Domestic Violence Criminalisation Then and Now: Revisiting the Emergence of the Hybrid Civil/Criminal Protection Order in NSW

This article considers the changing face of legislative measures to criminalise domestic violence. Taking NSW as a case study, we contrast contemporary criminal law and policing practices that are applied to domestic and family violence – including legislative measures and rhetoric developed in the counter-terrorism context – with the cautious and nuanced way in which feminist activists first approached legal change in this area in the 1970s and 1980s. Criminal law was engaged in a customised form: the civil-criminal domestic violence order (DVO). This form of hybrid criminalisation was prima oriented towards (victim) protection rather than (perpetrator) punishment. We argue that historicising the criminalisation of domestic violence offers a valuable perspective for appraising recent shifts towards expanding the criminal law’s reach and punitiveness, and pursuing more aggressive and proactive policing practices. Our examination of the creation of the DVO in NSW also offers an alternative genealogy for the rise of hybrid criminalisation as a prominent feature of contemporary criminal law systems. We draw attention to the non-punitive origins of this modality, in contrast to the dominant critical narrative of hybridity – as an illegitimate form of criminalisation that evades conventional justice system human rights protections.