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March 21, 2023

Family and personal violence – the law plays catch up

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How can it be that the response of the Prime Minister’s office to an allegation of rape in parliament house was to background journalists negatively about her partner? And that this bullying and re-victimising of the victim did not excite, at the very least, a police or judicial inquiry?

How can it be that childhood victims of institutional violence are able to apply for redress of up to $150,000, but that childhood victims of family violence can only access the pathetic nominal crime compensation payments? (Not that I begrudge for one second the redress payments – it is the stark contrast in quantum that is galling).

How can it be that a footballer rapist who pleads not guilty, but is convicted, gets a minimum of less than four years prison, and yet a drug supplier gets 14 years?

The answers to these questions lie in the failure of the law to change and reflect community values. Take for example, sentencing. The key starting point in determining the prison time for a crime is the maximum penalty – that is parliament’s signal to the court on relative seriousness. It impacts on policing priorities too. The maximum penalty for different crimes shows how stuck in convict days the law really is.

An assault carries a maximum penalty of two years, and so does breaching an apprehended domestic violence order. That places these offences in the same realm as many traffic offences. Compare those to the heinous crime of shoplifting (five years), harassing a police officer (five years) or break and enter (14 years). The unheard-of-in-Mullumbimby crimes of passing a joint from one person to another at a party, or of growing a couple of cannabis plants each carry ten years. A nineteen-year-old was recently found with 120g of psilocybin, and he faces a maximum penalty of life imprisonment. Gulp!

This property/drug law bias exists even in recently amended legislation – like the Bail Act. Effectively, there are a whole raft of offences where there is a presumption against bail. Predictably, breaching domestic violence orders and domestic assault are not included.

So, where are the solutions?

First, let’s cut the sentences and bail presumptions for offences that are just not seen as that serious anymore and which are completely out of whack with community values. I for one would rather be burgled than punched in the face. I’d rather be offered a joint than threatened with violence. I certainly don’t equate a rather mediocre haul of magic mushrooms with murder.

Second, let’s fund the Family Court properly and oversee its functioning so as to avoid the chronic delays. Did you notice how quickly Christian Porter got into the Federal Court for his defamation against the ABC? Imagine if a couple unable to sort out their parenting arrangements could have their issues determined so swiftly. In what parallel universe does defamation trump children? One of the key factors in family violence are the frustrating delays in the court system that lead to the need for self-help, loss of faith in the system, despair, stress and uncertainty. The delays also often favour the most intransigent. It is possible to fund the Family Court to provide timely access to justice if the government truly had the will.

Third, let’s make family and personal violence the priority in the criminal justice system. So many resources are being wasted in unwinnable wars on victimless crimes. How much does it cost to keep someone in prison for 14 years? Enough to pour plenty more resources into supporting refugee resettlement, anti-violence programs, specialist courts, compensation and counselling. And police training too, because arresting the victim happens way too often.

Finally, we need to de-mystify and deconstruct the whole ‘family is sacred’ thing. It is not so long ago that women could not, by law, be ‘raped’ in a marriage. It is only recently that women could take out a loan in their own name, or work after they were married. Truth be told, some families are safe, and some are not. Some families are havens of joy, others are temples of fear.

Returning to the briefing of journalists by the Prime Minister’s office, Peter Van Onselen, Network Ten political editor (and hardly a lefty activist) broke the ground on this story with a telling revelation – he said the Prime Minister’s office was deliberately smearing Higgins’s partner. An internal inquiry was established. Like an episode of [ITAL]Yes Minister really. Not one journalist would tell the head of department who said what because it was delivered ‘off the record’. They were not compelled to provide the information because it was just an internal inquiry.

In my humble opinion, this is one of the great political scandals of our time, typical of institutional response to allegations of sexual assault – first deny, then call the complainant names (‘lying cow’), then call into question her motives, then attack her loved ones. This, from the office of the Prime Minister no less. If they can hold Royal Commissions into pink batts, trade unions and even oil-for-food programs, I’d like to see one that gets to the guts of this disgrace – because it goes to the heart of how we, as a society, respond to personal violence.


Recently retired magistrate David Heilpern. Photo Jeff Dawson

David Heilpern is a recently retired magistrate and the author of several law-related books, journal articles and reported judgments.

He was the youngest magistrate in Australia when appointed in 1998.

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  1. Yes, David. The beat-list just goes on & on. From pink bats to rape – a fetching title. Internal
    [lying cow] inquiry never supported by our PM joker who accepts sexual assault along with
    the rest of your listings. The law is full of white lies & shrunken hearts. How to rectify? An
    all-stir-up by an angry jury I guess.

  2. Nice dream there David. It would be nice to see a change in all areas you suggest but as per usual it’s a top heavy system built on lies and misconduct. Corruption is becoming acceptable and anyone standing up to the bigotry and lies gets crushed and defamed. Only one way it can go from here and that’s all been foretold and foreseen by God.
    Stand on the right side of the fence bcos there is no sitting on the fence anymore.

  3. David, great article! I feel there is a real need for major changes in Australia. We have no Bill of Rights, so can get left overseas during a Pandemic, down to losing our driving licence for a minor misdemeanor of having trace amounts of cannabis in the blood, in an area where there is very little Public Transport.
    We have a Federal Government that appears to be corrupt, but of course will not approve an ICAC to probe these allegations. We also have a Prime minister who appears to know nothing about the corrupt information coming from his Office, such as the Brittany Higgins whiteanting.

    Personally, I hope this lot is voted out at the next election, hopefully to be replaced by a government that is not afraid to implement an ICAC. Personally, I will be supporting independents, because I feel only by having some independents with balance of power might we see an honest government. It is great news that there is a group intent on ´Voting Angus Out´ (Angus Taylor, of fame for whiteanting serious reform for Climate action & alleged misdemeanors with his family trust property). Perhaps the rest of the alleged miscreants could also face such opposition? Mind you, that could lead to a parliament full of Independents! Would that be such a bad thing?

  4. REVEALING & INSIGHTFUL AS USUAL DAVID. So many laws are outdated, inconsistent & actually way behind current public opinion or behaviour. Seems that the issues that truly matter get the least support & the least funding. OMG when will marijuana be decriminalised (at least ) and other violent/malicious crimes be awarded stiffer penalties ? Does this all depend upon the cash in your pocket re lawyers fees ? David we need the likes of you back in the court room ,but I have the feeling you have had a gut full of the system ? Haven’t we all ? Your efforts have been remarkable , so do have a happy retirement.


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