Stalking: Consultation Paper (html)

4. The personal safety intervention order system

Introduction

4.1 In Victoria there are two types of intervention orders: family violence intervention orders (FVIOs) and personal safety intervention orders (PSIOs). FVIOs cover situations where the parties are family members, including former intimate partners and some carers. PSIOs cover all other relationships.^[129]

4.2 FVIOs and PSIOs used to be covered by the same piece of legislation—the Crimes (Family Violence) Act 1987 (Vic). The intention of this legislation was to provide a system of civil restraining orders for family violence and non-family violence stalking. The dynamics of family violence and non-family violence stalking are in some ways similar—often an ongoing pattern of behaviour which controls or dominates the victim or causes them to feel fear.^[130]

4.3 However, the definition of stalking needs to be broad to capture all the ways that stalking can manifest—for example, contacting the victim survivor, interfering with their property or using abusive or offensive words towards them. The problem is that this broad definition of stalking captures other behaviour that is not ‘true’ stalking—for example, neighbourhood disputes over a fence or rubbish bins. This causes a dilemma for policy makers: if we narrow the definition of stalking too far it might prevent victim survivors of stalking from getting help; but leaving it broad means that a lot of matters that are not stalking are caught up in the ‘stalking’ system.

4.4 For this reason, the Victorian Law Reform Commission recommended in 2006 that family violence intervention orders be governed by a stand-alone piece of legislation which addresses the particular dynamics of family violence and does not include neighbourhood disputes.^[131] The Family Violence Protection Act 2008 (Vic) implemented that recommendation.

4.5 The Personal Safety Intervention Orders Act 2010 (Vic) (the PSIO Act) was subsequently introduced to provide for a system of non-family violence intervention orders. It faced the awkward challenge of providing safety for those victims of non-family violence stalking, whose situation is similar to those experiencing family violence, but also providing a response to those whose interpersonal disputes are caught up in the broad definition of stalking. It sought to address this challenge in two ways.

4.6 Firstly, it broadened the grounds for obtaining a non-family violence intervention order to include ‘prohibited behaviour’ which means assault, sexual assault, harassment, property damage or interference or making a serious threat.^[132] It was hoped that by explicitly capturing the non-stalking behaviour that had come to be encompassed by the definition of ‘stalking’, the word ‘stalking’ might shrink back to its natural meaning.^[133]

4.7 Secondly, the PSIO Act introduced a structured system to refer interpersonal disputes to mediation. The aim was to ‘ensure that people in low-level neighbourhood disputes are encouraged to use mediation to find long-lasting solutions to conflict, while people at risk from future harm are kept safe by personal safety intervention orders, enforced by police and courts.’^[134]

4.8 So in summary, the PSIO Act covers a broad spectrum of behaviour—from non-family violence stalking, the dynamics of which are close to family violence, to interpersonal disputes which are quite different to family violence.

4.9 Our terms of reference ask us to consider which protections from the family violence system should be applied to the PSIO system. However, if we apply the protections of the family violence system to interpersonal disputes, we will lose the specialist response to family violence and stalking.

4.10 These issues are discussed further in this chapter.

Online applications

4.11 A person who is not a police officer can apply for a family violence intervention order online through the Magistrates’ Court of Victoria website. The Family Violence Protection Act allows an applicant to make a ‘declaration of truth’ in place of an oath or affirmation. A declaration of truth does not need to be witnessed by, or executed before, any other person.^[135]

4.12 A person who is not a police officer cannot apply online for a PSIO. They must apply in person at the Magistrates’ Court, where a registrar will assist them.

4.13 If online applications were available for PSIOs, people who have been stalked could apply in the comfort and safety of their own home, at a time that suits them.

4.14 However, the risk with online applications is that people who stalk might make online applications for PSIOs against the person they are stalking. There might not be a process by which the registrar could filter inappropriate applications. This might make it easier for people to perpetrate ‘stalking through the courts’.

Cross-examination

4.15 The Family Violence Protection Act bans the respondent from personally cross-examining protected witnesses. This ban stops a person who has experienced family violence from being directly questioned by the person who allegedly did it. This same protection does not exist in the PSIO Act.

4.16 Under the Family Violence Protection Act, a ‘protected witness’ is:

• the affected family member or the protected person

• a child

• any family member of a party to the proceeding

• any person declared by the court to be a protected witness because they have a cognitive impairment or otherwise need the protection of the court.^[136]

4.17 A protected witness must not be personally cross-examined by the respondent unless:

• they are an adult; and

• they consent to being cross-examined by the respondent or, if they have a guardian, the guardian has consented; and

• if they have a cognitive impairment, they understand the nature and consequences of giving consent and are capable of giving evidence; and

• it would not have a harmful impact on the protected witness to be cross-examined by the respondent.^[137]

4.18 If a respondent who is prohibited from cross-examining a protected witness does not have a lawyer, and does not get one, the court must order Victoria Legal Aid to provide a lawyer to cross-examine the protected witness.^[138]

4.19 If the respondent has a lawyer, the court must order Victoria Legal Aid to provide a lawyer for the protected witness for the cross-examination.^[139]

4.20 At present, a person who has experienced stalking can be cross-examined by the person that stalked them. People who stalk might be rewarded for cross-examining the person they are stalking because it allows them to maintain contact with them. The PSIO system might therefore help the stalking behaviour to continue. This could be traumatic for victim survivors and discourage them from applying for a PSIO.

4.21 The difficulty in banning personal cross-examination in PSIO matters is that there are so many of them and they cover a wide range of non-stalking behaviours. If cross-examination by respondents was banned in all PSIO matters, this could mean that a lot of public money would be spent on lawyers, even for matters that should be sorted out by mediation, not in court.

Counselling orders

4.22 Under the Family Violence Protection Act, the court can order a respondent to attend counselling. Only some specialist Magistrates’ Courts can make counselling orders. The purpose is to increase the respondent’s acceptance of responsibility for the violence against a family member and encourage the respondent to change their behaviour.

4.23 Counselling orders are separate from FVIOs and can continue even if an intervention order is varied or revoked. Failure to comply with the order is an offence.

4.24 The PSIO Act does not provide this option to make counselling orders to address the behaviours of respondents.

4.25 Counselling orders under the Family Violence Protection Act are to attend group programs, known as men’s behaviour change programs. It is questionable whether these programs, which focus on ending problematic behaviour in existing relationships, are effective at treating people who commit stalking. (See Chapter 7).

4.26 People who engage in stalking can also have alcohol or mental health issues, or other factors that can contribute to their behaviour.

Making orders against people with cognitive impairments

4.27 Under the PSIO Act, the court can only make a PSIO if it is appropriate to do so. In making its decision, the court can consider whether a person with a cognitive impairment is able to understand and comply with the order.

4.28 This provision is designed to stop orders being made in circumstances where they will not work. If a person cannot understand or comply with a PSIO, there is little point in subjecting them to an order.

4.29 However, without other interventions for the person using stalking, it might lead to a gap in protection for the person being stalked, as well as a gap in addressing the treatment needs of the person using stalking.

Contraventions of intervention orders

4.30 It is an offence under both the PSIO Act and the Family Violence Protection Act to breach an intervention order.^[140] The penalty for both is level 7 imprisonment (two years maximum and/or a fine).

4.31 The Family Violence Protection Act has an additional two offences for more serious breaches of intervention orders. They have higher penalties (level 6 imprisonment/five years maximum). There are no additional breach offences under the PSIO Act.

4.32 It is an offence under the Family Violence Protection Act to breach an order with the intention to cause, or knowing that the conduct will probably cause, physical or mental harm to the protected person, or make the protected person fear for their safety or another person’s safety.^[141]

4.33 There is also an offence of persistent contravention of a family violence intervention order. The offence occurs when a person has breached an order and has also done so at least twice in the previous 28 days (in relation to the same protected person or the same FVIO/ FVSN), and on each occasion the accused knew or ought to have known that the conduct was a contravention.

Restrictions on publication of proceedings

4.34 The media can report on PSIO matters that come before the Magistrates’ Court. This may act as a barrier to people applying for PSIOs, especially if they have a public profile.

4.35 Under the Family Violence Protection Act there are restrictions on what information can be published about what happens in court so that people cannot be identified and their pictures cannot be used.^[142] There are restrictions on publication in the PSIO Act as well but they only apply to children.^[143] Restrictions on publication might help people who have been stalked feel that their privacy is protected so that they can seek protection through a PSIO application. This might be particularly useful for public figures who are being stalked and do not want to draw public attention to the stalking. In these situations, media attention might compound the sense of intrusion into the victim survivor’s private life. However, any restriction on publication needs to be balanced against the public interest in the transparency of justice.

Legal representation

4.36 There are few options for applicants and respondents in PSIO matters to be represented by free lawyers.

4.37 Under Victoria Legal Aid’s guidelines people over the age of 18 are not eligible to have a lawyer in PSIO matters unless they come within the state’s special circumstances guideline. A person will come within this guideline if they have a language or literacy problem or have an intellectual or psychiatric disability. In some limited circumstances a grant of legal assistance may be made for an applicant child over 14 or a respondent child under 18.

4.38 Not having a lawyer to help you with legal matters can be traumatic for anyone and can adversely impact upon the legal rights of respondents. However, publicly funded legal services are limited, and cannot provide a lawyer for everyone. In particular, we ask whether it is appropriate to provide a lawyer for parties to an interpersonal dispute whose matter might be better suited to mediation.

Appeals

4.39 A decision to make a final PSIO can be appealed to the County Court. At present the appeal judge hears all of the evidence again before making a fresh decision. This means that a person who has experienced stalking may have to appear as a witness for a second time. There is also the possibility that they may be cross-examined again by the person who stalked them. There is a risk that appeals can be used by a person who stalks to extend contact with the victim survivor.

4.40 Recently the Justice Legislation Amendment (Criminal Appeals) Act 2019 (Vic) changed the way that appeals of criminal cases will be decided in the County Court. Instead of a fresh hearing, appeals will be decided using a transcript of the evidence from the original hearing in the Magistrates’ Court.

129. Family Violence Protection Act 2008 (Vic) ss 5-8; Personal Safety Intervention Orders Act 2010 (Vic) s 61.

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130. Family Violence Protection Act 2008 (Vic) s 5.

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131. Victorian Law Reform Commission, Review of Family Violence Laws (Report No 10, March 2006) xxvii < https://www.lawreform.vic.gov.au/all-projects/family-violence >.

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132. Personal Safety Intervention Orders Act 2010 (Vic) s 5.

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133. Victoria, Parliamentary Debates, Legislative Assembly, 9 June 2010, 2227 (Rob Hulls, Attorney-General).

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134. Ibid 2225.

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135. Family Violence Protection Act 2008 (Vic).

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136. Ibid s70(1).

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137. Ibid s70(3).

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138. Ibid s71.

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139. Ibid s72.

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140. Personal Safety Intervention Orders Act 2008 (Vic) s 100; Family Violence Protection Act 2008 (Vic) s 123.

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141. Family Violence Protection Act 2008 (Vic).

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142. Ibid s 166.

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143. Personal Safety Intervention Orders Act 2010 (Vic) s 123.

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