A domestic violence protection order is the most common legal response to domestic and family violence in Australia. Every year, Queensland courts issue about 25,000 orders to protect people from domestic violence.
But in a system originally intended to protect women from violence, our research shows that Aboriginal and Torres Strait Islander (ATSI) women are being swept up in domestic violence-related offences in disproportionate numbers compared with the overall population. Many are ending up in prison as a result.
How the domestic violence protection system works
To understand the problem, it first helps to define certain terms and how the domestic violence protection system works.
In Queensland, the “respondent” is the person who is issued with a domestic violence protection order and the “aggrieved” party is the person being protected by the order.
Most protection orders require respondents to stay away from the aggrieved or stop their violent behaviour toward the aggrieved. If the respondent breaches the conditions of the protection order, he or she can be charged with a criminal offence and possibly imprisoned.
In our study, we examined Queensland court data on protection order applications and breaches for the year 2013-14. We found a dramatic over-representation of ATSI people – especially women – in the protection order system.
First, ATSI people make up just 4.2% of the Queensland population. Yet, our research found that ATSI people were respondents in 21% of domestic violence protection order applications.
We also found that police play a significant role in deciding who is issued with a protection order. In most applications in our study, police applied for the order on behalf of the aggrieved (79%). However, police were more likely to apply for a protection order if the aggrieved was an ATSI person (90%). When police are involved in this way, an order is much more likely to be made by the court.
In Queensland, ATSI people were also disproportionately charged with breaches of protection orders (34% of all charges) compared to their share of the population. And in the sentencing phase, 43% of ATSI people charged with breaches of protection orders were sent to prison.
Women are typically much less likely to be respondents in domestic violence cases and charged with breaches of a protection order. However, of the women imprisoned for breaches in our study, 69% of them were ATSI women.
The causes for violence in ATSI communities
The Queensland data tell a familiar story about the over-representation of ATSI people in the criminal justice system in Australia, especially the prison system. The reasons for this are largely linked with how Indigenous peoples were treated after colonisation – their loss of land, the removal of their children and the lack of recognition of their laws.
The breakup of kinship systems, destruction of ATSI culture, social and economic exclusion, homelessness and drug and alcohol abuse have followed for many. Studies show that discrimination against ATSI people is also rife, and discrimination by the police and magistrates remains a problem.
In Queensland, ATSI women are not only disproportionately targeted for domestic violence offences, they are also more likely to be victims of domestic violence compared with other women.
In another study on domestic violence in ATSI communities, Dr Heather Nancarrow interviewed people who worked in the justice system (including ATSI individuals) and found interconnected reasons that might help explain this.
First, ATSI women may be more likely to be involved in fights with family members and living in a situation of “chaos”, with a lack of rules, lack of priority given to court orders and more generalised fear of police. Her research also suggests that police often apply for protection orders on behalf of ATSI people, even when the orders aren’t wanted.
ATSI women are also less likely to have access to family protection services in remote areas, leading many to fight back as a means of self-defence in domestic violence incidents.
When these women fight back, they may not fit with stereotypical expectations of how a victim should behave: for example, vulnerable, blameless and weak. This might result in police applying for a protection order against them or charging them with breaching an order.
Many strategies have been put forth to address the over-representation of ATSI people in the justice system. Of urgent concern to us is the plight of ATSI women being incarcerated in ever-increasing numbers in a system originally introduced to protect women from violence.
Authors: Heather Douglas, Professor of Law, The University of Queensland