Domestic violence as terrorism: Can control orders succeed where DV orders have failed?

Abstract

Scholars have recently begun to explore the similarities between domestic violence and domestic terrorism. Both forms of offending rely on the use and threat of violence in conjunction with controlling behaviours to instil fear in their victims, and both forms of offending are predominantly committed by men. Yet despite these similarities, terrorism offences are treated as grave offences against the security of the nation-State, whilst domestic violence is not. The purpose of this paper therefore is to examine whether an amended control order framework – appropriately adapted to the unique criminological roots of domestic violence – might be a better mechanism for controlling these insidious crimes.

On 28 February 2015, Not Now, Not Ever, the report of a Queensland government special taskforce, was released. Investigating the prevalence and impact of domestic violence (DV) in Queensland, it made several horrific observations on the scale of offending, finding that – on average – DV leaves one woman dead every single week. ¹ The report also identified, in terms of legal responses, that

there is unnecessary complexity and fragmentation within the system that is not conducive to an effective response. Often the combined impact of this complexity and fragmentation creates barriers for the very people the system is trying to serve … ²

Only one month earlier, in January 2015, the Commonwealth and NSW governments had published a report detailing their review into the siege by Man Haron Monis of the Lindt Café in Martin Place – an act that Monis himself referred to as a terrorist attack. ³ Most telling in the Commonwealth-NSW review was a finding that Monis was, at the time of his offending, on bail for attempted murder. ⁴

What links these two reports most concerningly is that Monis – an individual largely treated as a terrorist ex post for his attack on the Lindt Café – exhibited a lengthy history of DV offences and behaviour. He was charged with stalking his ex-partner Noleen Hayson Pal in July 2011 (and then acquitted), then charged with accessory to her murder in November 2013. ⁵ A further series of 40 charges involving allegations of indecent assault and sexual assault were laid between 14 April 2014 and 10 October 2014. ⁶ Yet despite these various allegations, Monis was never the subject of a final Apprehended Domestic Violence Order (ADVO) nor was bail ever refused. ⁷ Had Monis’ behaviour been viewed through the conceptual lens of terrorism, a presumption against bail would have operated and it is unlikely he would have been at large. ⁸

Monis’ behaviour and treatment by the NSW justice and legal systems gives an empirical flavour to the emerging scholastic paradigm that DV is a form of ‘domestic’, ‘home-grown’ or ‘intimate’ terrorism. ⁹ Both extremist terrorists and DV offenders seek to use fear as a tool of control to bend or manipulate their victims into conceding to demands. Both use various forms of violence as well as threats of future violence to drive home that fear in their victims. However, unlike terrorism DV can be ‘a kind of slow-motion terrorism, subjecting entire families to almost unimaginable levels of fear and anxiety – and sometimes ending in murder’. ¹⁰

In the literature, studies have demonstrated connections between these forms of offending ¹¹ as well as the language used to define them in Western law. ¹² Equally, scholars at the intersection of law and social science have remarked upon the marginalisation and normalisation of violence against women in a security context: ‘violence against women in the developing world is seen as a security concern to the West, and yet violence against women in the West is minimised, ignored and/or individualised’. ¹³ In response, some have argued that interpersonal violence and the violence of war are not distinct forms of violence. ¹⁴ Indeed, some of these arguments have been made since the 19^th century. ¹⁵ The result, as Crone and Harrow suggest, is that in both semantic and legal content the idea of a distinction between domestic terrorism and extremist terrorism perpetrated against the State is entirely artificial. ¹⁶ If that statement can be taken as true (and we suggest that it is) then the distinction between extremist terrorism, viz an attack on the State, is functionally little different to domestic terrorism as an attack on an intimate partner, child or family member.

The scope of the problem

It is our thesis therefore, that DV offences ought to be viewed through the same lens as extremist terrorism offences, and the types of remedies afforded to prospective victims expanded in the same way. This is of specific relevance in Australia, where domestic violence protection orders (however they may be named under state and territory laws ¹⁷ ) are currently the most common legal remedies available to survivors. ¹⁸ The equivalent restriction in Commonwealth law for extremist terrorism offenders – control orders – have been far more contentious, criticised for their infringement of human rights and utilised only a handful of times since their enactment. ¹⁹

Much of the criticism of control orders has been on the imposition of restrictions and prohibitions on persons who – at the time of their issue – may not have engaged in criminal conduct. Yet this is precisely the attraction of DV protection orders. Such orders aim to prevent the far more insidious and likely form of violence against (largely female) intimate partners, children and family members. Any infringement of human rights would largely be proportional in circumstances where much of DV is considered ‘hidden violence’ that conceptually – and therefore legally – is not viewed as ‘real violence’. ²⁰ This is despite the empirical findings that more victims, mostly women and by orders of magnitude, have been killed by DV offenders than have ever been killed as the result of all terrorist attacks that have taken place in Australia since Federation. ²¹

Both forms of offending (DV and extremist terrorism) demonstrate similarities in law as to the form of coercion and influence as well as the motivation for that violence or threat of violence. Violence in DV is often critical to establishing control as well as enforcing that control and punishing deviance. ²² Terrorists – such as Monis in the Lindt Café siege – behave similarly. ²³ There is no doubt that the Lindt Café siege was an awful and traumatic incident for many, but the legal response seems somewhat disproportionate in circumstances where some scholars disagree on whether Monis was a terrorist at all. ²⁴ In fact, the typologies of DV and terrorism share significant drivers, including a need to control and dominate the will of others, a need to escalate use of force up to and including murder, a lack of insight or understanding of how their offending affects others, and a willingness to justify and legitimise their behaviours through some broader philosophy. ²⁵

There are similarities under our legal systems as well. Extremist ‘terrorism’ is a contested definition. Under the Commonwealth criminal law, terrorism requires proof of a proximal element and a behavioural element. ²⁶ The proximal element is intention-based: needing to ‘advanc[e] a political, religious or ideological cause’ ²⁷ as well as ‘coerc[e], or influenc[e] by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or … intimidat[e] the public or a section of the public’. ²⁸ The behavioural element of terrorism offences then requires an act that causes physical harm, damage to property, causes a person’s death, endangers any person’s life (other than the person undertaking the act), or creates a serious risk to the health or safety of the public or a section of the public. ²⁹

Domestic violence bears some legal similarities to extremist terrorism. There must be a proximal element (the ‘relevant relationship’) which includes spouses, couples, parents and relatives, as well as ‘informal care relationships’. ³⁰ Courts are also given a broad remit to determine the circumstances where these relationships may have been formed. ³¹ There must also be a behavioural element (the domestically violent conduct), that covers behaviours which are physically, emotionally, psychologically or sexually abusive, or exhibits patterns of control over finances or economically, involves aspects of threats or coercion, or ‘in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else’. ³²

Comparing extremist terrorism and DV offences in this way, all acts of extremist terrorism (both completed and inchoate) are criminalised whereas domestic violence is largely treated as a civil matter, ³³ where survivors are largely unsupported by the legal system and must seek out their own remedies (or in cases where police assist only grudgingly). ³⁴ In those cases where orders are granted, non-contravention with orders made on the balance of probabilities might result in a criminal charge and conviction (assuming the survivor is alive and willing to give evidence). ³⁵ The parties involved are also different – a charge of terrorism will receive the full weight of the State borne through the Police and/or Director of Public Prosecutions, while DV is largely viewed as a matter between two persons assumed to have equality before the law. ³⁶ Much of this is because of a long-held (and we say erroneous) legal view that DV is an ‘adjunct’ to criminal offending – a subset of the whole – rather than a malicious and insidious form of offending with its own typologies and motivations. ³⁷

The stigma associated with conviction for terrorism offences compared to DV offences are also wildly divergent. ³⁸ The differing viewpoints of terrorism convictions versus DV convictions have important repercussions. This is because ‘criminal justice performs a function that is not only instrumental in enforcing legal and social norms’ but also because the ‘[c]riminal law is a powerful agency of public disapproval and reprobation’. ³⁹ Subjective views in this realm matter – survivors of DV hold concerns that police act as ‘gatekeepers’ and keep serious matters out of court, while police hold concerns that courts ‘water down’ protection orders without justification. ⁴⁰ This is perhaps an unsurprising set of problems given that much of the problem is about Australian policy siloing, and a lack of proper funding for DV cases. ⁴¹ By borrowing policy responses from a counterterrorism environment, the incidental benefit is likely to be that legal practitioners, law enforcement and policymakers will consider DV to be an offence of a higher gravamen and seriousness.

Australian legal responses to domestic violence thus need to be more akin to the responses to the ‘war on terror’, which has arguably been waged for the last two decades. ⁴² Approaching DV as a form of terrorism encourages the adoption of altered responses and mechanisms, and encourages those charged with defending its provisions to take the offending (and non-contravention with attempts at control) more seriously. ⁴³ Therefore, we intend to suggest how some of the elements of the terrorism regulatory regime may be adapted to potentially confront the legal challenge at the heart of DV – treating it with the seriousness it deserves.

Control orders: how elements could apply to DV

Control orders are an important aspect of the regulatory regime in responding to terrorism offences in Australia. ⁴⁴ Subject to the authorisation of the Minister for Home Affairs, ⁴⁵ a senior AFP (Australian Federal Police) officer may seek a control order from a court. Such an application must include an affidavit of a senior AFP officer, the information which was provided to the Home Affairs Minister, an explanation for each of the proposed obligations, prohibitions or restrictions seeking to be imposed on the subject of the order (including reasons why those should not be imposed), as well as outcomes of all previous applications for control orders or post-sentence orders in respect of the person. ⁴⁶

The court may only issue the control order in circumstances where it is satisfied, on the balance of probabilities, of two matters. The court must firstly be satisfied that (a) the making of the order would ‘substantially assist’ in preventing a terrorist act or the provision of support to such an act, (b) that the subject of the order has participated in training with a terrorist organisation or ‘engaged in a hostile activity in a foreign country’ or (c) the person had been convicted of a terrorism offence in Australia or abroad. ⁴⁷

Second, the court must be satisfied that in making the order, each of the ‘obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted’ to achieve the purposes of the control order regime. ⁴⁸ The court must take into account a number of factors, including the age, maturity, sex and background (including lifestyle, culture and traditions) of the person, their physical and mental health, as well as their human rights to family, education and freedom of religion. ⁴⁹

Control orders can also contain an extensive suite of restrictions, prohibitions and limitations on the accused’s conduct (even in the absence of a criminal conviction). ⁵⁰ Such conditions may limit a control order subject from associating with certain persons, owning or using particular assets, accessing certain technologies (such as smartphones or the Internet) or requiring them to submit to named forms of digital, electronic or forensic surveillance (such as tracking devices). ⁵¹

Comparing control orders to DV protection orders, we identify the first point of attractiveness of invoking elements of control orders. When considering a DV protection order, the court is usually asked to determine that a ‘relevant relationship’ ⁵² (the proximal element) existed at the time of the application. This can be an unnecessary exercise where DV survivors may have tried to escape, to end the relationship or even reconcile any number of times before the court conducts its assessment. ⁵³ The challenge is that ‘proof of structural violence … is generally required of the ones who suffer violence and not the perpetrators’. ⁵⁴ In effect, survivors must ‘prove’ their experiences to the court’s satisfaction.

Control orders, on the other hand, do not require quantification of the proximal element, ie proof of a relationship which is contrary to the Australian body politic or its interests. The Criminal Code merely requires reasonable suspicion on the part of the AFP officer, and the satisfaction of the court that the order would prevent the conduct of a terrorist act, and that the obligations, restrictions or prohibitions are ‘reasonably necessary, and reasonably appropriate and adapted’ to achieve the purposes of the regime. By taking a similar approach to the DV arena, survivors are freed of the burden of proving the nature of their relationship to secure protection.

Control orders are also far more expansive in their limitations and restrictions, and additionally permit police to impose electronic surveillance measures ⁵⁵ and forensic identification requirements ⁵⁶ (easily adaptable to DV offenders and invaluable for proving future offences). These can include requirements to stay away from persons or places, not leave the country, carry and answer a prescribed mobile phone, and attend specified training or counselling. ⁵⁷ Measures may also stop offenders using specific technology, a critical control in preventing modern DV offences such as stalking. ⁵⁸ Such requirements would be uniquely suitable to the DV context.

On the other hand, while DV protection orders may contain any number of obligations, restrictions or prohibitions, they rarely appear to. Standard conditions are required (generally requiring ‘good behaviour’ towards the person seeking protection – the aggrieved – and any children), but the court is given great latitude in respect of what conditions to apply. ⁵⁹ Further, in many instances the application for DV orders is driven by the aggrieved and not police. Although DV protection orders may be made if a person is convicted for an offence which exhibits DV as defined in the Act ⁶⁰ (in the terrorism context, so-called post-sentence orders may be made after a conviction for terrorism offences ⁶¹ ), these orders may not be made unless the aggrieved, respondent, and prosecuting authority have been permitted to give evidence and lodge submissions. ⁶² In many respects, this process retraumatises survivors and witnesses, and may leave leaves them unwilling to participate in long and drawn-out court proceedings. ⁶³

Paradoxically, the threshold for control orders is lower than that of DV orders – a police officer need only ‘reasonably suspect’ that the subject of a control order has engaged in one ground of proscribed conduct, rather than ‘reasonably believe’ that DV has been committed. ⁶⁴ Since that principle was decided, reasonable belief has been elided as ‘not merely an “apprehension” or even a “fear”’, ⁶⁵ but the formation of ‘the requisite belief and the belief must be based on reasonable grounds’. ⁶⁶ The assessment must also be conclusively attributed to a hypothetical, reasonable layperson informed of the facts and in the same position as the applicant. In other words, ‘[t]he member’s belief in the reasonableness of his own belief is not relevant to the task of the court. The court must arrive at its own independent answer through its own independent assessment of the objective circumstances which the member took into account’. ⁶⁷ Reasonable suspicion on the other hand

involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs […]. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. … Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value. ⁶⁸

Therefore, the lower threshold element from control orders could be applied to DV protection orders to protect survivors in circumstances where an officer ‘reasonably suspects’ DV has occurred.

Enacting a DV order framework at the Commonwealth level (similar to control orders) would also deal with jurisdictional discrepancies and ‘join up’ the fragmented state and territory frameworks. Unlike the consistency of the Commonwealth control orders scheme, DV schemes also suffer from the fragmentation and anomalies expected from various states and territories exercising their own jurisdictions. Consider the following:

• In Victoria, orders may be sought from a police officer of the rank of Sergeant or higher, but only where the notice is deemed necessary before a matter can be heard in court; ⁶⁹

• In WA, restraining orders (as they are still known) may only be made where there is ‘reasonable belief’ (but not reasonable suspicion) of family violence; ⁷⁰

• In South Australia, interim orders can only be made by police where an offender is in police custody. Those offenders who can escape arrest are thus beyond the reach of protective orders; ⁷¹

• In Tasmania, protective orders may only be made by police to protect direct family members, such as children or spouses; ⁷² and

• In the Northern Territory, applications may only be made by police because of urgent circumstances or practical inability to attend court and not for any other reason. ⁷³

There are other oddities too – the NSW Act proscribes a list of offences which constitute the behavioural element for a DV offence. Yet offences such as ‘predatory’ ⁷⁴ or ‘dangerous’ ⁷⁵ driving, ‘dangerous driving’ occasioning death or bodily harm, and causing the death of a foetus ⁷⁶ are not listed and can never be considered a DV offence. This is despite empirical studies showing both vehicular violence and the deliberate murder of unborn children are typical forms of DV crimes. ⁷⁷

These anomalies are not mere semantics when the argument is about protecting a vulnerable person or persons from the violent criminality of another. They represent significant difficulties in applying protection orders from one jurisdiction to another, despite the presence of the national registry. That is not to say that the current legislative framework of control orders could or should, in their entirety, be applied to DV – only certain elements of them. The Constitution lacks a sufficient head of power under which the Commonwealth could enact a single law creating a control order framework. ⁷⁸ Perhaps instead, the states and territories could consider enacting ‘referring’ laws which pick up and apply the law of a single jurisdiction, similar to what has been done in regulating health practitioners ⁷⁹ and heavy vehicles. ⁸⁰ This single Act could unify the application of control order elements to a DV space, and eliminate the disparities in their application across Australia.

Conclusion

This article has taken a somewhat controversial approach in considering how some of the aspects or elements of control orders might be adapted and utilised in preventing incidents of DV. These laws on their own would never achieve long-lasting, significant social change. Yet we submit that, by embedding some of the characteristics of control orders alongside DV, support networks, police and offenders will take notice of the seriousness of the issue. Instead of requiring survivors of DV to retell their lived experiences (and suffer the trauma of that experience), applications should be based on the ‘reasonable suspicion’ of police that such an order might protect vulnerable persons.

Such orders should be viewed by the legal system as part of a broader strategy supporting resistance and resilience by survivors to escape coercion and manipulation. Only when the Australian legal system starts to treat DV with the same degree of seriousness as terrorism will we start to see changes in the broader behaviours of society.