The ALRC has condemned a "blame the victim" practice -- which was exposed in The Weekend Australian -- of imposing criminal sanctions on victims who withdraw abuse allegations.
Twenty Aboriginal women from regional NSW who were clients of the Aboriginal Legal Service NSW/ACT faced public mischief or false accusation charges between 2006 and last year after retracting their allegations, with three of the women receiving jail terms that were among the heaviest recorded in recent years for such offences.
The ALRC recommended in 2010 that legislation be introduced by state and territory police forces that would prevent victims charged with aiding or abetting a breach of protection orders.
Such a provision exists in NSW family violence legislation, but does not extend to charges of false accusation or public mischief.
The commission also recommended that "police codes of practice or operating guidelines, and prosecutorial policies should ensure that any decisions to charge or prosecute victims of family violence with public justice offences . . . where the conduct alleged to constitute such offences is essentially conduct engaged in by a victim to reduce or mitigate the culpability of an offender, should only be approved at the highest levels within state or territory police services, and by directors of public prosecution, respectively."
ALRC president Rosalind Croucher said she would be concerned if vulnerable women were being prosecuted after withdrawing domestic violence allegations.
"The point of this legislation is protective and you turn it on its head if you charge the person with aiding and abetting a breach, it's missing the point," Professor Croucher said.
"There is a need to make sure that prosecutors and police 'get' the dynamics of family violence. Our research and consultations indicated that at times there is need for better understanding and recognition of the dynamics and that withdrawal, from a victim's point of view, may not necessarily be of their own volition.
"In fact, rather than being a problem, it is actually an illustration of the extent to which that person needs protection."
Helen Campbell, the executive officer of Women's Legal Services NSW, said the practice of charging victims was disturbing: "It's an inappropriate and unnecessarily heavy-handed approach and it really reflects a lack of understanding of what domestic violence does to its victims."
Susan Smith, co-ordinator of the Sydney Women's Domestic Violence Court Advocacy Service, also joined the call for such charges to go through the DPP. "There could be a huge amount of pressure put on these women to recant (police) statements," Ms Smith said. "I think that would be another safeguard, if they went through the DPP rather than be handled at that local level."
