Domestic Violence Laws in Australia

3. Provision for counselling and rehabilitation programs

3.3.1. In all Australian States and Territories, and in New Zealand, one aspect of the response to domestic violence is the referral of perpetrators to treatment or education programs. However, only in Victoria, Western Australia, Tasmania, the ACT, the Northern Territory and New Zealand does the relevant domestic violence legislation make specific provision for referral to such programs, either as part of the protection order process or, in the criminal context, as a condition of sentencing or bail. In this Report, we refer to orders made under these legislative provisions as ‘counselling orders’. We also refer to a ‘counselling program’, being a treatment or education program the subject of the counselling order.

3.3.2. In this Chapter we focus on the jurisdictions that specifically provide for counselling orders in their domestic violence legislation.¹⁷⁷ Across those jurisdictions, there is significant variation between the relevant legislative provisions.

Key differences between jurisdictions that specifically provide for counselling orders in domestic violence legislation

3.3.3. The key differences between the jurisdictions relate to:

• 
  when a counselling order may be made;
  
• 
  whether a counselling order is mandatory, voluntary, or made in connection with sentencing;
  
• 
  what is ‘counselling’;
  
• 
  counselling for protected persons and other persons;
  
• 
  the effect of a counselling order.
  

When a counselling order may be made

3.3.4. In all jurisdictions except Tasmania, the court makes the counselling order when making a domestic violence protection order. In Tasmania the counselling order is made as part of the sentencing process for a domestic violence related offence. In Western Australia a police officer making a police order may also refer a person to counselling.¹⁷⁸

Whether a counselling order is mandatory, voluntary, or made in connection with sentencing

Mandatory counselling orders

3.3.5. The Victorian, NZ and NT Acts all provide for counselling orders in which a respondent is directed to attend counselling, with criminal penalties¹⁷⁹ attaching if a respondent fails to comply.¹⁸⁰

3.3.6. Under the Victorian Act and the NZ Act, the court must make such an order against a respondent,¹⁸¹ subject to exceptions where it is not practicable or appropriate for the respondent to attend counselling. This involves an assessment of the respondent’s character, personal history and any other relevant circumstances.¹⁸² In Victoria, the assessment specifically takes into account language skills, disabilities, severe psychiatric or psychological conditions, and alcohol or other drug problems. Further, the respondent must be an adult living in a specified geographical area that is proximate to a domestic violence court.¹⁸³

3.3.7. Under the NT Act, the court may make such an order in a protection order, but only with the consent of the respondent.¹⁸⁴ The respondent must also be a suitable person for a counselling program and there must be a place available in a counselling program.¹⁸⁵

Voluntary counselling orders

3.3.8. At the other end of the spectrum, the WA Act and the ACT Act only make specific provision for courts to recommend, or refer persons to, counselling.

3.3.9. In Western Australia, in all cases where a protection order is made, the court or police officer must explain that counselling may assist the parties and, if the court thinks appropriate, must refer the parties to specific counselling programs. ¹⁸⁶

3.3.10. In the ACT, the court’s power to make such a recommendation is entirely discretionary.¹⁸⁷

Counselling orders in connection with sentencing

3.3.11. Unlike the other Acts, the Tasmanian Act only makes specific provision for counselling orders in connection with sentencing for domestic violence related offences and, in this regard, it interacts with the Sentencing Act 1997 (Tas). The court may order an assessment of whether or not the respondent is suitable to participate in a counselling program, ¹⁸⁸ and must take the results of any assessment into account in determining the appropriate sentence.¹⁸⁹

3.3.12. We note that other jurisdictions may also provide for counselling orders under general sentencing legislation.¹⁹⁰ However we do not consider such legislation in this section of the Report.

What is ‘counselling’?

3.3.13. In each jurisdiction counselling orders are described differently:

• 
  the Victorian Act refers only to ‘counselling’, without defining that term further;
  
• 
  the Western Australian provisions refer to ‘counselling and support services’ without defining these terms further;
  
• 
  in Tasmania, the Act refers to a ‘rehabilitation program’ which is a structured treatment program designed to reduce the likelihood that a person who has committed a family violence offence will re-offend;
  
• 
  the Northern Territory provisions also refer to a rehabilitation program, but define that program as a ‘perpetrators’ program’ under the Sentencing Act¹⁹¹ or another program to facilitate the respondent’s rehabilitation;¹⁹²
  
• 
  the ACT Act refers to counselling, training, mediation, rehabilitation or assessment;¹⁹³ and
  
• 
  in New Zealand, the Act refers to a programme with the primary objective of stopping or preventing domestic violence on the respondent’s part, promoting the protection of the protected person from domestic violence or assisting a child to deal with the effects of domestic violence.¹⁹⁴
  

3.3.14. Regardless of the way counselling orders are described in the legislation, in practice counselling programs vary widely.¹⁹⁵ For example, programs may:

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  focus on perpetrators taking responsibility for domestic violence, or address psychological issues;
  
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  be delivered to a group or be individually-tailored;
  
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  extend from 6 to 24 weeks or involve single sessions;
  
• 
  involve protected persons and family members.
  
• 
  Counselling for protected persons and other relevant persons
  

3.3.15. The WA Act,¹⁹⁶ ACT Act¹⁹⁷ and NZ Act,¹⁹⁸ specifically provide that the court may make a counselling order to assist persons other than the respondent, including the protected person (ACT, Western Australia and NZ), other relevant persons (ACT and NZ), or a child of the protected person (NZ). In NZ, the Act specifically provides that a protected person and a respondent cannot be required to attend programme sessions at which the other person is also present.¹⁹⁹

3.3.16. The Victorian, Tasmanian and NT Acts do not specifically provide for counselling orders for persons other than the respondent. However, these jurisdictions may provide for counselling to assist victims of domestic violence in other Acts. For example, the Victims Support and Rehabilitation Act 1996 (NSW) provides for victims and relevant family members to receive payment for approved counselling services.

3.3.17. Further, many jurisdictions provide for extra-legislative counselling programs for protected persons and other family members.

Effect of counselling orders

3.3.18. The effect of counselling orders depends on the purpose of the order and whether the order is directory or voluntary.

3.3.19. The Victorian, NT and NZ Acts specifically make failing to comply with a counselling order an offence.

3.3.20. In Victoria, failing to attend the interview or counselling without reasonable excuse is an offence.²⁰⁰ The maximum penalty is 10 penalty units (currently $1,134.20). Uniquely in Victoria, because a counselling order is a separate order from a protection order, if the protection order is revoked, the counselling order remains in place.

3.3.21. In the Northern Territory and New Zealand, a counselling order is part of a protection order and is enforceable as such. Thus a person who contravenes a counselling order is guilty of an offence.²⁰¹ This incurs a maximum penalty of 6 months imprisonment or a $5,000 fine in New Zealand,²⁰² and 400 penalty units (currently, $44,000) or 2 years imprisonment in the Northern Territory. Under the NT Act, if the defendant satisfactorily completes a rehabilitation program the court may grant leave to the defendant to apply for an order varying or revoking the protection order,²⁰³ or a police officer may apply to vary the DVO.²⁰⁴

3.3.22. The WA and ACT Acts make no specific provision for the effect of a failure to comply with a counselling order because attendance at counselling is voluntary.

3.3.23. Under the Tasmanian Act, the effect of the counselling order is to assess whether a rehabilitation program order should be included in the respondent’s sentence under the Sentencing Act 1997 (Tas). If the court orders the respondent to attend a rehabilitation program as part of the respondent’s sentence, any contravention of the order is an offence punishable by a maximum of 10 penalty units (currently $1,200) or 3 months imprisonment.²⁰⁵ However, instead of, or as well as, conviction, the court may order the respondent to resume the program or may cancel the rehabilitation order.²⁰⁶ Any rehabilitation assessment the respondent undergoes will also be relevant to sentencing and bail for any future offences.²⁰⁷

Jurisdictions that do not specifically provide for counselling in domestic violence legislation

3.3.24. The legislation dealing with domestic violence in New South Wales, Queensland and South Australia makes no specific provision for counselling orders. However, this does not necessarily preclude a court in these jurisdictions including a counselling order as a condition in a protection order. The general provisions relating to the conditions of protection orders in the Queensland Act,²⁰⁸ NSW Act²⁰⁹ and SA Act²¹⁰ all allow the court to impose any condition that the court considers necessary and desirable.

3.3.25. These jurisdictions also provide for extra-legislative counselling or counselling programs.²¹¹ In Queensland, for example, Chief Magistrate Irwin noted in late 2005 that magistrates often recommend counselling in domestic violence proceedings.²¹² This includes informal recommendations as well as, in some courts, orders to attend specific programs.²¹³

3.3.26. In New South Wales, the domestic violence intervention court model (DVICM), piloted in Wagga Wagga and Campbelltown from late 2005, places offenders on a counselling program as part of their sentence if the magistrate deems this to be appropriate.²¹⁴

3.3.27. In South Australia, family violence courts operate in conjunction with the Violence Intervention Program. The program is most commonly used in the criminal context, but the court may also refer respondents to protection orders to the program. When the program is used in the criminal context, defendants are remanded on bail for 6 weeks to be assessed and, if assessed as suitable, the court may extend bail to allow the defendant to participate in the ‘Stopping Violence Group’. When the program is used in the civil domestic violence context, participation is voluntary.²¹⁵

Issues affecting the practical operation of counselling orders

3.3.28. Concerns about counselling orders have been canvassed extensively in a number of reports across various jurisdictions.²¹⁶ Two of the issues that arise consistently are:

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  concerns about a lack of evidence of the effectiveness of counselling, in particular mandated counselling; and
  
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  whether counselling is a weak substitute for criminal penalties, and the related issue of whether respondents will attend counselling with the wrong motivations.
  

3.3.29. Although an analysis of these issues is beyond the scope of this Report, we note below some of the concerns raised in reviews of domestic violence legislation.

Effectiveness of counselling

3.3.30. Despite extensive research, there appears to be no clear consensus on the question of the effectiveness of counselling programs in general or specific programs currently operating in Australia and New Zealand.²¹⁷ This is made more complicated by the differences between programs both within and between jurisdictions, as well as the differences between theories and evaluation (such as whether ‘effectiveness’ is assessed by reference to recidivism rates, drop-out rates, women’s views of their safety and so on).²¹⁸ For example, a review of the Tasmanian Act noted a lack of available information about the efficacy of referring convicted offenders to the family violence offender intervention program.²¹⁹

3.3.31. The 1999 Model Laws Report cited arguments that mandatory counselling is rarely successful because it involves coercion, but voluntary counselling ‘could be ignored by defendants at will [and would involve] significant practical difficulties in enforcing counselling’.²²⁰ The 1999 Model Legislation included no specific provision for mandatory or voluntary counselling on the basis that, if a court considered necessary, a counselling order could be made under the general power to attach conditions to protection orders.

3.3.32. The Australian Law Reform Commission (ALRC) took a similar position in its 1986 Report.²²¹ Nevertheless, the ALRC considered that, as some offenders could benefit from such a program, counselling options should be available to courts to be used in conjunction with other conditions.

3.3.33. Similarly, the ACT Domestic Violence Prevention Council noted in its 2002 Report that, although magistrates commonly suggested counselling and treatment to respondents, ‘to direct a person to counselling through protection order proceedings may be well-intended but is fraught with complications’.²²²

3.3.34. By contrast, 1999 the National Crime Prevention report ²²³ had recommended mandatory referral of defendants to education programs with penalties for non-attendance or non-participation as part of ‘an integrated community- based intervention program’. This is essentially the position that was adopted in Victoria and New Zealand.

Counselling orders and sentence reduction

3.3.35. The ALRC in its 1986 report recognised that, where the conduct in question constitutes a criminal offence, enabling counselling orders to be used in conjunction with other conditions:

either without proceeding to conviction or, more usually, when a suspended sentence is imposed, may be used by offenders cynically, in order to escape a heavy punishment.²²⁴

3.3.36. The ALRC noted in this regard that compulsory participation in counselling could be counter-productive because offenders may not be motivated to change their behaviour.²²⁵

3.3.37. The Victorian Law Reform Commission also recognised this problem, noting that, in the criminal context, counselling orders may be used as a weak substitute for a criminal penalty, and in any context, offenders may attend counselling for the wrong reasons.²²⁶

3.3.38. Similarly, a 2007 discussion paper prepared for the South Australian Government’s recent review of domestic violence laws in that State (the Pyke Paper) noted that a problem with the South Australian violence intervention program approach was that defendants were utilising the program simply to receive a reduced penalty rather than because they were genuinely interested in changing their behaviour.²²⁷