Domestic Violence Laws in Australia

4. Portability of orders

Current legislative provision for registration and enforcement of interstate domestic violence protection orders

3.4.1. Clearly, the capacity for protection orders to be enforced across jurisdictions is an important issue for victims of domestic violence. This is especially so given that it is not uncommon for victims to move interstate (or to move from New Zealand to Australia or vice versa) in order to escape violent relationships. People who have obtained a protection order may also relocate for other reasons, for example, to be closer to their extended family or to seek employment.

3.4.2. Difficulty in enforcing protection orders granted in another state has, historically, been a key defect in the protection offered to victims by Australia’s fragmented system of domestic violence laws. For practical reasons, it is not always possible, much less efficient, for a person to make a new application for a protection order in every jurisdiction they enter. Further, if a protected person moves interstate in an attempt to hide from a respondent, making a fresh application for a protection order could jeopardise their safety by revealing their new location.

3.4.3. The domestic violence-related legislation across Australia now recognises the need for ‘portability’ of orders. In each State and Territory, provision is made for a person to apply for registration of a domestic violence protection order (or similar) made by a court of another Australian jurisdiction or New Zealand(an external order).²²⁸ The process for effecting registration differs, in minor respects, across jurisdictions. There are also differences in relation to matters such as whether, and if so how, an external order may be varied in the jurisdiction in which it is registered.²²⁹

3.4.4. However, in essential respects, the legislative provisions in each jurisdiction are of the same or very similar effect. In each jurisdiction, an external order may only be registered upon application by the protected person or another person. The registration process is essentially an administrative one, with registration being carried out by an official of the relevant court. Upon registration of an external order, in effect the order has the same legal status, and becomes enforceable, in the registering jurisdiction as if it were an order made under that jurisdiction’s legislation.

A national registration system for domestic violence orders?

3.4.5. While every jurisdiction thus makes provision for the manual registration, on application, of domestic violence protection orders, there is a question whether there could or should be a national registration scheme. This question was considered in the 1999 Model Legislation Report, which said that a national registration scheme, supported by a single database, could streamline and simplify inter-jurisdictional registration, and would enable protection orders:

… [to] attain immediate and true nationwide portability and provide needed protection to the victims of domestic violence, no matter where they live in Australia ²³⁰

3.4.6. The 1999 Model Legislation made provision for such a national scheme, premised on the use of the CrimTrac²³¹ database as the repository of the relevant information. The relevant provision of the 1999 Model Legislation²³² envisaged that, as soon as possible after the making of a domestic violence protection order by a court, the court clerk would be required to give written notice of the order to CrimTrac. Notice would also have to be given of any extension, variation, revocation or setting aside on appeal of a protection order. The information that courts would be required to provide in these notices was set out in the 1999 Model Legislation, for example, the names of the parties, the period for which the order has effect and the prohibitions or conditions imposed by the order.

3.4.7. The 1999 Model Legislation then included provisions having the effect that, upon the entry of an order made in one jurisdiction into the CrimTrac database, the order would be deemed to have been registered and to be enforceable in each other jurisdiction as if it had been made in that jurisdiction.²³³ (Here, it needs to be remembered that this was model State/Territory legislation. )

3.4.8. The national registration scheme proposed in the 1999 Model Legislation could thus have rendered unnecessary the manual jurisdiction-by-jurisdiction registration process of the kind currently provided for in the State and Territory legislation. Further, since police authorities in the States and Territories can access the CrimTrac database for relevant purposes, the implementation of the proposed scheme could also have provided a single, comprehensive source of information for police in relation to the terms and status of external domestic violence protection orders.

3.4.9. The CrimTrac database does include information about apprehended violence protection orders. Our understanding is that police in all jurisdictions provide at least some information to CrimTrac about such orders for inclusion in the database, although we understand that the amount of detail provided varies significantly between jurisdictions.

3.4.10. However, a national registration scheme of the kind proposed by the 1999 Working Group – one that would achieve automatic national enforceability of orders as soon as they are made – has not been implemented. That is, the States and Territories have not made the legislative amendments that would be necessary in order to achieve this.

3.4.11. We have not been able to ascertain why a scheme of the kind proposed in 1999 was not pursued. Nor have we been able to find any post-1999 commentary considering the need for or merits of such a scheme. However, the issue was considered in the Pyke Paper.²³⁴ The Pyke Paper referenced the national database and registration scheme proposed in the 1999 Model Legislation and put, as an option for consideration by the South Australian Government, the possibility of that State, in consultation with the other States and Territories and the Commonwealth, pursuing:

the establishment, as part of CrimTrac (or otherwise), a national database of all State and Federal orders in respect of domestic violence orders, injunctions or orders for the personal protection of parties or children.²³⁵