Law Reform Processes and Criminalising Coercive Control

ABSTRACT

In 2005, Reg Graycar and Jenny Morgan published ‘Law Reform: What’s in It for Women?’ in which they raised a number of issues and tensions faced in feminist engagements with law reform processes. Relying on Graycar and Morgan’s work I explore three recent law reform processes focused on whether coercive control should be criminalised: the NSW Joint Select Committee on Coercive Control, the Queensland Women’s Safety and Justice Taskforce, and the South Australian exposure Bill. All answered this question in the affirmative. However, there were distinct differences in terms of their respective terms of reference, processes undertaken, participation of diverse and marginalised groups, consideration of implementation issues, and engagement with existing research. This article explores the strengths and weaknesses of these processes. The importance of Graycar and Morgan’s work is that it insists that we examine the processes of law reform, and not just the outcomes. While outcomes are obviously critical, the processes necessarily shape what those outcomes might be. The diversity of views around criminalisation of coercive control meant that attention to these processes was critical, particularly for those who are most likely to experience violence and state interventions in their lives.

KEYWORDS:

• Law reform processes
• coercive control
• accessibility
• implementation

Acknowledgements

I would like to thank the two anonymous reviewers and the editors for all the comments on this paper. I would also like to thank my colleagues, Jenni Millbank, Tracey Booth and Miranda Kaye, who provided me with useful and generous feedback on earlier drafts. I would also like to acknowledge Juliette McAleer’s conversations about voice in the context of the Queensland Taskforce that assisted in expanding my thoughts on this issue.

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Notes

1 Reg Graycar and Jenny Morgan, ‘Law Reform: What’s in It for Women?’ (2005) 23 Windsor Yearbook of Access to Justice 393.

2 ibid 393.

3 I made submissions to two of these processes: Jane Wangmann (Submission No 116 to the NSW Joint Select Committee on Coercive Control, 8 February 2021); Jane Wangmann (Submission to the Queensland Safety and Justice Taskforce Discussion Paper 1, 28 July 2021). My submissions focused on the challenge of implementation, continuing gaps in policing, the context of the Australian jurisdictions including colonisation, the risks of victims being misidentified as a perpetrator or not being identified as a victim, and the need to enhance safety for all victims.

4 Joint Select Committee on Coercive Control, Coercive Control in Domestic Relationships (Parliament of New South Wales 2021) <www.parliament.nsw.gov.au/ladocs/inquiries/2626/Report%20-%20coercive%20control%20in%20domestic%20relationships.pdf> accessed 29 July 2022.

5 Women’s Safety and Justice Taskforce, ‘Hear Her Voice: Report One: Addressing Coercive Control and Domestic and Family Violence in Queensland’ (2021). The report was published in three volumes.

6 See yourSAy, ‘Criminalising Coercive and Controlling Behaviours’ <https://yoursay.sa.gov.au/control> accessed 11 May 2022. Since the completion of this article a further law reform process on this issue has commenced in Western Australia by the Commissioner for Victims of Crime, Department of Justice with submissions closing 30 July 2022. See Commissioner for Victims of Crime, ‘Coercive Control Consultation’ (Government of Western Australia, 12 July 2022) <www.wa.gov.au/organisation/department-of-justice/commissioner-victims-of-crime/coercive-control-consultation?msclkid=20bee396d0ff11ec8797b0d96e3b3809> accessed 11 May 2022.

7 Serious Crime Act 2015 (England and Wales) s 76; Domestic Abuse (Scotland) Act 2018; Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021 s 1.

8 Domestic Violence Act 2018 (Ireland) s 39.

9 Many terms are used to describe violence and abuse in personal relationships. These are often used interchangeably but have different meanings linked to whether gender is seen as central and the inclusion of broader familial relationships. See Helen MacDonald, ‘What’s in a Name? Definitions and Domestic Violence’ (Discussion Paper No 1, Domestic Violence and Incest Research Centre 1998). In this article, I use the term IPV because work on coercive control has largely centred on intimate partner relationships: see Evan Stark, Coercive Control: How Men Entrap Women in Personal Life (Oxford University Press 2007).

10 Stark (n 9) 16.

11 For example, see Hayley Gleeson, ‘Coercive control: The “Worst Part” of Domestic Abuse Is Not a Crime in Australia. But Should It Be?’ ABC News (19 November 2019) <www.abc.net.au/news/2019-11-19/coercive-control-domestic-abuse-australia-criminalise/11703442> accessed 11 May 2022; ‘It’s Time to Make Coercive Control a Crime’ Marie Claire (12 January 2021) <www.marieclaire.com.au/coercive-control-campaign> accessed 11 May 2022.

12 R Emerson Dobash and Russell Dobash, Violence against Wives: A Case against the Patriarchy (Free Press 1979) 15.

13 Ellen Pence and Michael Paymar, Education Groups for Men Who Batter: The Duluth Model (Springer Publishing 1993).

14 James Ptacek, Battered Women in the Courtroom: The Power of Judicial Responses (Northeastern University Press 1999) 10; Stella Tarrant, Julia Tolmie and George Giudice, Transforming Legal Understandings of Intimate Partner Violence (Australia’s National Research Organisation for Women’s Safety 2019).

15 For example, Judicial Commission of NSW, Equality Before the Law Benchbook (2001) <www.judcom.nsw.gov.au/publications/benchbks/equality/section07.html#p7.5.3> accessed 29 May 2022; NSW Police Force, ‘Code of Practice for the NSW Police Force Response to Domestic and Family Violence’ (NSW Government 2018) 2; Victoria Police, ‘Code of Practice for the Investigation of Family Violence’ (3rd edn, 2019) 11.

16 For example, Family Law Act 1975 (Cth) s 4AB; Family Violence Protection Act 2008 (Vic) s 5; Domestic and Family Violence Protection Act 2012 (Qld) s 8.

17 These limitations also underpinned the development of civil protection orders: see Jane Wangmann, ‘Incidents v Context: How Does the NSW Protection Order System Understand Intimate Partner Violence?’ (2012) 34(4) Sydney Law Review 695.

18 For example, Sandra Walklate, Kate Fitz-Gibbon and Jude McCulloch, ‘Is More Law the Answer? Seeking Justice for Victims of Intimate Partner Violence through the Reform of Legal Categories’ (2018) 18(1) Criminology & Criminal Justice 115.

19 See Leigh Goodmark, ‘Gender-Based Violence, Law Reform, and the Criminalization of Survivors of Violence’ (2021) 10(4) International Journal for Crime, Justice and Social Democracy 13, 15.

20 This is an extensive and diverse body of work: see, for example, Carol Smart, ‘Feminism and Law: Some Problems of Analysis and Strategy’ (1986) 14 International Journal of the Sociology of Law 109; Margaret Thornton, ‘Feminism and the Contradictions of Law Reform’ (1991) 19(4) International Journal of the Sociology of Law 453; Elizabeth M Schneider, Battered Women and Feminist Lawmaking (Yale University Press 2000); Margaret Davies, ‘Legal Theory and Law Reform: Some Mainstream and Critical Approaches’ (2003) 28(4) Alternative Law Journal 168; Susan M Armstrong, ‘Is Feminist Law Reform Flawed? Absentionists and Sceptics’ (2004) 20(1) Australian Feminist Law Journal 43; Rosemary Hunter, Domestic Violence Law Reform and Women’s Experience in Court: The Implementation of Feminist Reforms in Civil Proceedings (Cambria Press 2008); Rosemary Hunter and Danielle Tyson, ‘The Implementation of Feminist Law Reforms: The Cast of Post-Provocation Sentencing’ (2017) 26(2) Social & Legal Studies 129.

21 Hunter (n 20) 7.

22 Carol Smart, Feminism and the Power of Law (Routledge 1989) 5.

23 For example, Renée Römkens, ‘Law as a Trojan Horse: Unintended Consequences of Rights-Based Interventions to Support Battered Women’ (2001) 13(2) Yale Journal of Law and Feminism 265, 267.

24 Hunter (n 20) 6–9.

25 For example, Ruth Lewis and others, ‘Law’s Progressive Potential: The Value of Engagement with the Law for Domestic Violence’ (2001) 10(1) Social & Legal Studies 105; Clare McGlynn and Kelly Johnson, Cyberflashing: Recognising Harms, Reforming Laws (Bristol University Press 2021).

26 Tabitha Lean and others, ‘Abolition on Indigenous Land: Alternative Futures and Criminology’s Role’ (John Barry Memorial Lecture, University of Melbourne, 18 March 2021) <https://www.youtube.com/watch?v=peA6_WdIbtE&t=1347s> accessed 19 May 2022; Chelsea Watego and others, ‘Carceral Feminism and Coercive Control: When Indigenous Women Aren’t Seen as Ideal Victims, Witnesses or Women’ The Conversation (25 May 2021) <https://theconversation.com/carceral-feminism-and-coercive-control-when-indigenous-women-arent-seen-as-ideal-victims-witnesses-or-women-161091> accessed 11 May 2022.

27 See Leigh Goodmark, Decriminalizing Domestic Violence: A Balanced Policy Approach to Intimate Partner Violence (University of California Press 2018); Ardath Whynacht, Insurgent Love: Abolition and Domestic Homicide (Fernwood Publishing 2021).

28 Tanya Serisier, Speaking Out: Feminism, Rape and Narrative Politics (Palgrave Macmillan 2018) 91.

29 Davies (n 20).

30 Graycar and Morgan (n 1) 397.

31 Natalina Nheu and Hugh McDonald, By the People, for the People? Community Participation in Law Reform (Law and Justice Foundation of New South Wales 2010) 282.

32 For example, see the provocative and unhelpful framing of this division in Paul McGorrery and others, ‘Coercive Control is a Form of Intimate Terrorism and Must Be Criminalised’ The Guardian (6 October 2020) <www.theguardian.com/commentisfree/2020/oct/06/coercive-control-is-a-form-of-intimate-terrorism-and-must-be-criminalised> accessed 24 May 2022.

33 For some discussion of these arguments see Julia R Tolmie, ‘Coercive Control: To Criminalize or Not to Criminalize?’ (2018) 18(1) Criminology & Criminal Justice 50; Walklate, Fitz-Gibbon and McCulloch (n 18); Marilyn McMahon and Paul McGorrery (eds), Criminalising Coercive Control: Family Violence and the Criminal Law (Springer 2020).

34 Luke McNamara and others, ‘Understanding Processes of Criminalisation: Insights from an Australian Study of Criminal Law-Making’ (2021) 21(3) Criminology and Criminal Justice 387.

35 Graycar and Morgan (n 1) 394.

36 McNamara and others (n 34) 391.

37 ibid 392.

38 See ‘It’s Time to Make Coercive Control a Crime’ (n 11); Amanda Gearing, ‘Queensland Moves to Criminalise Coercive Control after Murder of Hannah Clarke and Her Children’ The Guardian (17 February 2021) <www.theguardian.com/society/2021/feb/17/queensland-moves-to-criminalise-coercive-control-after-of-hannah-clarke-and-her-children> accessed 29 May 2022.

39 Department of Communities and Justice, ‘Coercive Control: Discussion Paper’ (NSW Government, October 2020).

40 Joint Select Committee on Coercive Control (n 4) iii.

41 NSW Government, ‘NSW Government Response to the NSW Joint Select Committee on Coercive Control’, <www.parliament.nsw.gov.au/ladocs/inquiries/2626/Government%20response%20-%20Joint%20Select%20Committee%20on%20Coercive%20Control%20-%2017%20December%202021.pdf> accessed 11 May 2022. Recommendations were supported in full, in part, or noted. This article was written before the release of the NSW Government’s exposure Bill on 20 July 2022, <https://www.nsw.gov.au/have-your-say/coercive-control-exposure-draft-bill#:~:text='Coercive%20control'%20is%20a%20form,sexual%2C%20psychological%20or%20financial%20abuse> accessed 9 August 2022.

42 Women’s Safety and Justice Taskforce, Hear Her Voice: Report One: Addressing Coercive Control and Domestic and Family Violence in Queensland (2021) vol 1, vi–vii (Hear Her Voice vol 1).

43 Women’s Safety and Justice Taskforce, Hear Her Voice: Report One: Addressing Coercive Control and Domestic and Family Violence in Queensland (2021) vol 3, app 4 (Hear Her Voice vol 3).

44 Women’s Safety and Justice Taskforce, ‘Options for Legislating against Coercive Control and the Creation of a Standalone Domestic Violence Offence: Discussion Paper 1’ (2021) (‘Discussion Paper 1’).

45 Women’s Safety and Justice Taskforce, ‘Discussion Paper 2: Women and Girls’ Experience of the Criminal Justice System: Proposed Focus Areas’ (2021); Women’s Safety and Justice Taskforce, ‘Discussion Paper 3: Women and Girls’ Experiences across the Criminal Justice System as Victims-survivors of Sexual Violence and also as Accused Persons and Offenders (2022).

46 See Women’s Safety and Justice Taskforce, ‘Taskforce Engagement’ <www.womenstaskforce.qld.gov.au/consultation/taskforce-engagement> accessed 11 May 2022; Hear Her Voice vol 3 (n 43) app 2.

47 Hear Her Voice vol 1 (n 42) xxx. While the NSW Committee also included a precondition this centred on a ‘prior program of education, training and consultation’ about coercive control and the new offence, not the broader operation of the criminal legal system: Joint Select Committee on Coercive Control (n 4) xiv, recommendation 1.

48 Queensland Government, ‘Queensland Government Response to the Report of the Queensland Women’s Safety and Justice Taskforce, Hear Her Voice – Report One: Addressing Coercive Control and Domestic and Family Violence in Queensland’ (May 2022) 6.

49 Annastacia Palaszczuk (Premier and Minister for the Olympics) and Shannon Fentiman (Attorney-General and Minister for Justice, Minister for Women and Minister for the Prevention of Domestic and Family Violence), ‘Commission of Inquiry to Examine Queensland Police Service Responses to Domestic and Family Violence’ (Media Statement, 11 May 2022).

50 Attorney-General’s Department, ‘YourSAy Consultation Results: Criminal Law Consolidation (Abusive Behaviour) Amendment Bill 2021’ (October 2021) <https://yoursay.sa.gov.au/72007/widgets/350184/documents/218087> accessed 11 May 2022.

51 Criminal Law Consolidation (Abusive Behaviour) Amendment Bill 2021 (SA). This Bill did not pass parliament prior to the election on 19 March 2022 which resulted in a change of government in South Australia.

52 Graycar and Morgan (n 1) 397.

53 ibid 398.

54 ibid.

55 Australian Law Reform Commission (ALRC) and NSW Law Reform Commission (NSWLRC), Family Violence: A National Legal Response (2010) [13.85]–[13.92]; Special Taskforce on Domestic and Family Violence, ‘Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland’ (Queensland Government 2015) 14–15; Royal Commission into Family Violence, ‘Volume III: Report and Recommendations’ (Victorian Government 2016) 189, 228.

56 ALRC and NSWLRC (n 55); Special Taskforce on Domestic and Family Violence (n 55); Royal Commission into Family Violence (n 55).

57 For example, Joint Select Committee on Coercive Control (n 4) 21–22, 27, 28, 36; Women’s Safety and Justice Taskforce, Hear Her Voice: Report One: Addressing Coercive Control and Domestic and Family Violence in Queensland (2021) vol 2, 272 170–81 (Hear Her Voice vol 2).

58 Joint Select Committee on Coercive Control (n 4) 110.

59 Department of Communities and Justice (n 39).

60 For example, Julia Tolmie (Submission No 23 to the Joint Select Committee on Coercive Control, 27 January 2021); De Saxe O’Neill Family Lawyers (Submission No 31 to the Joint Select Committee on Coercive Control 27 January 2021); Jess Hill (Submission No 91 to the Joint Select Committee on Coercive Control, 29 January 2021); Centre for Women’s Economic Safety (Submission No 92 to the Joint Select Committee on Coercive Control, 29 January 2021); Australia’s National Research Organisation for Women’s Safety (ANROWS) (Submission No 96 to the Joint Select Committee on Coercive Control, 29 January 2021).

61 See Queensland Government, ‘Terms of Reference: Taskforce on Coercive Control and Women’s Experience in the Criminal Justice System’ (2021) <www.justice.qld.gov.au/__data/assets/pdf_file/0010/672706/womens-safety-justice-taskforce-tor.pdf> accessed 11 May 2022.

62 Sisters Inside and the Institute for Collaborative Race Research (ICRR), ‘The State as Abuser: Coercive Control in the Colony’ (Joint Submission on Discussion Paper 1 of the Women’s Safety and Justice Taskforce) app 1.

63 ibid 16.

64 ibid 6.

65 For example, ibid; Marlene Longbottom and Amanda Porter (Submission on Discussion Paper 1 of the Women’s Safety and Justice Taskforce, 16 July 2021).

66 Sisters Inside and ICCR (n 62) 3–5. See also Longbottom and Porter (n 65).

67 ALRC and NSWLRC (n 55) [2.96].

68 See Marianne Hester, ‘The Three Planet Model: Towards an Understanding of Contradictions in Approaches to Women and Children’s Safety in Contexts of Domestic Violence’ (2011) 41(5) British Journal of Social Work 837; Julie Stubbs and Jane Wangmann, ‘Competing Conceptions of Victims of Domestic Violence within Legal Processes’ in Dean Wilson and Stuart Ross (eds), Crime, Victims and Policy: International Contexts, Local Experiences (Palgrave Macmillan 2015).

69 Regina Graycar and Jenny Morgan, The Hidden Gender of Law (2nd edn, Federation Press 2002).

70 ibid 1–2.

71 ibid 2.

72 Jenny Morgan, ‘Homicide Law Reform and Gender: Configuring Violence’ (2012) 45(3) Australian & New Zealand Journal of Criminology 351, 351.

73 Hear Her Voice vol 2 (n 57) 272.

74 Reg Graycar, ‘Frozen Chooks Revisited: The Challenge of Changing Law/s’ in Rosemary Hunter and Mary Keyes (eds), Changing Law: Rights, Regulation and Reconciliation (Ashgate 2005) 54.

75 Hear Her Voice vol 2 (n 57) 272.

76 Hear Her Voice vol 3 (n 43) 712.

77 Hear Her Voice vol 2 (n 57) 32.

78 Hear Her Voice vol 1 (n 42) recommendations 42, 43, and 70.

79 Megan Davis and Emma Buxton-Namisnyk, ‘Coercive Control Law Could Harm the Women It’s Meant to Protect’ The Sydney Morning Herald (2 July 2021) <www.smh.com.au/national/nsw/coercive-control-law-could-harm-the-women-it-s-meant-to-protect-20210701-p5861e.html> accessed 3 August 2022.

80 Hear Her Voice vol 3 (n 43) 798.

81 Nheu and McDonald (n 31) xxv.

82 See Hear Her Voice vol 1 (n 42) xlvii. For the context of the second part of its work see Women’s Safety and Justice Taskforce, ‘Taskforce to Examine Sexual Violence and Women as Offenders’ <www.womenstaskforce.qld.gov.au/about-us/news/news-items/taskforce-to-examine-sexual-violence-and-women-as-offenders> accessed 11 May 2022.

83 Nheu and McDonald (n 31) 126.

84 Domestic Violence NSW (Submission No 132 to the Joint Select Committee on Coercive Control, 12 February 2021) (‘Submission No 132’).

85 NSW Law Reform Commission, Report 103: Apprehended Violence Orders (2003).

86 Graycar and Morgan (n 1) 409.

87 For example, South West Sydney Legal Centre (Submission No 77 to the Joint Select Committee on Coercive Control, 29 January 2021) 4; Submission No 132 (n 84).

88 For example, Muslim Women Australia (Submission No 86 to the Joint Select Committee on Coercive Control, 29 January 2021) 3; Western NSW Community Legal Centre (Submission No 122 to the Joint Select Committee on Coercive Control, 11 February 2021) [2.3]; Women’s Legal Service NSW (Submission No 140 to the Joint Select Committee on Coercive Control, 19 February 2021) 10 (Submission No 140); Economic Abuse Reference Group (Submission No 143 to the Joint Select Committee on Coercive Control, 22 February 2021) 3–4.

89 Email from Dora Oravecz, Committee Manager, Joint Select Committee on Coercive Control to author (21 January 2021).

90 Discussion Paper 1 (n 44). See criticism of this time frame: Sisters Inside and ICRR (n 62).

91 Nheu and McDonald (n 31) 210.

92 ibid xxii.

93 Miranda Kaye, Jane Wangmann and Tracey Booth, ‘Preventing Personal Cross-Examination of Parties in Family Law Proceedings Involving Family Violence’ (2017) 31 Australian Journal of Family Law 94, 104.

94 For example, see the submission page for Women’s Legal Service NSW, ‘Submissions’ <www.wlsnsw.org.au/law-reform/submissions/> accessed 11 May 2022; Domestic Violence NSW, ‘Our Submissions’ <www.dvnsw.org.au/working-for-change/submissions/> accessed 11 May 2022; Djirra, ‘Djirra’s Call for Systemic Change’ <https://djirra.org.au/what-we-do/policy-and-advocacy/> accessed 11 May 2022.

95 Graycar and Morgan (n 1) 407.

96 Name supressed (Submission No 123 to the Joint Select Committee on Coercive Control, 9 February 2021) 1.

97 Graycar and Morgan (n 1) 419.

98 Nheu and McDonald (n 31) xiii.

99 For example, see Domestic Violence Victoria and the University of Melbourne, ‘The Family Violence Experts by Experience Framework: Research Report and Framework’ (2020) <https://safeandequal.org.au/wp-content/uploads/DVV_EBE-Framework-Report.pdf> accessed 23 May 2022; Australian Government, ‘National Plan to End Violence against Women and Children 2022-2032: Our Commitment to Ending All Forms of Gender-Based Violence’ (Draft, 2022) <https://engage.dss.gov.au/wp-content/uploads/2022/01/Draft-National-Plan-to-End-Violence-against-Women-and-Children-2022-32.pdf> accessed 23 May 2022.

100 ‘Report on Proceedings before Joint Select Committee on Coercive Control’ (Hearing transcript of Moo Baulch, Sydney, 24 February 2021, 50 <www.parliament.nsw.gov.au/ladocs/transcripts/2547/Transcript%20-%2024%20February%202021%20-%20coercive%20control%20in%20domestic%20relationships.pdf> accessed 5 August 2022.

101 Donna Coker, ‘Crime Control and Feminist Law Reform in Domestic Violence Law: A Critical Review’ (2001) 4(2) Buffalo Criminal Law Review 801, 811–12.

102 Graycar and Morgan (n 1) 406.

103 Joint Select Committee on Coercive Control (n 4) 120–23.

104 Discussion Paper 1 (n 44).

105 Hear Her Voice vol 2 (n 57) 8.

106 ibid 12.

107 Attorney General’s Department, Discussion Paper: Implementation Considerations Should Coercive Control be Criminalised in South Australia (2022) 2.

108 Graycar and Morgan (n 1) 407–08.

109 See also Graycar (n 74) 57.

110 Economic Abuse Reference Group (n 88) 3.

111 Nheu and McDonald (n 31) xvii.

112 This conclusion is based on the information available on the website for the Joint Select Committee.

113 See yourSAy (n 6) language button located on top right-hand corner; Women’s Safety and Justice Taskforce, ‘Women’s Safety and Justice Taskforce: Tell Us Your Ideas (Easy Read)’ (2021) <www.womenstaskforce.qld.gov.au/__data/assets/pdf_file/0004/691681/womens-safety-and-justice-taskforce-web-accessible.pdf> accessed 11 May 2022, which was available from 18 August 2021 after the Taskforce had commenced and after submissions had closed for both discussion papers.

114 See also Royal Commission into Family Violence: Report and Recommendations (Report, 2016) vol 1, 2–9; Government of Western Australia, ‘Legislative Responses to Coercive Control in Western Australia: Discussion Paper’ (2022) 3.

115 See Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, ‘Make Your Submission’ <https://disability.royalcommission.gov.au/share-your-story/make-your-submission> accessed 11 May 2022.

116 See Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, ‘Brochure: Sharing Your Experience with the Disability Royal Commission’ <https://disability.royalcommission.gov.au/publications/brochure-sharing-your-experience-disability-royal-commission> accessed 11 May 2022.

117 See Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, ‘Sharing Your Experience Video’ <https://web.archive.org/web/20220609064810/https://disability.royalcommission.gov.au/publications/sharing-your-experience-video> accessed 11 May 2022.

118 See Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Violence and Abuse of People with Disability at Home (Issues Paper, December 2020) 3; People with Disability Australia and Domestic Violence NSW, ‘Women with Disability and Domestic and Family Violence: A Guide for Policy and Practice’ (2015); Australian Institute of Health and Welfare, People with Disability in Australia 2020: In Brief (2020) 12–13.

119 Graycar (n 74) 69.

120 Lyria Bennett Moses, Nicola Gollan and Kieran Tranter, ‘The Productivity Commission: A Different Engine for Law Reform?’ (2015) 24(4) Griffith Law Review 657, 677–78.

121 Four people who gave evidence did not make a written submission.

122 See Hear Her Voice vol 3 (n 43) app 2.

123 Watego and others (n 26).

124 ibid. On misidentification also see Heather Nancarrow, Unintended Consequences of Domestic Violence Law: Gendered Aspirations and Racialised Realities (Palgrave Macmillan 2019); Heather Nancarrow and others, Accurately Identifying the ‘Person in Need of Protection’ in Domestic and Family Violence Law (Research Report, ANROWS, 2020); Ellen Reeves, ‘“I’m Not at All Protected and I Think Other Women Should Know That, That They’re Not Protected Either”; Victim-Survivors’ Experiences of “Misidentification” in Victoria’s Family Violence System’ (2021) 10(2) International Journal for Crime, Justice and Social Democracy 39.

125 Watego and others (n 26).

126 Sisters Inside and ICRR (n 62); Longbottom and Porter (n 65).

127 Attorney-General’s Department (n 50); although there is brief mention in Attorney General’s Department, Discussion Paper (n 107).

128 Submission No 132 (n 84) 20.

129 New South Wales Bar Association (Submission No 118 to the Joint Select Committee on Coercive Control, 8 February 2021) [25].

130 Longbottom and Porter (n 65). Similar calls were made in NSW by Submission No 140 (n 88) [19].

131 Hear Her Voice vol 2 (n 57) 43–54. Cf the brief overview in NSW: Joint Select Committee on Coercive Control (n 4) 14.

132 Hear Her Voice vol 1 (n 42) xiii.

133 Australian Human Rights Commission, Wiyi Yani U Thangani (Women’s Voices): Securing Our Rights, Securing our Future Report (2020).

134 Hear Her Voice vol 2 (n 57) 400.

135 ibid.

136 Graycar and Morgan (n 1) 411. For a discussion of the use of empirical data in reforms to the defence of provocation see Morgan (n 72).

137 See Vickie Chapman and Carolyn Power, ‘Help Shape New Domestic Violence Laws’ (Media Release, Government of South Australia, 9 September 2021) <https://web.archive.org/web/20210914003251/https://www.premier.sa.gov.au/news/media-releases/news/help-shape-new-domestic-violence-laws> accessed 5 August 2022.

138 This is not unusual for parliamentary inquiries – but itself should raise questions about whether this is appropriate or sufficient.

139 15 media articles are cited (one twice), compared to 10 articles/reports/briefs by academics or research bodies such as ANROWS (with three citations) and the Australian Institute of Criminology (with three citations), eight citations to other law reform body reports (from three reports), 13 citations to one Domestic Violence Death Review Team (DVDRT) annual report, and single citations to reports by the NSW Sentencing Council and the Victorian Auditor General, and to statistical reports by the Australian Institute of Health and Welfare, NSW Bureau of Crime Statistics and Research and the Australian Bureau of Statistics.

140 For example, Submission No 132 (n 84); Women’s Safety NSW (Submission No 133 to the Joint Select Committee on Coercive Control, 13 February 2021).

141 Natalia Hanley and others, ‘Improving the Law Reform Process: Opportunities for Empirical Qualitative Research?’ (2016) 49(4) Australian & New Zealand Journal of Criminology 546, 547.

142 For example, Charlotte Barlow and others, ‘Putting Coercive Control into Practice: Problems and Possibilities’ (2019) 60(1) British Journal of Criminology 160; Paul McGorrery and Marilyn McMahon, ‘Criminalising “the Worst” Part: Operationalising the Offence of Coercive Control in England and Wales’ (2019) 11 Criminal Law Review 957; Marsha Scott, ‘The Making of the New “Gold Standard”: The Domestic Abuse (Scotland) Act 2018’ in McMahon and McGorrery (eds) (n 33); Charlotte Barlow and Sandra Walklate, ‘Gender, Risk Assessment and Coercive Control: Contradictons in Terms?’ (2021) 61(4) British Journal of Criminology 887; Iain Brennan and others, ‘Policing a New Domestic Abuse Crime: Effects of Force-Wide Training on Arrests for Coercive Control’ (2021) 31(10) Policing and Society 1153.

143 Hear Her Voice vol 2 (n 57) 12.

144 ibid 17.

145 Royal Commission into Family Violence: Report and Recommendations (n 114) 2.

146 Royal Commission into Family Violence: Commissioned Research (Report, 2016) vol VII.

147 Graycar and Morgan (n 1) 407.

148 Hanley and others (n 141) 548.

149 Joint Select Committee on Coercive Control (n 4) 119, app 3. Similarly in the context of SA see Attorney General’s Department (n 107) 2.

150 As the author did for the detailed breakdown provided in the paragraph in which n 103 appears.

151 These categories are not exclusionary and an individual may identify across categories.

152 Hear Her Voice vol 2 (n 57) 12.

153 ibid 43.

154 ibid 48.

155 ibid 51.

156 Hear Her Voice vol 3 (n 43) app 3.

157 Graycar and Morgan (n 1) 403.

158 Joint Select Committee on Coercive Control (n 4) xiv, recommendation 1. Other recommendations also address implementation: see xvi–xvii, recommendation 19; xvii, recommendation 20.

159 Queensland, Parliaentary Debates, House of Assembly, 27 October 2021, 8379 (Vicki Chapman, Attorney-General).

160 See NSW Government (n 41); Attorney General’s Department (n 107).

161 Julia Quilter, ‘Getting Consent “Right”: Sexual Assault Law Reform in New South Wales’ (2021) 46(2) Australian Feminist Law Journal 225, 229.

162 Graycar and Morgan (n 1) 403.

163 Hunter (n 20) 6.

164 Julia Quilter, ‘Evaluating Criminalisation as a Strategy in Relation to Non-Physical Family Violence’ in McMahon and McGorrery (eds) (n 33) 124.

165 Joint Select Committee on Coercive Control (n 4) iv.

166 Quilter (n 164) 124.

167 ibid 126 (emphasis removed).

168 Joint Select Committee on Coercive Control (n 4) 21–22, 24, 27, 28, 36.

169 Jane Wangmann, ‘Coercive Control as the Context for Intimate Partner Violence: The Challenge for the Legal System’ in McMahon and McGorrery (eds) (n 33) 230–231.

170 ibid 230.

171 See NSW Domestic Violence Death Review Team, Report 2017–2019 (2020) 154 and its previous reports. See also Teresa O’Sullivan, ‘Inquest into the Deaths of John, Jack and Jennifer Edwards’ (Coroners Court of NSW, 7 April 2021); Jane Bentley, ‘Non-Inquest Findings into the Death of Fabiana Yuri Nakamura Palhares’ (Coroners Court of Queensland, Southport, 20 January 2021).

172 Quilter (n 164) 126 (references omitted).

173 While the NSW Inquiry makes recommendations around primary prevention and community education, the way the Queensland Taskforce packages its recommendations is more detailed, cohesive, and far-reaching.

174 Heather Douglas, Women, Intimate Partner Violence, and the Law (Oxford University Press 2021) 6 (references omitted).

175 Audrey Macklin, ‘Law Reform Error: Retry or Abort?’ (1993) 16(2) Dalhousie Law Journal 395, 399.

176 ibid.

177 Hear Her Voice vol 1 (n 42) xlvi, recommendation 1.

178 ibid xlvi, recommendation 2.

179 ibid lix, recommendation 31. See also ibid lix–lxii, recommendations 32–37.

180 Ben Smee, ‘Women’s Advocates Demand Royal Commission into “Cultural Issues” in Queensland Police’ The Guardian (Australia, 4 December 2021) <www.theguardian.com/australia-news/2021/dec/04/womens-advocates-demand-royal-commission-into-cultural-issues-in-queensland-police> accessed 11 May 2022.

181 See Sisters Inside and ICRR (n 62); Longbottom and Porter (n 65).

182 Queensland Government (n 48) 6.

183 Matt Dennien, ‘Qld Orders Royal Commission into Police Response to Domestic Violence’, The Brisbane Times (10 May 2022) <www.brisbanetimes.com.au/national/queensland/qld-orders-royal-commission-into-police-response-to-domestic-violence-20220510-p5ajye.html> accessed 23 May 2022. This article was written prior to the public hearings for the Commission and prior to it being granted an extension of time to 14 November 2022.

184 Hunter (n 20) 8.

185 One of the advantages of permanent law reform bodies is that they can monitor their own recommendations: Anita Mackay and Jacob McCahon, ‘Comparing Commissions, Inquests and Inquiries: Lessons from Processes Concerning Family Violence and Child Protection in Victoria’ (2019) 45(3) Monash University Law Review 531, 550.

186 Hear Her Voice vol 1 (n 42) lxxxii–lxxxiv, recommendations 85–89.

187 Victorian Government, ‘The Family Violence Reform Implementation Monitor’ <www.fvrim.vic.gov.au/family-violence-reform-implementation-monitor> accessed 11 May 2022.

188 Joint Select Committee on Coercive Control (n 4) xvii, recommendation 20.

189 NSW Government (n 41) 6.

190 Joint Select Committee on Coercive Control (n 4) [5.101]–[5.103].

191 ibid 79.

192 Jan Shuard, Monitoring Victoria’s Family Violence Reforms: Accurate Identification of the Predominant Aggressor (Office of the Family Violence Reform Implementation Monitor 2021).

193 Royal Commission into Family Violence: Report and Recommendations (n 114) recommendation 41.

194 Shuard (n 192) 5.

195 ibid i.

196 Graycar and Morgan (n 1) 395.

197 Since the completion of this article the NSW Government has released an exposure Bill for consultation. See <https://www.nsw.gov.au/have-your-say/coercive-control-exposure-draft-bill#:~:text='Coercive%20control'%20is%20a%20form,sexual%2C%20psychological%20or%20financial%20abuse.> accessed 9 August 2022. Once again there is a short time frame (from 20 July to 31 August 2022). Various organisations and individuals have called on the Government to significantly extend this time frame: Letter from The National Women’s Safety Alliance and DV NSW to the Hon Natalie Ward, Minister for Women’s Safety and the Prevention of Domestic and Sexual Violence (26 July 2022). The Government refused to extend the time for this consultation: Letter from the Hon Natalie Ward, Minister for Women's Safety and the Prevention of Domestic and Sexual Violence to Ms Elise Phillips, Interim CEO, Domestic Violence NSW (15 August 2022).

198 Quilter (n 161) 7.

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Notes on contributors

Jane Wangmann

Jane Wangmann is an Associate Professor Jane Wangmann, Faculty of Law, University of Technology Sydney (UTS). Member of Law Health Justice Research Centre.