposed a suspended sentence.

(iv) Drug and alcohol treatment orders

In the Australian Capital Territory, Section 12A of the Crimes (Sentencing) Act 2005 (Australian Capital Territory) allows a court to suspend a sentence of one to four years, and make a drug and alcohol treatment order if the offender is dependent on alcohol or a controlled drug, the dependency substantially contributed to the offense and the offender will live in the Australian Capital Territory for the term of the sentence.

Under Section 27B of the Sentencing Act 1997 (Tasmania), a Tasmanian court may make a drug treatment order if it finds a person guilty of a custodial offense (and would have imprisoned the offender) other than a sexual offense or an offense inflicting actual bodily harm that is not minor if it is satisfied that the offender has a history of illicit drug use and this contributed to the offense. As part of the drug treatment order, the court will impose the sentence of imprisonment it otherwise would have, but the offender will only serve the sentence if it is activated (such as by breaching a condition of the order). The conditions of the order may include travel restrictions, attending a program and drug testing.

In Victoria, drug and/or alcohol treatment orders can be made as part of a community correction order, through the inclusion of a treatment and rehabilitation condition in accordance with Section 48D of the Sentencing Act 1991 (Victoria).

(v) Home detention order

In the Northern Territory, Section 44 of the Sentencing Act 1995 (Northern Territory) allows a home detention order to be imposed where the order is not likely to put any person living in the premises or the community generally at risk, and where the offender consents to the order.

In South Australia, Section 71 of the Sentencing Act 2017 (South Australia) allows the court to impose a sentence of imprisonment and order that the sentence be served on home detention, as long as the period of imprisonment is less than two years, the court is satisfied of the suitability of the proposed residence and, if the offense is a serious sexual offense, that the court is satisfied that special reasons exist for making a home detention order. In making the order, the court must also consider the impact that it would be likely to have on any victim of the offense, any spouse or domestic partner of the offense and any person residing at the same residence.

Section 42C of the Sentencing Act 1997 (Tasmania) allows the court to impose a home detention order where the offender would have otherwise been sentenced to a term of imprisonment, if the court considers it appropriate to make the order in the circumstances, if the offense is a domestic violence offense, if the offender will not reside at the same premises as the victim and if there is not a significant risk that the offender may commit a violent or sexual offense during the period of the order.

---

There is no uniform national requirement for victims to be notified of the release of an offender. However, some state and territory governments maintain registers of victims who wish to be advised of changes in the offender’s sentence. In most states, victims will need to contact the relevant government department to be placed on the list, and registration is often limited to those people directly affected by the offender’s actions.

The registration of a victim on these registers is confidential, and the offender will not be notified when any victim is registered to receive information about them. Similarly, information that a victim receives through a register must not be shared more broadly, given to the media or otherwise distributed. 

New South Wales

In New South Wales, in accordance with Article 15 of the Charter of Victims’ Rights, victims have the right to information about the impending release, escape or eligibility for absence from custody, as follows:

A victim will, on request, be kept informed of the offender’s impending release or escape from custody or of any change in security classification that result in the offender being eligible for unescorted absence from custody.

There are three victims’ registers in New South Wales, as follows:

1.

The Victims Support Unit maintains a register for victims of adult offenders supervised by the Corrective Services New South Wales. The unit informs registered victims of sentenced offenders in New South Wales of any change in classification, escape, death or eligibility for absence from custody of the offender, and assists registered victims to make submissions on eligibility for parole and absence from custody where relevant. To register on the Victims Register for adult offenders, the victim or a family member of a deceased, incapacitated or underage offender may contact the following:

Victims Register

Locked Bag 5111

Parramatta, New South Wales 2124

Telephone: 02 8688 6833

Email: victims.support@justice.nsw.gov.au

Website: https://correctiveservices.dcj.nsw.gov.au/csnsw-home/support/victim-support.html

2.

The Juvenile Justice Victims Register officer is responsible for maintaining the Victims Register for victims of juvenile offenders supervised by Juvenile Justice New South Wales. For more information or to register on the Victims Register, victims of juvenile offenders may contact the following:

Victims Register

Strategy and Engagement Directorate

Juvenile Justice

GPO Box 31 Sydney, New South Wales 2001

Telephone: 02 8346 1333

Email: jjvictimsregister@justice.nsw.gov.au

3.

Victims Services maintains a register of victims of forensic patients (those found not guilty due to mental illness or unfit at a special hearing and receiving a limiting term). Victims who are on the register can be notified of certain changes concerning a forensic patient. For more information or to register, contact the following:

Victims Register

Strategy and Engagement Directorate

Juvenile Justice

GPO Box 31 Sydney, New South Wales 2001

Telephone: 02 8346 1333

Email: jjvictimsregister@justice.nsw.gov.au

Victoria

The Victorian government maintains the Victims Register for victims of violent crimes. This includes victims of family violence. Victims of crimes, family members of victims and those with a significant connection to the crime (such as witnesses) can be placed on the Victims Register. However, the register does not operate where the offender is a young person detained in a youth justice center, the offender has not been sentenced, the sentence has been carried out or the sentence is a community corrections order, the offender is serving a sentence in another state/territory or the offender was not found guilty because of mental impairment.

Once on the Victims Register, victims can be informed of when the offender is due to be released from prison, including as a result of the offender finishing their sentence, being granted parole or being released into the community on a supervision order. The register can also give the following information:

• the length of the offender’s sentence
• the offender’s earliest possible release date
• if the length of the offender’s sentence changes
• if the prisoner is granted or denied parole
• if the offender escapes from prison
• if the offender dies during their sentence
• if the offender is transferred to another state of Australia or the custody of immigration officials
• if the offender absconds from parole or while on a supervision or detention order
• the release of the offender into the community, including when the offender participates in community team sports
• details about the offender’s parole and conditions that may be applied to help protect the victim’s safety
• details about supervision or detention orders if the offender is placed on one as part of the post-sentence scheme following the end of their sentence

The Victims Register will not provide information about the prison where the sentence is being served, where the offender will live following release, details of assessments of the offender, details of any appeal hearings or details of any hearings for other offenses.

To be placed on the Victims Register, victims will need to complete an online form available at https://www.victimsofcrime.vic.gov.au/victims-register-online-form. The form asks for detailed information, including proof of identity, details of the crime and the victim’s connection to the crime, and the name of the offender.

For more information, contact the following:

Victims Register

Telephone: Victims of Crime Helpline on 1800 819 817

Email: victimsregister@justice.vic.gov.au

Australian Capital Territory

The Australian Capital Territory maintains two victims’ registers to allow victims to receive information about a sentenced offender and the administration of their sentence.

The Australian Capital Territory Corrective Services administer the Victims Register for victims of adult offenders, as well as those who have suffered harm because of an offense, who were financially or psychologically dependent on someone who died as a result of the offense or who have a parental responsibility for a victim under 15 years old.

Victims on the register may receive the following information:

• the length of the offender’s sentence, eligibility for parole and earliest release date
• the correctional center where the offender is detained and any transfer
• any change in security classification that may result in the offender being eligible for unescorted leave
• any unescorted leave given
• the death, escape or any other exceptional event relating to the offender

Registered victims will also have the opportunity to provide a written submission to the Australian Capital Territory Sentence Administration Board about the offender’s possible release to parole.

Victims of offenders serving a sentence by periodic detention or a community-based order may receive the following information:

• the duration of the offender’s order
• general information about the times and places the offender may be required to report for periodic detention or community service work
• any non-association order or place restriction order relating to the victim
• the cancellation or variation of the order

To be added to the Victims Register, contact the following:

The Victim Liaison Officer

Australian Capital Territory Corrective Services

GPO Box 158

Canberra, Australian Capital Territory 2601

Telephone: (02) 6207 0836

Email: victims.register@act.gov.au

Website: https://correctiveservices.act.gov.au/victims-services/act-victims-register

The Office for Children, Youth and Family Support within the Department of Community Services administers a register for victims of offenses committed by young offenders. Only those directly affected by the offense, such as by suffering harm, losing someone they were financially or psychologically dependent upon or who have been nominated to act on behalf of a victim, may be placed on the register. Witnesses of a crime, bystanders, members of the victims’ family and unrelated individuals cannot be placed on the register. Registered victims may receive the following information:

• the name, conditions and length of the offender’s sentence, including whether there is a combination of sentences or orders, the dates of imprisonment and date of release
• the place of detention if applicable, including any transfer
• any changes made to supervision of the offender
• a general description of the nature of the supervision by the Community Youth Justice and any programs the offender is participating in
• the death, escape or any other exceptional event relating to the offender
• any information relating to the safety of the victim
• where the offense relates to personal violence, the registered victim may be provided with identifying information about the offender; if the offense is not related to personal violence, the information will be non-identifiable

To register, victims can contact the following:

Australian Capital Territory Youth Justice Victims Register Administrator

Child and Youth Protection Services

Community Services Directorate

GPO Box 158

Canberra, Australian Capital Territory 2601

Email: yjvictimsregister@act.gov.au

Fax: (02) 6207 6420

Website: https://www.communityservices.act.gov.au/ocyfs/youth_justice_victims_register

Victim Support ACT can assist victims with registration on the registers and any other questions. Victim Support ACT can be contacted in the following ways:

Victim Support ACT

GPO Box 158

Canberra, Australian Capital Territory 2601

Telephone: 1800 8222 72 or (02) 6205 2066

Website: https://www.victimsupport.act.gov.au/home

South Australia

Section 85D of the Correctional Services Act 1982 (South Australia) provides that an eligible person (which includes victims and others with a proper interest in the information) may apply to receive the following information relating to a prisoner:

• the name and address of the correctional institution in which the prisoner is imprisoned
• details of any transfer of the prisoner
• details of the sentence or sentences of imprisonment the prisoner is serving
• the date and conditions of a likely release (including on bail, leave of absence, home detention or parole)
• details of any escape

The Department for Correctional Services maintains the Victims’ Register in South Australia. Victims of crimes for which the offender has been incarcerated or is under supervision and family members of a victim of homicide are eligible to be placed on the Victims’ Register. Victims of domestic violence where the offender is serving a sentence for an unrelated crime may also be placed on the register.

To be placed on the register, victims can complete an online registration form available at https://www.corrections.sa.gov.au/victim-services/the-victims-register

For further information, contact the following:

Victim Services Unit

GPO Box 1747, Adelaide, South Australia 5001

Telephone: 1800 370 550

Email: dcsvictimservices@sa.gov.au

Western Australia

The Corrective Services Division maintains a Victim Notification Register. Victims of the offense for which the offender is incarcerated or supervised, who have a current family violence restraining order or have been the victim of previous domestic violence offenses may apply to be placed on the Victim Notification Register. Witnesses, bystanders, most family members and unrelated individuals are not eligible to be placed on the Victim Notification Register or to receive information about particular offenders.

The following information may be provided to victims:

• details of the offender’s sentence
• any escape and recapture
• impending release dates
• results of any appeals against the sentence

Victims will generally be notified of any changes in the offender’s sentence within five days of the change occurring.

Victims can complete the form at https://www.correctiveservices.wa.gov.au/_files/victim-services/vnr-brochure.pdf and send it to the following:

The Victim Notification Register

GPO Box 6702, East Perth, Western Australia 6892

Facsimile: 94252869

Telephone: 9425 2870

Queensland

Section 320 of the Corrective Services Act 2006 (Queensland) requires corrective services to keep a register of the persons eligible to receive information about a prisoner. Eligible persons include the victim of the offense, immediate family members of deceased victims, guardians of victims under 18 years old and victims of domestic violence by the offender.

Those registered on the Victims Register can receive information on the following:

• the offender’s eligibility for or the date of discharge or release
• the offender’s escape or death
• circumstances relating to the offender that may endanger the person’s life or physical safety
• the offender’s location, security classification, any transfer and the length of imprisonment
• when the offender applies for parole
• the outcome of parole applications

To apply to be placed on the register, victims can complete the application form available at https://www.publications.qld.gov.au/dataset/victims-register-application-form/resource/fd2dfec0-4669-45e3-b0ab-8dca7af4f41a and send it to the following:

Queensland Corrective Services Victims Register

GPO Box 1054

Brisbane, Queensland 4001

Email: victims.register@corrections.qld.gov.au

Northern Territory

The Northern Territory Department of the Attorney-General and Justice maintains a register of victims of violent or sexual crimes. Victims and their legal guardians (if the victim is a child or a disabled person) are eligible to be registered in relation to an offender, as are people nominated by a victim to receive information on behalf of the victim, a primary caregiver or family member of a victim, a person against whom the offender has a history of using domestic violence or a person with a substantial concern with the offense. Victims can apply to be registered from the date the sentence is ordered, until the sentence is discharged.

Registered offenders can receive the following information:

• details of any suspended sentence order, including the date of release under the suspended sentence order, the conditions of the suspended sentence order, and any variation, revocation, cancellation or discharge of a suspended sentence order
• parole information, including the earliest possible date of release, the date that the parole board is to consider release on parole, the actual date of release on parole and any conditions of parole that are considered relevant to the victim, and the revocation or cancellation of a parole order
• any transfer to another prison within the Northern Territory, interstate or overseas
• any escape from prison and any recapture
• if the offender dies while in custody
• the status of the offender’s security ratings and any change in status
• any courses or programs being undertaken for the purposes of rehabilitation
• any approved leave of absence from prison

Victims will receive a letter with all the relevant information in relation to the offender shortly after registration, and they will receive a notification if any of this information changes. Victims can also request information at any time.

To apply to be placed on the register or to get more information, victims can contact the following:

Coordinator

Northern Territory Victims Register

Crime Victims Services Unit

Free call: 1800 221 372

Email: victims.register@nt.gov.au

Witness Assistance Service

Tel: 08 8935 7500       Darwin

Tel: 08 8951 5800       Alice Springs

Tel: 08 8972 8900       Katherine

Free call: 1800 659 449

Email: wasdpp.doj@nt.gov.au

Tasmania

A victim’s right to be informed of an offender’s impending release from custody where the offender is imprisoned in relation to a sexual offense or personal violence is protected by Article 15 of the Charter of Rights for Victims of Crime.

The Department of Justice, through the Victims Assistance Unit, maintains a Victims’ Register. Victims of crimes or a member of their immediate family can register to receive information regarding the offender. Registration can only occur once an offender has been given a custodial sentence. Prior to sentencing, the Tasmania Police will keep victims informed of the matter’s progress in court.

Victims can receive the following information:

• the nature of the offense committed and the sentence imposed by the court
• the location of the offender at the time of registration and any subsequent transfers
• the offender’s security classification at the time of registration and any classification changes
• the offender’s release eligibility dates
• the result of any leave applications, e.g., work release, home visits, reintegration or parole
• if the offender escapes from custody
• if the offender dies while in custody

Following registration, the Victims Assistance Unit will compile all relevant information regarding the offender at that point in time and provide this to the registered person. This will usually occur within 10 days of registration. Registered people will then receive further updates if the information regarding the offender changes.

To apply to be placed on the register or to get more information, contact the following:

Victims Assistance Unit

Department of Justice

54 Victoria Street, Hobart, Tasmania 7000.

Postal Address: GPO Box 825, Hobart, Tasmania 7001

Phone: (03) 6233 5002 or 1300 663 773

Facsimile: (03) 6233 5031

Email: victims@justice.tas.gov.au